While it can be a sensitive subject, if a husband has doubts about his
paternity of a child born to his wife during their marriage, it is critical
that this issue be considered in the divorce proceeding and addressed
as soon as possible. When paternity is at issue, time is of the essence
both in the interest of stability for the child, as well as protecting
the presumed father’s rights.
In addition to biological and legal fathers, the Texas Family Code identifies
several other types of fathers, including "presumed" fathers.
If a man is married to the mother at the time the child is born, or was
married to the mother less than 301 days before the child’s birth,
he is considered a presumed father. Tex. Fam. Code §160.204(a)(1),(2).
This status as a presumed father carries with it many legal implications.
The laws impacting presumed fathers can become particularly important in
divorce proceedings involving adultery or infidelity by the child’s
mother where paternity of one or more children of the marriage could be
at issue. Under the Texas Family Code, while there is no time limitation
for a suit to adjudicate parentage if the child has no presumed, alleged,
or adjudicated father; yet a suit adjudicate parentage of a child with
a presumed father must be brought within four years of the anniversary
of the child’s birth. Tex. Fam. Code §160.607(a). In order
to overcome this four year limitation, a presumed father must not have
lived with the mother or engaged in sexual intercourse with her during
the probable time of conception. Tex. Fam. Code §160.607(b)(1). The
presumed father also must never have represented to others that the child
was his own. Tex. Fam. Code §160.607(b)(2).
When two people live together as husband and wife, with a child born during
their marriage, the requirements of Texas Family Code 160.607(b) are very
often impossible to overcome. So, if there is a question as to the paternity
of a child, genetic testing should be requested as early as possible and
the suit to adjudicate parentage of the child should be brought before
the child’s fourth birthday. This is important to ensure stability
for the child involved. Here, as is the case with the rest of the Texas
Family Code, the best interest of the child is the priority.