Paternity and Fatherhood

Paternity and Fatherhood - Family Law Attorney Sonya B. CoffmanWebster defines “paternity” as the “quality or state of being a father” or simply, “fatherhood.” In Texas, a father–child relationship may be established by–

  • an unrebutted presumption of paternity.
  • formally acknowledging paternity.
  • adopting the child.
  • a court judicially determining paternity.
  • consenting to assisted reproduction that results in the birth of a child.
  • a court judicially determining the paternity of a child born to a gestational mother under a valid gestational agreement.

Fatherhood by Presumed Paternity

A man is presumed to be the father of a child if (i) he was married to the child’s mother and the child was born during the marriage, (ii) he was married to the child’s mother and the child was born within 300 days after the marriage ended, (iii) he married the child’s mother before the birth of the child and the child was born during the marriage (or within 300 days after the marriage ended), (iv) he married the child’s mother after the birth of the child and voluntarily claimed to be the father of the child by (a) filing a formal acknowledgement with the Texas Bureau of Vital Statistics  (b) being named as the father on the child’s birth certificate, or (c) formally promising to support the child as his own, or (v) he continuously lived in the same household with the child during the first two years of the child’s life and told others that he is the child’s father.

A man’s presumption of paternity, however, may be rebutted by (i) the mother, another man claiming to be the child’s father or another family member filing a lawsuit challenging paternity, or (ii) filing a denial of paternity with the Texas Bureau of Vital Statistics  at the same time the actual father files a valid acknowledgement of paternity.

Fatherhood by Acknowledged Paternity

A man becomes a father by, along with the mother, filing a valid acknowledgement of paternity with the Texas Bureau of Vital Statistics. An acknowledgement of paternity confers on the acknowledged father all of the rights and duties of a parent and has the same effect as a legal adjudication of paternity.

To be valid, the acknowledgement must state that (i) the child does not have a presumed father, an adjudicated father or another acknowledged father, (ii) the acknowledged father has undergone genetic testing (i.e., DNA testing) confirming that he is the biological father, and (iii) the man and the mother understand that the acknowledgement is the equivalent of a court decision and can only be challenged under limited circumstances during the following four years.

If, on the other hand, a child has a presumed father-because the mother is married to another man–a man who desires to acknowledge that he is the child’s father must file a valid acknowledgement of paternity with the Texas Bureau of Vital Statistics  at the same time the presumed father signs and files a denial of paternity. A denial of paternity, however, is not valid if the presumed father previously acknowledged paternity of the child (or did not rescind or successfully challenge a previous acknowledgement of paternity).

A person who signs an acknowledgement of paternity or a denial of paternity (i.e., the child’s mother or the man acknowledging or denying paternity) may rescind or challenge it by filing a formal court proceeding within certain time limitations. If the person challenging the acknowledgment or denial was an adult when it was signed, the challenge must be filed within four years after the date it was filed with the Texas Bureau of Vital Statistics. If the person challenging the acknowledgement or denial was a minor when it was signed, the challenge must be filed before the earlier of the person’s eighteenth birthday or the date the person gets married.

Fatherhood by Adoption

A man becomes a father by formally adopting a child.

Fatherhood by Adjudicated Paternity

An “adjudication” is a decision by a court. Thus, a man may become a father if he is found by a court to be a child’s father. This type of legal action–formally known as a suit to adjudicate parentage or a “paternity suit”–is used to prove that a man who is not a presumed, acknowledged or previously adjudicated father is, in fact, the father of a child. The only question in a paternity suit is whether the man is the biological parent of a child, which is established through genetic testing.

A paternity suit to challenge a previous court decision determining paternity is used to prove that a man whose paternity was adjudicated, in fact, is not the biological father of a child. An earlieradjudication of paternity may be disproved only through genetic testing. Because a suit to challenge a prior court decision regarding paternity is a “collateral attack” on the judgment of a court, there are significant limits on who can bring such a challenge. For example, the mother and adjudicated father cannot bring a challenge suit because they are bound by the earlier judgment.

Fatherhood by Consent to Assisted Reproduction

A man becomes a father if he consents to his wife’s assisted reproduction that results in the birth of a child. In other words, if a husband provides sperm for his wife, or formally consents to assisted reproduction by his wife, he is the father of the resulting child.

“Assisted reproduction” means a method of causing pregnancy other than sexual intercourse, including (i) intrauterine insemination, (ii) egg donation, (iii) embryo donation, (iv) in vitro fertilization and transfer of embryos, and (v) intracytoplasmic sperm injection.

Both the husband and the wife must sign a formal consent to assisted reproduction in order for it to be valid. However, even if the husband does not consent to assisted reproduction, he may still be found to be the child’s father if he and his wife openly treat the child as their own.

A husband may challenge his paternity of a child born to his wife through assisted reproduction by filing a paternity suit within four years of the date he learned the child was born and proving that he did not consent to the assisted reproduction before or after the child was born. The four–year limitation period may be extended if the court determines (i) the husband never provided sperm for or consented to assisted reproduction by his wife, (ii) the husband and wife have not lived together since the probable time of assisted reproduction, and (iii) the husband never openly treated the child as his own.

If the marriage is dissolved before the assisted reproduction occurs, the husband is not the legal father of the resulting child unless he signs a formal consent after the divorce. The husband’s post-divorce consent to assisted reproduction, however, may be withdrawn at any time before the placement of eggs, sperm or embryos.

If the husband dies before the assisted reproduction occurs, he is not the parent of the resulting child unless he signed a formal consent allowing the assisted reproduction to take place after his death.

Fatherhood by Gestational Agreement

A man becomes a father if he is adjudicated the father of a child born to a gestational mother under a valid gestational agreement.

A gestational agreement is an agreement where a woman agrees to bear the child of a married couple by assisted reproduction. The child’s genetic parents are usually referred to as the “intended parents.”

A gestational agreement is different from a traditional surrogacy arrangement. Under a traditional surrogacy arrangement, the woman giving birth to the child provides her own eggs that are artificially inseminated with the sperm of the intended father. On the other hand, under a gestational agreement, the woman giving birth to the child (the “gestational mother”) has no genetic connection with the child. The child is conceived from the eggs and sperm of the intended parents.

For a gestational agreement to be valid, (i) the intended parents must be married and medical evidence must show that the intended mother either (a) cannot carry a pregnancy to term or (b) can carry a pregnancy to term, but only at an unreasonable risk to her physical or mental health or to the unborn child’s health, (ii) the gestational mother must have delivered a child at least once before and can do so again without posing an unreasonable risk to her physical or mental health or to the unborn child’s health, and (iii) the eggs used in the assisted reproduction procedure must be from the intended parents or third parties and not from the gestational mother.

A valid gestational agreement also (i) must be in writing, (ii) entered into at least fifteen days before the date the eggs, sperm, or embryos are transferred to the gestational mother, and (iii) signed by the intended parents, gestational mother, husband of the gestational mother (if she is married at the time) and a third party egg or sperm donor, if any.

After the child is born, the gestational agreement establishes the parties’ intended relationships with the child. The intended parents become the legal parents of the child while the gestational mother and her husband and third party donors (if any) are confirmed not to be the parents of the child.

Fatherhood is an important step in a man’s life. Whether you need to establish that you are–or are not–the father of a child, call Sonya Coffman. Because . . . family matters.