Texas' New Paternity Statute: The Right Decision?

October 26, 2012

In 2011, the Texas Legislature amended multiple statutes related to paternity suits. The largest change was Senate Bill 785, dubbed the "Mistaken Paternity Law," which was signed into law on May 12, 2011. That law gives fathers the right to challenge paternity and their duty to pay child support.

Prior to the law's enactment, a man who was not the biological father of a child but who had been previously established to be the father could not be excused from child support obligations. Now, a father has the right to raise a challenge to paternity in court and request DNA testing. He may do so no later than the first anniversary of the date on which he becomes aware of facts indicating that he is not a child's genetic father.

If DNA testing shows that a pre-determined father is not the biological father of the child, the father may then stop paying child support. He will not, however, be "paid back" for the child support he already paid.

What if a non-biological father would like to continue to see the child?

Contesting paternity can take away the legal obligation to pay child support, but it can also take away any rights the father had to his non-biological child.

Father's rights that may be lost by challenging paternity include, among many others:
- The right to visitation or child custody
- The right to receive information about the child's health and education
- The right to help make decisions about the child, including health, education and religious decisions
- The right to consent to health treatments or consult with the child's health professionals
- The right to attend school events

In some cases, the father may ask the court for a possession and access order; however, the court will grant possession or access only if its denial would impair the child's health or well-being, a difficult standard for many fathers to meet.

Like in other family law cases involving children, a court must focus on the best interests of the children when making its decision. Of course, the decision to take a child away from his or her "dad," even if there is not a biological connection, can be damaging to a child, especially if there is a close parent-child relationship. That is one of the many reasons fathers must seriously consider whether challenging paternity is the best option.

Who can request DNA testing?

Fathers who believed for some time that they were not a child's biological father and were still paying child support had until September 1, 2012 to challenge paternity. At this point, those fathers are no longer able to challenge paternity unless their suspicions arose within the last year.

The Mistaken Paternity Law also does not apply to fathers who adopted their children, became fathers through consensual assisted reproduction, or signed acknowledgements of paternity knowing they were not biological fathers. In other words, if a father knew he was not the biological father and made the decision to be the child's father, then this law does not apply to him.

If you are considering challenging paternity, or your child's father would like to challenge paternity, an experienced family law attorney can help you understand the law and how it could affect you and your child.

Article provided by Kerr, Hendershot & Cannon, P.C.
Visit us at www.k-hpc.com/