This paper attempts to address parentage in a very narrow area.
For the most part it presupposes that the issue of parentage has arisen strictly in the context of a divorce.
Several issues are here addressed.
Grateful acknowledgment is here rendered to Victor Negron, Jr. (with H. Zoflacht) for their paper “Parentage” presented in the 1995 ADVANCED FAMILY LAW DRAFTING; to Ellen Yarell and Leslie A. Grant for their “Paternity Termination and Adoption Answers to Questions You Always Ask” presented at the 1997 ADVANCED FAMILY LAW COURSE, to Professor Jack Sampson for his Section Newsletter, and to the Council of the Family Law Section of the State Bar of Texas who compiled the Texas Family Law Practice Manual, from each of which materials the author has borrowed and quoted liberally.
I. Standing and Timing
A. How and when can either husband or wife raise an issue regarding parentage in a divorce case?
1) If either party asserts that husband is father of a child born during marriage, or attempted marriage, or within 300 days of the date after a marriage or attempted marriage ends by death, annulment, or divorce, or husband acknowledges he is the father of a child born prior to marriage or attempted marriage, he is the presumed father. §151.002 Texas Family Code (hereinafter TFC). Absent “clear and convincing” proof to the contrary, the presumption carries. Attorney General of Texas v. Duncan, 929 S.W.2d 567 (Tex.App.—Ft. Worth 1996, no writ).
This is traditionally the most common factual context in which parentage is determined. The issue is raised by pleading that the child is a child of the marriage or born during the periods set forth in the Texas Family Code. SEE EXAMPLE AT APPENDIX A. Husband father is aided by the presumption set forth in §151.002(a) TFC. The presumption is rebuttable. In Re S.C.V., 750 S.W.2d 603 (Tex.1988). §160.101 sets forth persons with standing to contest the presumption:
(a) biological mother
(b) person within second degree of consanguinity of a deceased mother
(c) any man who is a presumed father i.e. father/husband; man filing an acknowledgment of paternity; man who has consented to be named on birth certificate; or man under voluntary or court ordered obligation to support child §151.002 TFC.
(d) man alleging himself to be biological father
(e) governmental entity or authorized agency.
In a divorce setting, only (a) or (c) apply absent an intervention. In Re J.W.T., 872 S.W.2d 189 (Tex.1994). And even if father/husband’s presumed paternity is rebutted by clear and convincing evidence (i.e. blood tests) he is not precluded from seeking conservatorship so long as he otherwise meets a standing prerequisite set out in §102.003 TFC, for example, by proof the child has resided with him for at least 6 months ending within 90 days of filing. T.W.E. v. K.M.E., 828 S.W.2d 806 (Ct.App.—San Antonio, 1992, no writ). Also bear in mind that if the biological father as intervenor seeks to rebut husband’s presumption of paternity, he must do so in a timely manner. (discussed, infra, at 3(a)(2)).
2) If either party asserts husband is not the father of a child, the general rule is that the issue may be addressed by the trial court in the divorce.
This issue must be raised by an express statement by the husband specifically denying paternity in his pleadings. §160.101(b). SEE EXAMPLE AT APPENDIX B. Once the issue is raised, the court must conduct pretrial proceedings including the ordering of scientifically accepted paternity testing. §160.101(c). Failure to raise issue forever bars the parties and those “in privity” from relitigating the issue of paternity. Espree v. Guillory, 753 S.W.2d 722 (Tex.App.—Houston [1st Dist.] 1988, no writ); see also Dreyer v. Greene, 871 S.W.2d 697 (Tex.1993) (finding in divorce decree that husband and wife were “parents” of children and that children were “of the marriage” constituted adjudication that husband was biological father of children, which barred subsequent paternity suit by wife as next friend of children).
3) If an interloper to the marriage raises the issue by intervention.
a. Who can seek redress by intervention in the divorce?
As previously noted, the TFC §160.101 sets out those persons with a right to contest paternity. SEE EXAMPLE AT APPENDIX C. Arguably, the following persons alone have the ability to challenge a presumption of fatherhood under the statute in a divorce action by way of intervening:
(1) a man who is himself a presumed father
(2) a man alleging he is the biological father (subject to limitations set out, infra)
(3) a governmental entity or authorized agency
Arguably, under §160.003 this list should include:
(4) a child, by and through an attorney ad litem, guardian ad litem, or person in loco parentis , if the court finds the interests of the child will not be adequately represented by the parties to the suit, or are clearly adverse to the party.
