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A Child Born During the Marriage but Not of the Marriage: Divorce and Paternity

A Child Born During the Marriage but Not of the Marriage: Divorce and Paternity

What does divorce and paternity have in common? When a child is born during a marriage Texas law presumes the husband is the father of that child. See Texas Family Code section 160.204(a). Often times, clients file for a divorce and must deal with a child born during the marriage to a man who is not the husband.  Because the husband is presumed to be the child’s father under the law, the biological father must be legally adjudicated to be the child’s parent or the husband will remain the child’s legal father for all purposes.  The law does allow a man to submit to genetic testing to deny paternity but if the actual father is known, he will need to be addressed.  All of this must be done during the divorce as children issues are required to be incorporated  within the divorce action.  See Texas Family Code section 6.406.

divorce and paternity in Texas
Houston Divorce and Paternity Lawyers

Classifications of Fathers

There are four classifications of fathers in Texas:

(1) Adjudicated Father – a father who has been legally recognized as a child’s father by a court.

(2) Presumed Father – a father who meets the requirements under section 160.204 of the Texas Family Code;

(3) Acknowledged Father – a man who has properly signed and filed an acknowledgment of paternity.

(4) Alleged Father – a man who is alleged to be the biological father of a child but who does not meet the criteria set forth above.

When a child is born during a marriage that is not the husband’s, the husband is the ‘presumed’ father; the actual father is the ‘alleged father’.  If the husband signed an acknowledgment of paternity when the child was born he is the ‘acknowledged father’. Once the proper steps have been taken, the ‘alleged father’ will become the ‘adjudicated father’ and the parent-child relationship will then be established between the father and child for all purposes.

Adjudicating the Father               

Texas law will legally recognize a father who signs an acknowledgement of paternity, admits paternity in open court, or is proven to be the father by genetic testing.

An alleged father admitting to paternity in open court or who executes and acknowledgement of paternity will not be sufficient in the case of a divorce because the husband is a ‘presumed’ father or in some cases an ‘acknowledged’ father.  In the scenario stated above, genetic testing is required in order to adjudicate the biological father of the child. See section 160.631 of the Texas Family Code.  The lawyer will need to add the biological father to the divorce suit as an interested party.  Once that party is served and joined to the suit, a request for genetic testing is filed. The court will then order either the ‘presumed’ or ‘acknowledged” father and the ‘alleged’ father to submit to genetic testing along with the child. Once the testing is completed, the results are submitted to the court for findings.

In my decade of litigating divorce matters, judges have also required the filing of an acknowledgment of paternity along with the husband’s denial.  Although not required by law and somewhat redundant, taking the additional step to satisfy the court will ultimately speed up the process of the divorce.

Things to Think About

 If you are going through a divorce and find yourself in the situation described in this article, you will need to be prepared to provide the alleged father’s information and expect that your divorce will take longer than the average.  If you are a family law practitioner you will need to be very careful and file the appropriate pleading to expedite the divorce along with a proper adjudication.

Most genetic testing in Houston and surrounding areas is performed by National Screening Center located in downtown Houston.

Here at The Rudisel Law Firm, P.C., we can assist you with divorce and paternity issues related to the this article.  Our attorneys have the knowledge and experience to tackle these tough issues.  Contact our Houston divorce lawyers here at The Rudisel Law. P.C. if you feel a change has occurred since your divorce was finalized that warrants a modification.

Shawn M. Rudisel is a Houston based divorce attorney, focusing exclusively on family law issues. Connect with Shawn M. Rudisel, on Google+ at +Shawn Rudisel