Who Is a Father?
This may seem a silly question, but it isn’t. Understanding how Texas Family Law defines “paternity” is extremely important when determining who has standing (the legal right) to file a suit to adjudicate parentage (a lawsuit to determine who is the child’s father). Most commonly, when the child results from sex between unmarried people, the father of the child is determined either by a lawsuit adjudicating the paternity of the child or by the father’s acknowledgment of paternity through the Texas Paternity Registry.
You Think You Might Be a Father
If you are not married to the mother (or mother-to-be) of the child, there are several things you should be aware of that should help you to protect your paternal rights under the law.
The Paternity Registry
Have you heard of the Texas Paternity Registry? If not, you have a lot of company. However, now that you have heard of it, what is it? The Texas Paternity Registry a place for men to file a Notice of Intent to Claim Paternity to register a sexual encounter or the birth of a child so that they are “on file” as a potential father in the event the child is ever put up for adoption, seized by Child Protective Services (CPS), or some other event occurs that might affect your legal paternal rights. Without filing a Notice with the Texas Paternity Registry, the parental rights of a man who is not legally presumed to be the father (explained further below) may be terminated without that man being given any notice. Tex. Fam. Code § 160.404.
When do you have to file your Notice of Intent to Claim Paternity? You must file prior to the birth of the child or, if the child has already been born, within 31 days of the child’s birth. Tex. Fam. Code § 160.402.
Who can file? Anyone who thinks he may be the father and wants to protect his rights may file, although presumed fathers need not file with the registry.
The Difference Between a Presumed Father and an Alleged Father
An important aspect of paternity and the paternal rights of a father is the distinction between a presumed father and an alleged father. Under the Texas Family Code, a man is generally presumed to be the father of a child if: (1) he is married to the mother and the child is born during the marriage; (2) he is married to the mother and the child is born before the 301st day after the marriage is terminated; or (3) he continuously resided in the household with the child during the first two years of the child’s life and represented to others the child was his own. Tex. Fam. Code § 160.204 (please review the statute to see several other scenarios in which a legal presumption of paternity arises).
Why is the distinction important? First, a presumed father is legally recognized as the father until that status is rebutted (shown not to be the case) or confirmed in a judicial proceeding (lawsuit). Tex. Fam. Code § 160.102(13). This means that a presumed father has the burden of showing he is not the dad since the law presumes that he is. A presumed father is entitled to notification of a lawsuit that may affect his parental rights.
What if you aren’t a presumed father? A man who is not a presumed father is an alleged father. The significance here is that paternity must be legally established by an acknowledgement of paternity or a lawsuit proving that the alleged father is the dad. Further, an alleged father may not be entitled to any notice of a lawsuit affecting his parental rights if he has not protected his rights by filing in the paternity registry. Alleged fathers are men who had a child outside of marriage.
Why Does This Matter?
Aside from whether a man is entitled to notice of a lawsuit affecting his parental rights, there are other important distinctions. One is the obligation to pay child support. A presumed dad must pay child support unless he can prove he is not the father, while an alleged father is not required to pay unless it is proven in a court of law that he is the father.
A weightier reason this distinction is important, and a reason that is often overlooked, is the time limitation on a man’s ability to establish his paternity. If a child has no presumed, acknowledged, or adjudicated (legally determined) father, a man can file a lawsuit to establish his paternity almost any time prior to the child becoming an adult. Tex. Fam. Code § 160.606. A man who is seeking to establish his paternity where there is a presumed father, however, must do so prior to the child’s fourth birthday unless the man is allowed to proceed based on a narrow exception. Tex. Fam. Code § 160.607. This same time limit also applies in the case of a child having an acknowledged or adjudicated father (a father that has been legally determined in a legal proceeding). Tex. Fam. Code § 160.609.
The significance of this distinction, therefore, is that if you think you are the father and there is another man who is the presumed, acknowledged, or adjudicated father, you would have to bring your lawsuit prior to the child’s fourth birthday, or you could be prevented from doing so at a later time, effectively cutting off your paternal rights.