Case law has interpreted each of these intervenor’s right:
(1) a man who is himself a presumed father
A presumed father named on a birth certificate with his consent to a woman married at the time of the birth is not bound by the doctrine of res judicata or collateral estoppel if he is not made a party to the original divorce, and cannot be shown to have knowledge of the suit or privity with a party. Espiricueta v. Vargas, 820 S.W.2d 17 (Tex.App.—Austin 1991, writ denied); see also Jack v. Jack, 796 S.W.2d 543 (Tex.App.—Dallas 1990, no writ). The effect of the presumption is to give equal footing to both contestants and submit the parties to testing. §160.110(e) TFC.
(2) a man alleging he is the biological father
Once he intervenes in the divorce action, the interloper is ordinarily confronted with the presumption of parentage as to husband set forth in §151.002 TFC. However, the right of a biological father to contest the presumption has been recognized to exist in Texas by the Supreme Court case of In Re J.W.T., 872 S.W.2d 189 (Tex.1994). Be aware that the right requires proof that the intervenor “acted expeditiously.” In J.W.T. the biological father, prior to the child’s birth filed an action to declare his paternity of a child born during the marriage of a mother and her husband. He acknowledges responsibility for child support and requested visitation.
This issue was addressed by the Texas Supreme Court only after a distinct difference of opinions between the Beaumont Court of Appeals and the Dallas Court of Appeals. Initially, the Beaumont Court of Appeals agreed with the trial court in Gibson v. J.W.T., 815 S.W.2d 863 (Tex.App.—Beaumont, 1991, writ) by affirming the trial court’s ruling. In that ruling, involving Texas Family Code former §11.03(a)(7), the Beaumont court agreed with limiting the standing for the filing of a paternity suit to children who have no presumed father, thereby effectively barring the biological father seeking to establish his parent-child relationship when a child is born during a woman’s marriage to another man. However, contrary to the Beaumont court, the Dallas Court of Appeals decided that in the interests of the state in protecting the “sanctity of the marital relationship” and family unit from outside influences outweigh the constitutionally protected right of a parent to seek and establish parent-child relationship. In the Interest of J.W.T., 872 S.W.2d 189 (Tex.1994).
At first, the Texas Supreme Court stated that the statute at issue was unconstitutional. This, of course, opened the door for any man to allege that he was the biological father so that a presumed father’s position could always be challenged. The Court, however, withdrew this opinion, and subsequently decided that a biological father’s standing to assert parental rights is constitutionally mandated where the rights are asserted near the time of the child’s birth, if the father both (1) acknowledges responsibility for child support or other care and maintenance; and (2) makes serious and continuous efforts to establish a relationship with the child.
In direct response to J.W.T. the Texas legislature enacted §160.110(f) TFC which reads:
“The Court shall dismiss a suit contesting a presumption of paternity filed by a man who is not a presumed father, but who alleges himself to be the biological father of a child, if:
(1) the suit is filed after the second anniversary of the later of:
(A) the date of birth of the child; or
(B) the time the presumption of paternity came into existence after the child was born; and
(2) the presumed father:
(A) has resided in the same household as the child in a father-child relationship or has established a father-child relationship with the child through his other actions; and
(B) requests an order designating him as the father of the child.
SEE EXAMPLE AT APPENDIX D.
Therefore, if the interloper timely files his intervention, or if the presumed father has not resided with or established a “father-child” relationship, or does not request a finding of fatherhood, the intervenor can prevail.
(3) a child, by and through an attorney ad litem, guardian ad litem, or person in loco parentis. SEE EXAMPLE AT APPENDIX E.
§160.003 states that a child is not a necessary party and creates a presumption that the parent acts on behalf of the child. The presumption is rebuttable. L.P.D. v. R.C., 959 S.W.2d 728 (Tex.App.—Austin, 1998, no writ) is a case in which the appellate court determined that an attorney ad litem was required to protect the interest of a child and proceed for the child in a paternity action. The case involved a Texas suit to establish the paternity of a presumed father found in another state to be the biological father of a child by default. In reviewing the trial court determination that collateral estoppel prevented the issue in a “questionable” paternity determination in Pennsylvania from being relitigated in Texas, the court stated:
“When there is no person before the court who has had care and custody of the child, or understands the child’s interests through another relationship, or even professes to have met the child, we hold the presumption that the party brining suit will adequately represent the child’s interest has been rebutted as a matter of law.” The trial court abused its discretion in not appointing an attorney ad litem for the child.” id at 731.
See also R.M.H. by Gabert v. Messick, 828 S.W.2d 226 (Tex.App.—Forth Worth, 1992, no writ).
4) How and when can a divorcing party implead an interloper to be named as biological father?
