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Paternity, Presumed
Fathers and Genetic Testing - Who is Your Daddy?
By
Earl N Jackson
Dallas, Texas
Parentage - who is the father
of the child? A man is presumed to be the father of a child if:
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He is married to the mother and a child is born during the
marriage. The Husband is, therefore, the presumed Father. Becomes
problematic if Wife/Mother had a relationship outside of the
marriage and a child was born -- who is the father? It is presumed
that the Husband is. |
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He is married to the mother of the child and they divorced. A
child was then born by the 301st day after the date of divorce.
The former Husband is the presumed father of the child. This
usually occurs because the mother did not know she was pregnant at
the time of the divorce. So, if a child is born by the 301st day
after the date of divorce, the former husband is the presumed
father. |
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He married the mother of the child in apparent compliance with
the law but the marriage was invalid for some reason and a child
is born during the marriage or by the 301st day after the marriage
ceased - date of divorce or date of annulment. What could
invalidate a marriage - marriage under the age of 18 without
parental consent; marriage under the age of 16, a marriage to
one's step-brother or step-sister. |
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He married the mother of the child after the child was born,
he voluntarily asserted his paternity over the child; and the
assertion is voluntarily filed with bureau of vital statistics or
he is voluntarily named as the father of the child on the child's
birth certificate or he promised in a record to support the child. |
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He, during the first two years of the child's life,
continuously resided in the household in which the child resided
and he represented to others that the child was his. I call this -
common law parentage. |
The presumption of paternity may only be rebutted by (1) an
adjudication - filing a lawsuit and obtaining a court order
adjudicating the presumed father to not be the father or (2) the
filing of a valid denial of paternity together with the filing of a
valid acknowledgement of paternity, i.e., husband files a valid
denial of paternity and boyfriend of wife files a valid
acknowledgement of paternity. Call this the "Dad Substitution Rule."
| A divorce decree is an adjudication of parentage. |
Acknowledgment of Paternity
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Paternity may also be established by filing an unchallenged
acknowledgement of paternity. A valid acknowledgement of paternity
filed with the bureau of vital statistics is the equivalent of an
adjudication of the paternity of a child and confers on the
acknowledged father all rights and duties (child support) of a
parent. The acknowledgment of paternity cannot be ratified by a
court. |
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An Acknowledgment of Paternity is void if it states that
another man is the presumed father - unless the presumed father
files a denial of paternity. |
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An Acknowledgment of Paternity is void if it states that
another man is an acknowledged or adjudicated father of a child. |
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An Acknowledgment of Paternity is void if it falsely denies
the existence of a presumed or acknowledged father of a child.
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A person signing an Acknowledgement of Paternity may rescind
the document by commencing a proceeding (legal action) within 60
days after the effective date of the acknowledgement or before the
first hearing on a proceeding to adjudicate an issue related to
the child (child support). You have 60 days to change your mind
after signing the acknowledgment. |
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A person may challenge an acknowledgment or denial of
paternity within 4 years after the document was filed on the basis
of fraud, duress or material mistake of fact. If you have been
defrauded, you have four years to get it undone then you are over
and out. Doesn't matter that the child is not yours or turned out
to be yours.
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Genetic Testing
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A court must order genetic testing if requested to do so by a
party. If the presumed father refused to submit to genetic
testing, the court can take his refusal as an admission and
adjudicate the that person as the father of the child. You lose. |
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If the presumed father or the alleged father is missing
(cannot be found - he ran off), the court can order genetic
testing of relatives including dead people if the need for
genetic testing outweighs the legitimate interest of the
individuals sought to be tested. They can dig grandpa up and
test him to get a genetic test. |
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A man is rebuttably identified to be the father of the child
if the man has at least a 99% probability of paternity. If the
markers are there by 99%, you are Dad. This result may be rebutted
by other genetic testing that rebuts the 99% result. You can also
ask for a second test. If the second test proves you to be the
father, you pay for it. |
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If more than one man is identified as the father of the child,
the court shall order each man to submit to further genetic
testing. |
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Identical Brothers (Twins). If both brothers cannot be
excluded by testing as the father of the child, then the court may
rely on other evidence to adjudicate which brother is the father
of the child. |
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If a
child has a presumed, acknowledged or adjudicated father, the
results of genetic testing are inadmissible to adjudicate
parentage unless performed with the consent of the mother or under
an order from the court. You cannot get the results of a genetic
test into evidence, if both parties did not agree or the court did
not order it. The Trial Court may deny the request for genetic
testing if the conduct of the mother and the presumed father
estops (means Stop Sign - cannot proceed) that party
from denying parentage and it would be inequitable (not fair) to
disprove the father-child relationship.
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