I am not the Biological Father but I want to be – Paternity by Estoppel?

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Divorce Attorneys in Houston – In the past 12 months, my office has represented three different Husbands each going through their own Texas divorce who all had cases in which their wife has had a child with another man. The facts of each case have varied in some of the cases the husband was aware the wife had cheated on them but not that the child was not theirs biologically.

The one thing that was consistent in all three of the cases was that the husband had bonded and love the child and did not care if the child was his biologically. They wanted to remain the father of the child with all the duties and responsibilities that entailed even after the marriage was over.

The facts and the people were different in each one of the three cases so all the twists and turns of the cases played out a little differently. In this blog article, I am going to discuss the various applicable Texas Laws that should be contemplated when contemplating a case involving paternity by Estoppel.

WHAT IS PATERNITY BY ESTOPPEL?

The doctrine of paternity by estoppel is most often applied in child support cases to either preclude a man who has held the child out as his own from avoiding support of the child after his relationship with the child’s mother has ended.

However, it can also be used to preclude a mother who held one man out as her child’s father from denying him a relationship with the child as the father later.

When I handled my first one of these cases I remembered this doctrine from law school and thought I would ask some of my colleagues for their help in getting caught up on applying it in the real world. Unfortunately, this did not work out very well. Most the Texas family law attorneys did not know what I was talking about. However, with a lot of research, I found a few Texas cases on point that allowed me to create the necessary tools to fight these cases in court.

CUSTODY BATTLES ARE EXPENSIVE

Houston Divorce Attorneys – One of the things I caution someone contemplating fighting a case involving paternity by estoppel is that it may get very expensive. This partly because is a fact intensive issue and partly because it is also a fight regarding conservatorship of a child.

In many of my cases I can give my clients a guestimate regarding the range of potential costs based on where their case ends up in the process. I am also able to tell them what similar cases have averaged as far as costs.

The cases I have had which have been outliers to this range and cost averages have been cases where there is some sort fight over conservatorship of a child.

PRESUMPTION OF PATERNITY – MOTION TO DENY GENETIC TESTING

In my cases discussed above the issue of paternity came up during the divorce process because the wives decided to bring up that their husbands were not the genetic father of the children. One of my first battles in one of these cases was over DNA testing.

A wife had on her own without agreement or Court Order conducted a DNA test and was trying to get it admitted to show that her husband was not the Genetic father of the child. In response, we filed a “Motion to Deny Genetic Testing and Objection to Admissibility of Results of Genetic Testing.”

A COURT CAN DENY A MOTION FOR GENETIC TESTING

Under the Family Code Section 160.204 “A man is presumed to be the father of a child if he is married to the mother of the child and the child is born during the marriage”

Divorce Attorneys Houston – When a child has a presumed or acknowledged father, a court can deny a motion for genetic testing based on equity. See Tex. Fam. Code §160.608(a), (f). To deny the motion, the court must find, based on clear and convincing evidence, that (1) the mother or father engaged in conduct that estops either party from denying parentage and (2) disproving the father’s relationship with the child would be inequitable. See id. §160.608(a), (d), (f). In determining whether testing would be inequitable, the court must consider the child’s best interest. See id. §160.608(b), (f). To determine the child’s best interest, the court must consider the following factors:

1. The length of time between the date the parentage suit was filed and the date the presumed or acknowledged father was placed on notice that he may not be the genetic father. See id. §160.608(b)(1), (f).
2. The length of time the presumed or acknowledged father assumed the role of the child’s father. See id. §160.608(b)(2), (f).
3. The facts surrounding the presumed or acknowledged father’s discovery of his possible nonpaternity. See id. §160.608(b)(3), (f).
4. The nature of the relationship between the child and the presumed or acknowledged father. See id. §160.608(b)(4), (f).
5. The age of the child. Id. §160.608(b)(5).
6. Any harm that may result to the child if presumed or acknowledged paternity is successfully disproved. See id. §160.608(b)(6), (f).
7. The nature of the relationship between the child and the alleged father. Id. §160.608(b)(7).
8. The extent to which the passage of time reduces the chances of establishing the paternity of another man and a child-support obligation in favor of the child. Id. §160.608(b)(8).
9. Any other factors that may affect the equities arising from the disruption of the relationship between the child and the presumed or acknowledged father or the chance of other harm to the child. Id. §160.608(b)(9), (f).

GENETIC TESTING UNDER TEXAS FAMILY CODE 160.502

Divorce Attorney in Houston – If a child has a presumed, acknowledged, or adjudicated father, the results of genetic testing are inadmissible to adjudicate parentage unless performed; except:

1. With the consent of both the mother and the presumed, acknowledged, or adjudicated father; or
2. Under an order of the court under Section 160.502.

Based on Texas Family Code 160.502 we were initially able to keep out the genetic results because they had not been conducted by agreement or by court order. We then had to have a court hearing ad described above on whether the Court would order genetic testing… Continue Reading