The ability of a party to join an individual asserted to be the father of a child is dependent upon Rules 38, 39 and 40 of the Texas Rules of Civil Procedure (T.R.C.P.). Rule 28 T.R.C.P. determines when a party may bring in a third party. In pertinent part it reads:
“(a) When defendant may bring in third party. At any time after commencement of the action a defending party, as a third-party plaintiff, may cause a citation and petition to be served upon a person not a party to the action who is or may be liable to him or to the plaintiff for all or part of the plaintiff’s claim against him. The third-party plaintiff need not obtain leave to make the service if he files the thirtd-party petition not later than thirty (30) days after he serves his original answer. Otherwise, he must obtain leave on motion upon notice to all parties to the action.
“(b) When plaintiff may bring in third party. When a counterclaim is asserted against a plaintiff, he may cause a third party to be brought in under circumstances which under this rule would entitle a defendant to do so.”
Rule 39 T.R.C.P. reads in pertinent part:
“Joinder of Persons Need for Judge Adjudication
(a) Persons to be Joined if Feasible. A person who is subject to service of process shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims in interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall order that he be made a party. If he should joint as a plaintiff but refuses to do so, he may be made a defendant, or, in a proper case, an involuntary plaintiff.
Rule 40 T.R.C.P. reads in pertinent part:
“Permissive Joinder. All persons may join in one action as plaintiffs if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all of them will arise in the action. All persons may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all of them will arise in the action. A plaintiff or defendant need not be interested in obtaining or defending against all the relief demanded. Judgment may be given for one or more of the plaintiffs according to their respective rights to relief, and against one or more defendants according to their respective liabilities.
As previously noted, §160.101 TFC and §160.110(f) and (g) TFC provides the list of those persons authorized to “rope in” the interloper as biological father of a child. Clearly both parties to the divorce meet the standing to contest set forth in this section. See Hirczy v. Hirczy, 838 S.W.2d 783 (Tex.App.—Corpus Christi, 1992, writ denied); T.W.E. v. K.M.E., 828 S.W.2d 806 (Tex.App.—San Antonio, 1992, no writ).
5) When may a party or intervenor be precluded from raising a parentage issue?
Although Texas long ago abolished Lord Mansfield’s rule, Davis v. Davis, 521 S.W.2d 603 (Tex.1975), a divorcing party or intervenor may be precluded from raising parentage issues either by the doctrine of res judicata, collateral estoppel, untimely assertion of interest, death of the presumed father, limitations, or failure to submit to blood tests. Each must be affirmatively plead pursuant to Rule 94, T.R.C.P.
a. Res judicata
If a party to the divorce was also a party to a prior action which adjudicated paternity, or found a child to be “of the marriage” the party is precluded from asserting a different person than the person previously found to be the father in the prior action is actually the biological father in a subsequent suit. §160.007 TFC; Dreyer v. Greene, 871 S.W.2d 697 (Tex.1993); see also State ex rel Latty v. Owen, 907 S.W.2d 484 (Tex.1995) where the court found failure to properly perfect an appeal from trial court binds father with Master’s finding of paternity; but see Ridge v. Ridge, 723 S.W.2d 645 (Tex.App—San Antonio 1989, writ denied) holding that father’s finding of no paternity through fraud will be overturned on appeal by bill of review. SEE EXAMPLE AT APPENDIX F.
b. Collateral estoppel
Closely akin to the doctrine of res judicata is the related bar of collateral estoppel. Although res judicata does not operate to affect strangers to judgment, Jack v. Jack, 796 S.W.2d 43 (Tex.App.—Dallas 1990, no writ), this doctrine precludes retrial of a prior finding by those in privity with a party to the present action. Collateral estoppel has been held to prevent an interloper from asserting paternity when he failed to appeal a severance of his paternity action after which the trial court found the child to be a child of the marriage in the original divorce action from which his intervention was severed. Espree v. Guillroy, 753 S.W.2d 722 (Tex.App.—Houston [1st Dist] 1988, no writ). (Note: the reasoning of Espree may be questionable today in light of J.W.T., supra, if a timely assertion is made); Byrd v. Traveler’s Insurance Co., 275 S.W.2d 861 (Tex. Civ. App.—San Antonio 1955, writ ref’d n.r.e.). SEE EXAMPLE AT APPENDIX I.
Query ? does the doctrine of collateral estoppel/res adjudicata prevent a child from asserting paternity as to a man in a later action after a previous finding of paternity in which the child was not made an active party?
