Mistaken Paternity (Paternity Fraud)

Paternity Fraud - Family Law Attorney Sonya B. CoffmanMistaken paternity-also known as paternity fraud-occurs where, because of mistake or fraud, a court has held a man to be the father of a child who is not his biological child and, more important, required the man to pay child support.

In Texas, there is a four-year statute of limitations for challenging paternity. Texas law, however, provides a procedure for victims of paternity fraud to challenge their alleged paternity even though the four-year limitations period may have run. Under the law, a man may challenge paternity no later than the second anniversary of the date on which he first learned that he is not the child’s biological father.

Only certain situations fall within the law-specifically, where there was no genetic testing and (i) a man was held by a court to be the father of a child, or (ii) a man signed an acknowledgement of paternity based on misrepresentations by the mother that he is the child’s father. Paternity, however, may not be challenged if (i) the man adopted the child, (ii) the child was conceived by assisted reproduction agreed to by the man, or (iii) the man is the child’s intended father under a gestational agreement approved by a court.

The Process

The process of challenging paternity consists of the following steps.

Step No. 1. A man must first file a petition with the court requesting the parent-child relationship be terminated. The petition must allege sworn facts showing (i) the man is not the child’s biological father, and (ii) the man signed an acknowledgment of paternity or previously failed to contest paternity because of his mistaken belief that he is the child’s biological father based on misrepresentations made by the child’s mother. The petition must also be served on the child’s mother.

Step No. 2. The court will then hold a pretrial hearing to determine whether the sworn allegations in the petition establish a base line case for terminating the parent-child relationship. The child’s mother must be notified of the hearing and may attend and be heard. If the court determines the claims in the man’s petition have merit, the court will order the man and the child to undergo DNA testing.

Step No. 3. If the results of the DNA testing confirm the man is the child’s biological father or do not exclude the man as the child’s biological father, the court will deny the man’s request for termination of the parent-child relationship.

Step No. 4. If, on the other hand, the results of the DNA testing exclude the man as the child’s biological father, the court must enter an order terminating the parent-child relationship from that point forward.

An order terminating the parent-child relationship ends the man’s obligation to pay child support for periods after the date the order is entered. The court’s order, however, does not affect the man’s child support obligations for periods before the date the order is entered.

At any time before the court enters the order, the man may request the court also order possession of or access to the child by the man after entry of the order. The court may order such access to the child only if the court determines that denying the man’s request would significantly impair the child’s physical health or emotional well-being. The court also may require the child or any party to the proceeding to participate in counseling with a family therapist, as well as designate the party responsible for paying the cost of such counseling.

You should be responsible for financially supporting a child only if you are the child’s biological father or you agree to do so with full knowledge of all of the facts. If you believe you are the victim of mistaken paternity or paternity fraud, call Sonya Coffman. Because . . . family matters.