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Fathers Rights and Legal Presumptions of Fatherhood in Texas

The presumption of fatherhood in Texas is strong, and positively impacts a father’s claims upon his children. Without the presumption of fatherhood, a father would face significant barriers in asserting his rights. The presumption of fatherhood supports access, rights, and duties, allowing the father to assert his right to help raise his child as he deems fit.

The presumption of fatherhood is determined in the Texas Family Code 160.204 and states that a man is presumed to be the father of a child regardless of genetic testing in the following circumstances:

  1. If the man is marriedto the mother and the child is born during the marriage;
  2. If the child is born before the 301st day after the day the marriageis terminated by death, annulment, invalidity, or divorce;
  3. If the man is marriedto the mother before the  birth of the child in apparent compliance with the law;
  4. If the man marriedthe mother after the birth of the child in apparent compliance with the law and voluntarily asserted his paternity of the child by:
    1. The assertion in a record filed with the vital statistics unit
    2. The man is voluntarily named as the Child’s father on the child’s birth certificate or
    3. He promised in a record to support the child as his own occurrence
  1. The man during the first two years of the child’s life resided in the household in which the child lived and the man represented to others, (held out) that the child was his own.

These five factual series support the presumption of a father without filing a Suit Affecting Parent Child Relationship.

Only the 5th element pertains to men that are not married to the mother of the child. A man that is not married most likely will not legally be presumed the father even if the child is the man’s genetic son or daughter. This is a shock to many men if the relationship between the mother deteriorates and the mother decides to leave town. The father of the child will have no enforceable rights to his genetic son or daughter absent the filing a suit to establish the paternity of the father.

If a father is not married to the mother of his child, then the only option to the father is that he must continuously live with the mother and his child for the first 2 years of the child’s life and hold out to the public that the child is his own. This usually does not happen because of the stress involved in the beginning stages of raising a child and other factors. The father may have an active role in his child’s life but if he does not live with his child continuously for the first 2 years of his child’s life, then the mother may take exclusive possession of his child and move anywhere in the U.S. and the father will have no way to stop her unless he petitions the court for emergency relief, which will likely result in genetic testing.

If you have fathered a child out of wedlock and have not continuously lived with your child for the first 2 years of the child’s life, then it is wise to secure a genetic test and file suit to adjudicate yourself as the father of your child so you may receive the rights of a parent as a matter of law. It is prudent to contact an experienced family law attorney for the process because the innate right to see, guide, and teach your child is too important to forfeit. A man never knows what the future holds in a relationship, and if you have a child out of wedlock it is important to protect your right to be a part of that child’s life. To do this seek an experienced attorney to ensure your right is not infringed or sabotaged.

Paternity in Texas – Is a Biological Father a Legal Father?

A baby born to unwed parents does not have a legal father under Texas Law.  In order to exercise your rights as a father, including visitation and possession, a man must be a child’s legal father.  A common misconception is that if your name is on the birth certificate you are a legal father.  If you are not married to the mother, simply putting your name on the birth certificate of your child is not enough to make you the “legal” father and you cannot enforce your rights to the child.

The process to become a legal father is a simple one. If the biological father and the mother agree, they can both sign an “Acknowledgement of Paternity” which is filed with the Bureau of Vital Statistics.  Once paternity has been established, your name will be placed on the birth certificate, and the Court may order you to pay child support and grant you visitation or possession rights with your child.

TEXAS FAMILY LAW §160.301.   ACKNOWLEDGEMENT OF PATERNITY

The mother of a child and a man claiming to be the biological father of the child may sign an acknowledgement of paternity with the intent to establish the man’s paternity.

TEXAS FAMILY LAW §160.302.   EXECUTION OF ACKNOWLEDGEMENT OF PATERNITY

An acknowledgement of paternity must:

  1. Be in a record;
  2. Be signed, or otherwise authenticated, under penalty of perjury by the mother and the man seeking to establish paternity;
  3. State that the child whose paternity is being acknowledged:
    1. Does not have a presumed father or has a presumed father whose full name is stated;
    2. Does not have another acknowledged or adjudicated father.
  1. State whether there has been genetic testing and, if so, that the acknowledging man’s claim of paternity is consistent with the results of the testing;
  2. State that the signatories understand that the acknowledgement is the equivalent of a judicial adjudication of the paternity of the child and that a challenge to the acknowledgement is permitted only under limited circumstances.

An acknowledgement of paternity is void if it:

  1. States that another man is a presumed father of the child, unless a denial of paternity signed or otherwise authenticated by the presumed father is filed with the bureau of vital statistics;
  2. States that another man is an acknowledged or adjudicated father of the child; or
  3. Falsely denies the existence of a presumed, acknowledged, or adjudicated father of the child.
  4. A presumed father may sign or otherwise authenticate an acknowledgement of paternity.