Early cases almost uniformly held that a child’s action is barred by prior litigation of mother and/or presumed father. Walters v. Walters, 586 S.W.2d 565 (Tex.Civ.App.—Austin 1978, no writ). Since these cases were decided, however, §160.003 TFC was inacted which provides in pertinent part:
“Necessary Party: Representation of Child.
(a) The child is not a necessary party to a suit under this chapter.
(b) It is rebuttably presumed in a trial on the merits before a judge or jury that the interests of the child will be adequately represented by the party bringing suit to determine parentage of the child. If the court finds that the interests of the child will not be adequately represented by a party to the suit or are adverse to that party, the court shall appoint an attorney ad litem to represent the child.”
Other cases of interest have been decided since the enactment of §160.003. Holding that the child’s action is barred by the previous adjudication are the cases of Attorney General in behalf Ridge v. Ridge, supra; Stroud v. Stroud, 733 S.W.2d 619 (Tex.App.—Dallas 1987, no writ); In the Interest of A.M., 936 S.W.2d 59 (Tex.App.—San Antonio 1996, no writ); and Purcell v. Bellinger, 940 S.W.2d 599 (Tex.1997). Holding that the child’s interest were not adequately represented and the prior case did not serve to bar the child’s action is R.M.H. by Gabert v. Messick, 828 S.W.2d 226 (Tex.App.—Ft. Worth 1992, no writ).
c. Untimely assertion of interest
Proceeding on the heels of In Re J.W.T., supra discussed previously, the Texas legislature passed §160.110(f) which reads:
“(f) The Court shall dismiss a suit contesting a presumption of paternity filed by a man who is not a presumed father, but who alleges himself to be the biological father of a child, if:
(1) the suit is filed after the second anniversary of the later of:
(A) the date of birth of the child; or
(B) the time the presumption of paternity came into existence after the child was born; and
(2) the presumed father:
(A) has resided in the same household as the child in a father-child relationship or has established a father-child relationship with the child through his other actions; and
(B) requests an order designating him as the father of the child.”
This statute has been approved by the court to limit an interloper’s right to assert paternity. In the Interest of A.M., supra. It should be noted that the issue is properly raised by an affirmative defense as a “plea at bar” and requires that the party asserting the plea move to have the court address the plea prior to proceeding on the case in chief. id at 62.
SEE EXAMPLE AT APPENDIX G.
d. Death of presumed father
The Tyler court of appeals has held that a paternity suit may not be brought after the death of the alleged biological father. In re George, 794 S.W.2d 875 (Tex.App.—Tyler 1990, no writ). The Tyler court expressly declined to follow Manuel v. Spector, 712 S.W.2d 219 (Tex.App.—San Antonio 1986) (orig. proceeding), in which the opposite conclusion was reached. SEE EXAMPLE AT APPENDIX J.
e. Limitations
§160.002 limits the time within which a suit to determine parentage may be brought:
“Time in Which to Bring Suit to Determine Parentage.
(a) A suit affecting the parent-child relationship to determine parentage under Subchapter B may be brought before the birth of the child, but must be brought on or before the second anniversary of the date the child becomes an adult, or the suit is barred.
(b) This section applies to a child for whom a parentage suit was brought but dismissed because a statute of limitations of less than 18 years was then in effect.”
SEE EXAMPLE AT APPENDIX K.
This provision, however, has been held not to bar a suit by an adult without an opportunity to bring a paternity action during his minority who seek to establish heirship. Dickson v. Simpson 807 S.W.2d 209 (Tex 1991); In Re A.S.L., 923 S.W.2d 814 (Tex.App.—Amarillo 1996, no writ).
For suits filed before September 1, 1995, a four-year statute of limitations period may apply to suits to deny paternity or to rebut a presumption of paternity. See T.W.E. v. K.M.E., 828 S.W.2d 806 (Tex.App.—San Antonio 1992, no writ). Texas had not enacted a specific statute of limitations that limited a parent’s ability to challenge a putative father’s paternity. T.W.E., 828 S.W.2d at 809. The residual four-year statute of limitations may therefore apply to such suits. T.W.E., 828 S.W.2d at 809-10. See also Tex. Civ. Prac. & Rem. Code Ann. §16.051 (Vernon 1997).
f. Failure to Submit to Blood Tests
§160.107 TFC provides as follows:
“Effect of Refusing Parentage Testing.
(a) An order for parentage testing is enforceable by contempt and:
(1) if the petitioner is the mother or an alleged father and refuses to submit to parentage testing, the court may dismiss the suit; or
(2) if a party refuses to submit to court-ordered parentage testing, on proof sufficient to render a default judgment the court may resolve the question of parentage against the party.
