Paternity Actions in Texas
A Suit to Establish Paternity begins the same as any other Suit Affecting the Parent Child Relationship, with a petition asking the Court to issue child custody and support orders. The significant difference is that in a Suit to Establish Paternity, one party is asking the Court to order the parties to submit to DNA. Whether it is Mom seeking to give her child a father, or a father seeking to get some visitation and access to his child, someone has to file the petition and assert the identity of the father. The other parent (or assumed parent) must be served. If the suit is brought by Mom, she has an affirmative duty to name and serve any and all “putative” fathers. Practically speaking, Mom generally knows who the father is and usually names only the “most likely suspect” but there are occasions when a case has both a putative father and a declared father. A putative father is one assumed in law; a declared father is a man with court ordered relationship with the child (generally acquired via divorce decree) who has never challenged or had DNA performed.
After DNA test establish the putative father is in fact the father, he will be declared the father and then obtains all the rights, duties, and obligations of a parent by law. He can then seek custody, visitation, or other access to the child, form a relationship, and pay his share of the cost of raising the child.
Service of process can be an issue all its own. Generally speaking a lawsuit of this nature involves two parties, but serving a third party may be difficult. Then there are issues with the declared father, if any. He may not be the father (assuming DNA has been secured) but that does not mean he is not a Daddy with a relationship with the child that he enjoys and does not want to give up. Even if he is willing to give up the relationship, should he ask for and is he entitled to reimbursement for child support paid? With only a putative father, Mom can ask for retroactive child support and medical expenses. With a declared father, it could be argued that mom has been getting child support from him and that she has been committing fraud against both men in the process. Allowing her to recover past child support from the actual father after she collected child support from a declared father for years is akin to letting her profit (double profit actually) from her fraud. However, the declared father is an innocent party – or is he? The law says that once an order has been issued declaring parentage, res judicata (the thing has been decided) prevents future challenges of the issue – though the Texas Legislature resolved this issue as to parentage with the Fraud on a Father statute passed into law in 2011.
If ex-H was never adjudicated the father then this man’s legal status is much more simple to establish. File the petition, serve the girlfriend, ask for a declaration of paternity and get a court ordered relationship with the child. Of course the relationship comes with rights and duties (obligations) including child support.
Frequently Asked Questions
HOW CAN I BE LISTED AS THE FATHER ON MY BABY?S BIRTH CERTIFICATE? Under Texas law, if you were ...