Before 2011 a divorced father who found out that he was not the biological father of his legal children had no remedy according to the Texas Supreme Court. He had to continue to pay child support even after genetic testing showed he was not the biological father of children born during his marriage.
In 2011 the Texas Legislature changed the law, and began to provide relief for persons who had signed acknowledgements of paternity, or who were adjudicated the legal father of a child, or for persons who were legally fathers of a child or children born during a marriage, who had reason to believe, or who found out after the fact, that they were not the biological father of the child or children. This concept is called “mistaken paternity.”
Basically, a father who has reason to believe that he is not the biological father of a child or children, has two years from the date he learns or comes upon information leading him to believe that he is not the biological father of a child or children, whether the children were born during marriage, whether the man signed an acknowledgement of paternity based on the representation made to him that he was the father, or whether the man failed to contest a suit for paternity based on the mistaken belief that he was the father (most often these are suits brought by the Texas Attorney General’s Office Child Support Division) and was legally adjudicated the father of a child or children.
If you have reason to believe you are not the father of your legal child or children, or if you have already done paternity testing confirming that you are not the biological father, you have two years from the date of learning of the relevant information to file a lawsuit to terminate your parental rights.
Once you have filed suit the court is required to have a pre-trial hearing to evaluate your claim that you are not the biological father. If the court finds that you have made a “meritorious prima facie” case that you are not the biological father, the court is required to order genetic testing. In our experience, because there is usually already a child support order involving the Attorney General’s Office in our mistaken paternity cases, the Attorney General’s Office is directed by the court to handle the genetic testing. Even if you already have done the genetic testing prior to the filing of the case, and have submitted the evidence to the court, the judge is required to order another test. Once the test comes back negative, the court is required to terminate your parental rights as well as your duty to pay child support. So far, our office has not had any cases where the test came back establishing that our client was in fact the father, but the Texas Family Code in that situation would require the court to deny the petition for termination of paternal rights.
Unfortunately, as the law now stands, once your paternal rights are terminated due to mistaken paternity, you cannot make a claim for reimbursement of past child support paid.
The relevant parts of the Texas Family Code pertaining to claims regarding mistaken paternity are as follow:
TEXAS FAMILY CODE SECTIONS 161.005 (c) through 161.005(h)
(c) Subject to Subsection (d), a man may file a suit for termination of the parent-child relationship between the man and a child if, without obtaining genetic testing, the man signed an acknowledgment of paternity of the child in accordance with Subchapter D, Chapter 160, or was adjudicated to be the father of the child in a previous proceeding under this title in which genetic testing did not occur. The petition must be verified and must allege facts showing that the petitioner:
- is not the child's genetic father; and
- signed the acknowledgment of paternity or failed to contest parentage in the previous proceeding because of the mistaken belief, at the time the acknowledgment was signed or on the date the court order in the previous proceeding was rendered, that he was the child's genetic father based on misrepresentations that led him to that conclusion.
(d) A man may not file a petition under Subsection (c) if:
- the man is the child's adoptive father;
- the child was conceived by assisted reproduction and the man consented to assisted reproduction by his wife under Subchapter H, Chapter 160; or
- the man is the intended father of the child under a gestational agreement validated by a court under Subchapter I, Chapter 160.
(e) A petition under Subsection (c) must be filed not later than the second anniversary of the date on which the petitioner becomes aware of the facts alleged in the petition indicating that the petitioner is not the child's genetic father.
(f) In a proceeding initiated under Subsection (c), the court shall hold a pretrial hearing to determine whether the petitioner has established a meritorious prima facie case for termination of the parent-child relationship. If a meritorious prima facie claim is established, the court shall order the petitioner and the child to submit to genetic testing under Subchapter F, Chapter 160.
(g) If the results of genetic testing ordered under Subsection (f) identify the petitioner as the child's genetic father under the standards prescribed by Section 160.505 and the results of any further testing requested by the petitioner and ordered by the court under Subchapter F, Chapter 160, do not exclude the petitioner as the child's genetic father, the court shall deny the petitioner's request for termination of the parent-child relationship.
(h) If the results of genetic testing ordered under Subsection (f) exclude the petitioner as the child's genetic father, the court shall render an order terminating the parent-child relationship.