(b) If a parent or an alleged parent refuses to submit to parentage testing, the fact of refusal may be introduced as evidence as provided by this subchapter.”
SEE EXAMPLE AT APPENDIX L.
II. What Happens When Parentage Becomes an Issue in Divorce?
A. Conservatorship and Support
The court may provided for the managing and possessory conservatorship and support of an access to the child. Tex. Fam. Code Ann. §160.005(a) (Vernon 1996).
Subject to the prohibition in Code §153.004 concerning a history of domestic violence, one or both parents shall be appointed managing conservator(s) unless the court finds that appointment of the parent or parents would not be in the child’s best interest because the appointment would significantly impair the child’s physical health or emotional development. TFC §153.131(a) (Supp. 1998). It is rebuttably presumed that the appointment of the parents as joint managing conservators is in the child’s best interest; a finding of a history of family violence involving the child’s parents removes the presumption. TFC §153.131(b).
The presumption that a parent should be appointed managing conservator is rebutted if the court finds that the parent has voluntarily relinquished actual care, control, and possession of the child to a nonparent for a period of one year or more, a portion of which was within ninety days preceding the date of intervention in or filing of the suit, and that the appointment of the nonparent as managing conservator is in the child’s best interest. TFC §153.373 (1996).
The court may render a temporary order, as described below at B.
On a finding of parentage, the court may order support retroactive to the time of the child’s birth and, on a proper showing, may order a party to pay an equitable portion of all prenatal and postnatal health care expenses of the mother and the child. TFC §160.005(b). In ordering the retroactive child support, the court shall use the child support guidelines provided in Code chapter 154, together with any relevant factors. TFC §160.005(c).
Interest accrues on a money judgment for retroactive child support at the annual rate of 12 percent simple interest from the date the order is rendered until the judgment is paid. TFC §157.265(c).
B. Temporary Orders
The court may render a temporary order authorized in a suit affecting the parent-child relationship, including an order for temporary support of a child, if the person ordered to pay support—
1) is a presumed parent under Code chapter 151;
2) is an alleged father petitioning to have his paternity adjudicated or who admits paternity in pleadings filed with the court; or
3) is found by the court at a pretrial conference authorized by Code chapter 160 not to be excluded as the child’s biological father, with the court finding that at least 99 percent of the male population is so excluded.
Tex. Fam. Code Ann. §160.004 (Vernon 1996). Provisions for a temporary order are found in TFC §§105.001 and 109.001.
C. Preferential Setting
In a suit for determination of parentage, after a hearing, the court shall grant a motion for preferential setting for trial on the merits filed by a party to the suit or by the attorney or guardian ad litem for the child. The court shall give precedence to the trial over other civil cases if discovery has been completed or sufficient time has elapsed since the filing of the suit for the completion of all necessary and reasonable discovery if diligently pursued. Tex. Fam. Code Ann. §160.108(a)(Vernon 1996). These provisions apply to trial on the merits without regard to whether the suit is set for trial before the court or before a jury. TFC §160.108(b).
D. Evidence at Trial
A party may call a parentage testing expert to testify at the trial in person or by deposition. Tex. Fam. Code Ann. §160.109(a)(Vernon 1996). A verified written report of a parentage testing expert is admissible at the trial as evidence of the truth of the matters it contains. TFC §160.109(b).
If the parentage tests show the possibility of an alleged father’s paternity, the court shall admit this evidence if offered at the trial. TFC §160.109(c). Parentage test results offered at the trial are admissible as evidence if they were conducted under court order or by agreement, without regard to whether the tests were performed before or after the suit was filed. TFC §160.109(d).
The party seeking to establish an alleged father’s paternity retains the right to open and close at trial, without regard to whether the court has shifted the burden of proof to the opposing party. TFC §160.109(e).
If a copy is provided to the adverse party and to the court at the pretrial conference, submission of a copy of a medical bill for prenatal and postnatal health care expenses of the mother and child or for charges directly related to the parentage testing constitutes a prima facie showing that the charges are reasonable, necessary, and customary and may be admitted as evidence of the truth of the matters stated in the bill. TFC §160.109(f).
E. Presumptions and Burden of Proof
In any suit in which there is a presumption of parentage under Family Code chapter 151, the party denying the presumed father’s paternity has the burden of rebutting the presumption of paternity by clear and convincing evidence. Tex. Fam. Code Ann. §160.110(a)(Vernon 1996). If two or more presumptions are in conflict, the presumption that is founded on the weightier considerations of policy and logic controls. The court shall find that the weightier presumption of paternity is that of a presumed father who is not excluded as the biological father of the child by scientifically accepted paternity testing that shows that at least 99 percent of the male population is excluded. TFC §160.110(e).
