Mistaken fathers have one year to challenge paternity

E. Stephanie Hebert,
III Corps and Fort Hood Legal Assistance Attorney:

Men can legally challenge the paternity on the grounds of fraud, mistake or misrepresentation following the 2011 amendment to Chapter 161 of the Texas Family Code.

The new law enables a man who has previously been named as the biological father of a child in a court order or has signed an acknowledgment of paternity to challenge his paternity by filing a petition in court to terminate his parental rights after later discovering the fraud.

In order to successfully challenge paternity under the new law, a man must file a verified petition, after which the court will hold a pre-trial hearing to determine whether the man has a justifiable reason for not previously questioning his paternity. The court then will order genetic testing.

If the DNA test excludes the man as the child’s biological parent, the court must terminate legal relationship between the child and the previously adjudicated father and terminate any existing order to pay child support. However, the court may order continued periods of visitation between the child and the man whose rights are terminated.

Beginning Sept. 1, a petition to terminate a man’s parental rights utilizing this new law must be filed within one year of learning facts that negate paternity. However, until Sept. 1, a petition may be filed regardless of the date the man became aware of facts supporting his allegation of paternity fraud.

If you have grounds to challenge your paternity, regardless of when you learned you are not the child’s biological father, you should file a petition in court immediately. Otherwise, you will be limited to the one-year limitations period.

While the Servicemembers Civil Relief Act might be used to suspend the one-year limitation period, Soldiers should not rely upon the SCRA in this situation because the lawsuit, if successful, will eliminate future child support only. Previously ordered child support, child support arrearages and child support interest is still enforceable by contempt (jail time). Furthermore, a man will not be able to recover any child support he paid prior to the date the court signs the order terminating his rights.

The paternity fraud law was written to address only those situations involving fraud and not situations in which a man knew he was not the father, but consented anyway.

If you knew that you were not the biological father of the child, but consented to being named as the child’s father in a court order or AOP, you cannot challenge your paternity because no fraud is involved. For that same reason, in cases involving adoption, assisted reproduction or gestational agreements, a man cannot assert the paternity fraud statute.

If you would like more information about Texas paternity fraud law, or if you believe you have been the victim of paternity fraud, schedule an appointment with an attorney at the Fort Bliss Legal Assistance Office by calling 568-7141 or 744-3820.

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