Staff Reporter (2022-2023)
It would be a father’s nightmare to discover that the child he has loved and raised for years is not biologically his own. Unfortunately, this happens more often than one would like to imagine. According to a recent study conducted by the American Association of Blood Banks, three out of every ten men DNA tested were not their respective child’s biological father.¹ This revelation inflicts emotional pain and results in men shouldering the responsibility of child support if they acknowledge paternity under a mistaken belief that they were the child’s biological father.
What Is Mistaken Paternity?
Mistaken paternity describes a court’s determination that a man is the biological father of a child if a man signed an acknowledgment of paternity (usually at birth or during a divorce proceeding), but it is later discovered that the man is not the father of the child.³ However, the man cannot know this at the time of the court’s determination or his acknowledgment of paternity.⁴
In 2011, the “Texas Legislature amended the Texas Family Code to allow courts to terminate the parent-child relationship and the duty to pay child support in circumstances of mistaken paternity.”⁵ The amendment provides a mechanism for men to disestablish paternity. A man who learns or believes he is not the child’s biological father may file a petition to legally terminate the parent-child relationship.⁶
A successful petition under mistaken paternity requires:
1. The petitioner to assert facts supporting the assertion that he is not the child's biological father;
2. That he signed the acknowledgment of paternity or failed to contest parentage in the past because of the mistaken belief⁷; and
3. The mistaken belief must be based on misrepresentations that led him to believe he was the father.⁸
It is important to note that a man must file his petition for mistaken paternity no later than two years from the date he learned he is not the child’s biological father.⁹
Once a petitioner successfully meets the requirements for mistaken paternity, it allows the court to order the father and the child to submit to legal DNA testing that complies with the Texas Family Code.¹⁰ This is not without cost to the man. In addition to filing fees, the man is usually responsible for paying the legal DNA test costs unless the court orders the mother to help pay the cost. A legal DNA test is $525.00.¹¹
Often, mistaken paternity goes undetected for several years, resulting in a man's legal duty to pay child support.¹² Although the Texas Family Code provides a remedy for men who are the subject of mistaken paternity cases, it only ends a man's obligation to pay future support.¹³ It does not eliminate the obligation to pay child support not paid up to the date of the final order terminating the parent-child relationship or interest accrued.¹⁴
Termination of the Parent-Child Relationship
Termination of the parent-child relationship has serious ramifications; it is considered the death penalty in family law because it is the last resort a parent should take. When a court terminates the parent-child relationship, the parent loses every right to the child.¹⁵ This can detrimentally impact a child’s life and have long-lasting consequences.¹⁶
It may seem reasonable for a man to ask the court to terminate the parent-child relationship to end child support obligations for a non-biological child, but is it all about the money? What if a man does not learn about the mistaken paternity until the child is 9 or 10 years old, and the child becomes emotionally attached to the person they believed was their father since birth?
The law attempts to resolve this issue by adding a provision in the Texas Family Code establishing that the court may order visitation or a right to see the child only if the court determines that denial would significantly impair the child's physical health or emotional well-being.¹⁷ A man unable to meet this high legal standard will be permanently separated from the child unless the mother allows him to see the child after termination.
Why It Is Better To Know Now Than Later
Although mistaken paternity is an option for men, the court will base its decision on the “child’s best interest.”¹⁸ The law is a merciful instrument, and its provisions ensure that children who develop a strong bond with the men whom they believe to be their fathers do not suffer. As such, a court’s primary consideration in resolving the outcome of a mistaken paternity case is always determining what is in the “best interest of the child.”¹⁹
Therefore, it is critical to understand that if a court determines that termination of the parent-child relationship is not in the best interest of the child, the court will not grant a man’s petition, and he will continue to be responsible for child support payments.²⁰ Although DNA testing is uncomfortable for everyone involved, it may prevent future heartache.
¹ Paternity Fraud Laws Statistics and Child Support, IDTO Immigration DNA Testing & Paternity Testing Services, https://immigrationdnatestonline.com/paternity-fraud-2/ (last visited Sept. 5, 2022). ² Tex. Fam. Code Ann. § 160.305(a). ³ Legal Remedy for Mistaken Paternity Cases Under the Texas Family Code, The Law Offices of Allen R. Manka, P.C., https://www.allanmanka.com/legal-remedy-for-mistaken-paternity-cases-under-the-texas-family.html (last visited Sept. 5, 2022). ⁴ Legal Remedy for Mistaken Paternity Cases Under the Texas Family Code, The Law Offices of Allen R. Manka, P.C., https://www.allanmanka.com/legal-remedy-for-mistaken-paternity-cases-under-the-texas-family.html (last visited Sept. 5, 2022). ⁵ Ken Paxton, Mistaken Paternity, Ken Paxton Attorney General of Texas, https://www.texasattorneygeneral.gov/child-support/paternity/mistaken-paternity (last visited Sept. 5, 2022). ⁶ Tex. Fam. Code Ann. § 161.005(c) ⁷ Tex. Fam. Code Ann. § 161.005(c)(1)(2). ⁸ Id. ⁹ Id. at (e). ¹⁰ Id. ¹¹ Paternity Testing, Labcorp, https://www.labcorp.com/provider-services/other-services/paternity-testing (last visited Sept. 5, 2022). ¹² Tex. Fam. Code Ann. § 160.305(a). ¹³ Id. at §161.005(i). ¹⁴ Ken Paxton, Mistaken Paternity, Ken Paxton Attorney General of Texas, https://www.texasattorneygeneral.gov/child-support/paternity/mistaken-paternity (last visited Sept. 5, 2022). ¹⁵ Id. ¹⁶ Legal Remedy for Mistaken Paternity Cases Under the Texas Family Code, The Law Offices of Allen R. Manka, P.C., https://www.allanmanka.com/legal-remedy-for-mistaken-paternity-cases-under-the-texas-family.html(last visited Sept. 5, 2022). ¹⁷ Tex. Fam. Code Ann. § 160.005(j)(1)(h). ¹⁸ Id. at §153.002. ¹⁹ Id. ²⁰ Id.