If the parentage tests show the possibility of an alleged father’s paternity and that at least 99 percent of the male population is excluded from the possibility of being the father, evidence of these facts constitutes a prima facie showing of the alleged father’s paternity, and the party opposing the establishment of the alleged father’s paternity has the burden of proving that the alleged father is not the child’s father. TFC §160.110(b).
A party who refuses to submit to parentage testing has the burden of proving that the alleged father is not the child’s father. TFC §160.110(c).
F. Jury
A party in a paternity suit is entitled to a jury. Tex. Fam. Code Ann. §105.002(a)(Vernon 1996).
G. Order
On a verdict of the jury, or a finding of the court if there is no jury, the court shall render a final order declaring whether an alleged parent is the biological parent of the child. Tex. Fam. Code Ann. §160.006(a)(Vernon 1996). SEE EXAMPLE AT APPENDIX E. The effect of an order declaring that an alleged parent is the biological parent of the child is to confirm or create the parent-child relationship between the parent and the child for all purposes. TFC §160.006(b). If parentage is established, the order shall state the name of the child. TFC §160.006(c). The order of the court must also conform to the requirements of Code section 105.006. TFC §105.006 (1996 & Supp. 1998).
In the order, the court may order a reasonable fee for each court-appointed expert. The court may require the fee to be paid by any or all of the parties in the amounts and in the manner directed or tax all, part, or none of the fee as costs in the suit. TFC §160.104(b)(1996).
An attorney ad litem appointed to represent a child or parent is entitled to a reasonable fee as provided in Code section 107.015. TFC §107.015(a). There is no corresponding statutory provision for fees of a guardian ad litem; however, TFC §202.005 provides for fees for friends of the court.
H. Inheritance Rights
A person claiming to be a biological child of a decedent who is not otherwise presumed to be the decedent’s child, or a person claiming inheritance through such a child, may petition the probate court for a determination of right of inheritance. If the court finds by clear and convincing evidence that the purported father was the biological father of the child, the child is treated as any other child of the decedent for the purpose of inheritance. A purported father of a child, whether recognized or not, may not inherit if the purported father’s parental rights have been terminated. Tex. Prob. Code Ann. §42(b)(Vernon Supp. 1998).
III. Recent Legislative Changes Providing for Acknowledgment of Paternity
Effective September 1, 1999 new rules regarding voluntary (non-judicial) acknowledgment of paternity required by federal mandate went into effect. The new statute is here quoted in its entirety.
“The “Personal Responsibility and Work Opportunity Reconciliation Act of 1996” requires that states adopt procedures under which a signed voluntary acknowledgment of paternity is considered to be a legal finding of paternity, subject to the right of a signatory to rescind the acknowledgment within 60 days, or to contest the acknowledgment under limited circumstances. Because state have some latitude in fashioning procedures to comply with the federal requirement, the Texas Legislature established a process whereby the acknowledgment becomes a legal finding of paternity equivalent to a judicial determination only on its being signed jointly by the parents and being filed with the Bureau of Vital Statistics. Furthermore, to be effective the acknowledgment must be accompanied by a denial of paternity signed by any presumed father, such as the mother’s absentee husband. The suit to contest, which must be filed within four years of the filing of the acknowledgment, is conducted in the same manner as a proceeding to determine parentage under Subchapter B; in short, this means that the contesting party will have the ability to obtain an order for scientific parentage (DNA) testing.
Ҥ160.201. Voluntary Acknowledgment of Paternity.
The mother of a child and a man claiming to be the father of the child may execute an acknowledgment of paternity as provided by this subchapter to establish the man’s paternity.
Ҥ160.202. Execution of Acknowledgment of Paternity.
(a) An acknowledgment of paternity must:
(1) be in writing;
(2) be signed by the mother and the putative father; and
(3) state whether the child whose paternity is being acknowledged has a presumed father under Section 151.002.
(b) If the mother declares in the acknowledgment that there is a presumed father of the child, the acknowledgment must be accompanied by a denial of paternity signed by the presumed father, unless the presumed father is the man who has signed the acknowledgment.
Ҥ160.203. Filing Acknowledgment of Paternity.
(a) An acknowledgment of paternity executed under this subchapter shall be filed with the bureau of vital statistics.
(b) The bureau of vital statistics may not charge a fee to file the acknowledgment.
Ҥ106.204. Signing of Acknowledgment or Denial of Paternity.
(a) An acknowledgment of paternity or a denial of paternity may contain the mother’s signature and the putative father’s signature on separate documents.
