Paternity – Paternity means fatherhood or the relationship of a father. Under Texas law, if a couple is married at the time a child is born or if the child is born before the 301stday after the date the marriage is terminated by death, divorce, annulment, or declaration of invalidity, there is a presumption that the husband is the biological father of the child. If a man and woman are not married, he has no rights or responsibilities as the child’s father until legal paternity has been established. If paternity is never established, a child born to an unwed mother does not have a father under Texas law.
The Texas Family Code has established two ways to determine paternity. Both parents can sign a document called an Acknowledgment of Paternity (AOP) or paternity can be established through a court proceeding. If both parents agree to sign an AOP, there are certain issues which must still be resolved, such as visitation, custody, and other parental rights such as the right to review the child’s school or medical records.
If the parents of the child choose to voluntarily acknowledge paternity, the AOP can be signed before the child is born or in the hospital at the time the child is born. If the AOP is signed at the hospital at the time of the child’s birth, the names of both parents will be placed on the birth certificate. If the parent’s voluntarily acknowledge paternity, the non-custodial parent, which is usually the father, will be responsible for paying child support and may also petition to court for visitation or custody.
If the AOP is signed at any time after the hospital has mailed the birth certificate to the Vital Statistics Unit, the hospital will charge a fee for adding the name of the father to the birth certificate. The completed AOP should be sent to the Vital Statistics Unit.
There are instances when a father signs an AOP and later becomes doubtful of whether he is actually the father of the child. In such instances, a father has a couple of options. First, if less than 60 days have passed since the AOP was signed, the father can sign a Petition to Rescind. The father can only file the Petition to Rescind if he has not been a party to a court case involving the child. If the mother agrees that he is not the father, the court will declare that he has no legal rights or obligations to the child. On the other hand, if the mother insists that he is the father or says that she is not sure who the father is, the court will hold a hearing to determine paternity.
Secondly, if the mother files any type of proceeding against a father within 60 days of signing the AOP, the father can ask that the AOP be canceled. The court will then hold a hearing to decide the issue of paternity.
If a man becomes doubtful of whether he is the father of a child 60 or more days after signing an AOP, in order to challenge it, he must file a lawsuit. To successfully challenge a voluntary acknowledgment, a man must show that the AOP was signed under fraudulent conditions, duress, or mistake of fact. A lawsuit challenging a voluntary AOP must be filed within four years of the date it was signed. A minor who signs an AOP may challenge it within four years of reaching age 18.
Suits challenging a voluntary acknowledgment of paternity are very technical and complicated. Therefore, it is advisable to retain an experienced attorney.
It is very common for a mother to file a paternity suit against the man she believes is the father of the child. In such situations, as long as the man has not signed an AOP, the court will decide the issue of paternity. Not only may the mother file a paternity suit, the child or a governmental agency can file the suit.
Once the suit has been filed, the petition will be served on the father and he will have a period of time to answer. After which, a hearing date will be set. If a party to a paternity suit fails to appear at the hearing, a default judgment will be entered against that party and in favor of the other party.
The hearing will be held before a judge or a child support special master. At the hearing, if the alleged father admits paternity, he will be adjudicated the father of the child and ordered to pay child support. If the alleged father denies paternity, the court will order a paternity (DNA) test.