Whether it is a divorce action or litigation involving unmarried people, paternity can be a complicated and contentious issue. Telling the mother of the child that you are not the daddy is akin to tossing a live grenade into an ammo bunker; nothing constructive will follow. But before we deal with this fascinating subject of paternity, let’s define some legalese.
Of course, as we have seen in the past, the bible for a Family Law practitioner is the Texas Family Code, better known as the TFC. Since we don’t necessarily establish maternity, the TFC focuses on paternity. Consequently, there are three defined “daddies”. There is the presumed father, who is the husband in a marriage where there are children. This is in line with public policy not to bastardize children. This definition also makes sense….on the surface.
There is the alleged father, and he is the man who is “accused” of being the father of the child under consideration. He could be the man with whom a wife may be having an affair. Or he could the lover, one night stand or the sperm donor of an unmarried woman.
Finally, there is the adjudicated or legal father. After a legal proceeding, the presumed/alleged father is declared the winner of the father lottery. Are you getting confused by all the players?
But how is this done in this time of science? How does the law interface with science to declare the winner? The wonderful world of DNA testing, that’s how. The TFC states that if the result of the DNA test indicates a probability of at least 99%, with a fudge factor of .5, bingo!!! The alleged father is the winner!!! In my experience, most of the probability results have been between the 99.90 % to 99.99 % range. I have tried a case that had a test result of 99.83 % probability which the Judge took to meet the plus or minus .5 variation. However, if the DNA test shows a 0.00 % probability of paternity, the alleged father is not the father of the child.
So, if there is a question about the paternity of the child, there may be a way to eliminate the doubt. That could be very important in a divorce action for purposes establishing the ground of adultery. It can obviously reduce post divorce financial obligations. For a man accused of siring a child with a woman to whom he is not married, a DNA test that excludes him as the father will save him untold financial stress.
Now that we defined some crucial terms, let’s put them into real world context. Where there is a marriage, the TFC presumes that the husband of the wife is the father (presumed father) of any child born during the marriage. As I said, this is common sense. But if there is a reason to believe otherwise during a divorce proceeding, a husband may want a DNA test to make sure. But, the TFC requires a married man to make this request within four years of the birth of the child. If the child is more than four years of age, husband is the dad by law. That means child support, heath insurance coverage, and the opportunity to be the typical “Disneyland Dad.”
When the conception of a child occurs where the parties aren’t married, who’s the father? Since there is no presumed father, there is no legal father. Without a legal status, Daddy here has no rights OR support responsibilities. Momma gets no child support. This may lead to a request for the State to provide financial support in the form of TANF. The State doesn’t like that, and the Office of the Attorney General gets involved. But the involvement of the Office of the Attorney General into your personal life is the topic of another article and I will publish that before the end of this month.
Paternity is a critical issue in family law cases. It can tear a marriage apart. Even where there is no marriage; paternity is part and parcel of the drama and emotion that visits the family law courthouse every day.
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