(b) An acknowledgment of paternity or a denial of paternity may be signed before the birth of the child.
(c) An adult or a minor may sign an acknowledgment of paternity or a denial of paternity.
Ҥ160.025. Effect of Acknowledgment of Paternity,
(a) Subject to the right to rescind or contest an acknowledgment of paternity under this subsection, a signed acknowledgment of paternity filed with the bureau of vital statistics is a legal finding of paternity of a child equivalent to a judicial determination.
(b) If the mother or the man claiming to be the father falsely denies the existence of a presumed father in an acknowledgment of paternity, the acknowledgment of paternity is voidable within the time to rescind under Section 160.206.
Ҥ160.206. Suit to Rescind Acknowledgment or Denial.
(a) Subject to the requirements of Subsection (b), a person who signs an acknowledgment of paternity or a denial of paternity may file a suit affecting the parent-child relationship to rescind the acknowledgment of paternity or denial of paternity.
(b) The petition to rescind an acknowledgment of paternity or a denial of paternity must be filed not later than the earlier of:
(1) the 61st day after the date the acknowledgment of paternity or denial of paternity is filed with the bureau of vital statistics; or
(2) the date of the first hearing before a tribunal to determine an issue relating to the child in which the person is a party, including a proceeding that estsblishes support.
(c) If a proceeding to rescind an acknowledgment of paternity or a denial of paternity is filed jointly or agreed to by all necessary parties, the court shall order the bureau of vital statistics to amend the birth record of the child by removing the father’s name.
(d) If the proceeding to rescind is not agreed to by all parties, the court shall conduct a hearing in the same manner as a proceeding to determine parentage under this chapter.
Ҥ160.207. Suit to Contest Acknowledgment or Denial.
(a) A person who may contest a presumption of paternity under Section 160.101 may contest an acknowledgment of paternity or a denial paternity by filing a suit affecting the parent-child relationship. A suit to contest an acknowledgment of paternity or a denial of paternity that is filed after the time for a suit to rescind under Section 160.206 may be filed only on the basis of fraud, duress, or material mistake of fact. The party challenging the acknowledgment of paternity or the denial of paternity has the burden of proof.
(b) A suit to contest an acknowledgment of paternity or a denial of paternity shall be conducted in the same manner as a proceeding to determine parentage under this chapter.
(c) A person must bring suit to contest an acknowledgment of paternity or a denial of paternity not later than the fourth anniversary of the date the acknowledgment of paternity of the denial of paternity is filed with the bureau of vital statistics.
(d) A suit to contest an unrescinded acknowledgment of paternity may not be filed after the date a court has rendered an order, including a child support order, based on the acknowledgment of paternity.
(e) Notwithstanding any other provision of this chapter, a collateral attack on an acknowledgment of paternity executed under this subchapter may not be filed after the fourth anniversary of the date the acknowledgment of paternity is filed with the bureau of vital statistics.
“160.208. Procedure for Suit to Rescind or Contest.
(a) Each person who signs an acknowledgment of paternity or a denial of paternity must be made a party to a suit to rescind or contest the acknowledgment of paternity or denial of paternity.
(b) Except for good cause shown, the court may not suspend the legal responsibility of a person arising from the acknowledgment of paternity, including the duty to pay child support, while a suit is pending.
(c) On a determination of paternity or nonpaternity, the court shall order the bureau of vital statistics to amend the birth record of the child in accordance with the order of the court.
“160.209. Court Ratification.
An unrescinded an uncontested acknowledgment of paternity is valid and affective without court ratification. In a judicial, administrative, or other proceeding, parentage of a child may be proved by evidence that an unrescinded and uncontested acknowledgment of paternity of the child has been filed with the bureau of vital statistics.
“160.210. Full Faith and Credit.
An acknowledgment of paternity signed in another state shall be accorded full faith and credit by the courts of this state if the acknowledgment is signed in apparent compliance with the other state’s law.
“160.211. Validation of Earliest Statement.
A statement admitting paternity or an obligation to support a child that was signed before September 1, 1999, is valid and binding even though the statement is not executed as provided by this subchapter.
“160.212. Forms for Acknowledgment and Denial of Paternity.
(a) The bureau of vital statistics shall prescribe forms for an acknowledgment of paternity and a denial of paternity to comply with this subchapter.
(b) The forms prescribed under this section must:
(1) contain information regarding the procedure to rescind an acknowledgment or a denial;
(2) provide that the signatures on the forms are witnessed and signed under penalty of perjury; and
(3) state whether the mother, the putative father, or the presumed father is a minor.
