Presumed Fathers: Time is of the Essence (When Paternity is at Issue in Divorce)

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.

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