Mistaken Paternity in the Era of Maury: The Conversation Surrounding Testing for Unmarried Couples

By: E.A. Putman 

Putmaniac Podcast. Episode 1: You Are NOT The Father

Throughout the last decade, the Maury show has become synonymous with shocking secrets, polygraph tests and paternity results. Times have indeed changed. The results of paternity has transitioned from a sensitive and well obscured undertaking to a dramatic affair clothed in overly confident individuals asserting or denying paternity and concluding with an animated “You Are/ Are NOT the Father” dance. That’s  in Maury world.

In the Lone Star State the process is a little more refined. There’s no public dancing and shouts of “I told you so” (at least I have yet to be a witness at Harris County courts). The proceeding to adjudicate parentage is part of a Texas family lawyers regular service; however, that process becomes more complex when there are multiple assertions or denials on who is the legal father. Much like pre-nuptial agreements, paternity testing for unmarried partners may be a touchy subject, but is it a necessary discussion?

“Does the truth of a biological father’s identity outweigh the seemingly uncomfortable conversation of paternity testing for unmarried partners? “

Many men are as excited as women are when they find out that they are going to become a father. They long to hear their child call them “daddy” and can’t wait for all of the incredible love and amazing moments that come along with being a father. However, what happens when a man thought he was the father of a child, and then finds out that the child isn’t biologically his?

If a child is born outside of a marriage, there is no legal father unless paternity is established. Texas Family Code Sec. 160.201(b) establishes multiple ways one can become a legal father, but for the purpose of this post, I will address the most common for unmarried couples. A father-child relationship is established by:

1. Adjudication of Paternity: an adjudication of the man’s paternity
2. Acknowledgment of Paternity: an effective acknowledgment of paternity unless the acknowledgment has been rescinded or successfully challenged; or.

There are caveats and exceptions and defenses to the abovementioned. 

Adjudication of Paternity

An adjudication of paternity is where a court determines that by genetic testing (usually but not always) a man is the legal father. This lawsuit typically commences when there is a child support suit through the Attorney General’s Office or one hires a private attorney to obtain an order on conservatorship, visitation and child support. If a man who has not been subject to genetic testing is properly served with the lawsuit and fails to answer the suit or appear in court (it happens), a default judgement may adjudicate him as the father.  If this man later determines that he is not the biological father, he may be precluded from bringing a suit to terminate paternity depending on the reason for the default which is explained further below. (Ex. “I did not come to court or contest the case because I believed the child was mine based on X, Y, Z.”)

Acknowledgment of Paternity

An Acknowledgment of Paternity (AOP) is a form signed by both the mother and the man alleging to be the father. This form, which is only available through a certified entity, is signed under penalty of perjury and it becomes a legal finding of paternity. On the form, the alleged father has to confirm either there has been genetic testing done and it has determined he’s the father or there has not been genetic testing done (and it is what it is). Regardless if there hasn’t been genetic testing performed, upon execution of this document, he becomes the legal father and has all the rights and duties of a parent, including his name being placed on the birth certificate.

An AOP is not some do-it-yourself pro se form. It is not even a form one can get from a lawyer unless that lawyer has completed the annual certification training (I am in the process). It is a very serious document because of the legal weight it carries. This very serious document even has clue or a suggestion on it that you just might want to get a paternity test before committing yourself to this obligation.  But, it happens. If an individual finds out they are not the father after signing the AOP, there is recourse.

You are NOT the Father: The Process and the Aftermath

Under Texas Family Code section 161.005, a man who signs an AOP and checked the box on the left can later challenge paternity with a DNA test. Furthermore, a man who was adjudicated the father where no DNA test was performed can later challenge paternity with a DNA test. In both cases, the father must prove that he signed the form or failed to contest parentage due to a mistaken belief that he was the child’s genetic father based on misrepresentations that led him to that conclusion. The burden (legally and emotionally) to put forth evidence that would support misrepresentations (typically from mom) could all be avoided by having that uncomfortable conversation and obtaining the test prior to establishing oneself as the legal father.

Once a court has terminated the relationship, the current child support obligation will cease. Unfortunately, a father who has been ordered to pay child support will not have recourse in terms of reimbursement. That money is gone. Furthermore, if there is past-due child support, it is still owed and that money is enforceable by  any means available for the enforcement of child support other than contempt. While Texas family law may seem unforgiving on the financial side, it still attempts to mitigate the emotional trauma of the legal dissolution between father and child. At the request of the father, court may also order visitation after termination, if denying visitation would significantly impair the child’s physical health or emotional well-being.

Genetic Testing. It is more than child support. It is more than the dynamic between the parents. The first time a parent holds their baby is a moment that forever bonds parent and child and if a man has taken on the role of parenting a child, this relationship is not something that can be easily undone by a DNA test. When a man learns that he really isn’t the father of a child he has raised and loved unconditionally, his world is turned completely upside-down. The best way around this unfortunate situation is to avoid it in the first place. Have the conversation and before any documents are signed and rights are assigned, be 99% positive.

Questions on paternity suits in Texas?  If you believe that a paternity suit will be necessary for you and your child please do not hesitate to contact The Putman Firm, PLLC.

The Putman Firm, PLLC is a family law litigation firm that handles a wide array of family matters including criminal matters that intersect family law, i.e. family violence assault cases, protective orders (criminal and civil) and allegations of child abuse. If you or someone you know is facing a challenging family matter, contact The Putman Firm, PLLC at (281) 501-9033.