(c) The form for acknowledgment of paternity must inform the putative father that signing the acknowledgment of paternity with the consent of the mother:
(1) creates the parent-child relationship between him and the child;
(2) imposes upon him a legal duty to support the child; and
(3) enables a court to grant him the right of custody or visitation with the child.
(d) The form for denial of paternity must inform the man that signing the denial of paternity with the consent of the mother:
(1) legally determines the nonpaternity of the child;
(2) removes the legal duty that he support the child; and
(3) terminates the right of conservatorship or possession of or access to the child.
Ҥ160.213. Validity of Forms.
The validity of an acknowledgment of paternity or a denial of paternity is not affected by a modification of the prescribed form by the bureau of vital statistics that occurs after the acknowledgment of paternity or denial of paternity is signed if the form met the requirements of state law at the time it was signed.
Ҥ160.214. Release of Information.
The bureau of vital statistics shall release information relating to the acknowledgment or denial of paternity and rescinding an acknowledgment or a denial of paternity to the Title IV-D agency and any other person authorized by law.
Ҥ160.215. Adoption of Rules.
The Title IV-D agency and the bureau of vital statistics may adopt rules to implement this subchapter.
Ҥ160.216. Memorandum of Understanding.
The Title IV-D agency and the bureau of vital statistics shall adopt a memorandum of understanding governing the collection and transfer of information for the voluntary acknowledgment of paternity. The Title IV-D agency and the bureau of vital statistics shall review the memorandum semiannually and renew or modify the memorandum as necessary.
“Subchapter D. Paternity Registry
Ҥ160.251. Paternity Registry; Purpose.
(d) A man is not required to register with the paternity registry if he:
(1) is presumed to be the biological father of a child under Chapter 151;
(2) has been adjudicated to be the biological father of a child by a court of competent jurisdiction; or
(3) has filed an acknowledgment of paternity under Subchapter C.
Ҥ160.2545. Information Regarding Registry, Birth Records, and Acknowledgments of Paternity Filed with Bureau of Vital Statistics.
(a) On receipt of a request for a certificate of a request for a certificate under Section 160.260 attesting to the results of a search of the paternity registry, the bureau of vital statistics shall search:
(1) notices of intent to claim paternity filed with the registry under this subchapter;
(2) birth records maintained by the bureau;
(3) acknowledgments of paternity filed with the bureau under Subchapter (a) to the requestor.”
SEE EXAMPLE AT APPENDIX M.
IV. Required Affidavit in All SAPCR Litigation
§152.209 TFC now requires an affidavit to be filed in every SAPCR, regardless of the domicile of all parties in Texas, except where the affidavit demonstrates the health, safety, or liberty of a child is jeopardized by disclosure. The affidavit requires disclosure of a number facts.
The statute is here quoted in its entirety:
“Information to be Submitted to the Court.
(a) Except as provided by Subsection (e), in a child custody proceeding, each party, in its first pleading or in an attached, shall give information, if reasonably ascertainable, under oath as to the child’s present address or whereabouts, the places where the child has lived during the last five years, and the names and present addresses of the persons with whom the child has lived during that period. The pleading or affidavit must state whether the party:
(1) has participated, as a party or witness or in any other capacity, in any other proceeding concerning the custody of or visitation with the child and, if so, identify the court, the case number, and the date of the child custody determination, if any;
(2) knows of any proceeding that could affect the current proceeding, including proceedings for enforcement and proceedings relating to domestic violence, protective orders, termination of parental rights, and adoptions and, if so, identify the court, the case number, and the nature of the proceeding; and
(3) knows the names and addresses of any person not a party to the proceeding who has physical custody of the child or claims rights of legal custody or physical custody of, or visitation with, the child and, if so, the names and addresses of those persons.
(b) If the information required by Subsection (a) is not furnished, the court, upon motion of a party or its own motion, may stay the proceeding until the information is furnished.
(c) If the declaration as to any of the items described in Subsections (a)(1) through (3) is in the affirmative, the declarant shall give additional information under oath as required by the court. The court may examine the parties under oath as to details of the information furnished and other matters pertinent to the court’s jurisdiction and the disposition of the case.
(d) Each party has a continuing duty to inform the court of any proceeding in this or any other state that could affect the current proceeding.
(e) If a party alleges in an affidavit or a pleading under oath that the health, safety, or liberty of a party or child would be jeopardized by disclosure of identifying information, the information must be sealed and may not be disclosed to the other party or the public unless the court orders the disclosure to be made after a hearing in which the court takes into consideration the health, safety, or liberty of the party or child and determines that the disclosure is in the interest of justice.
SEE EXAMPLE AT APPENDIX N.