By Atty. LaTosha Clayton-McGill
Have you been ordered to pay child support?
Have you discovered through genetic testing that you Are Not the father of the child?
Have you developed an emotional bond with the child?
Do you desire to continue the bond between you and the child regardless of the results of genetic testing?
If you have answered YES to these questions, Senate Bill (SB) 785 also known as the “mistaken paternity bill” may be the solution. SB 785, which was enacted this past 2011 legislative session, is referred to as the law that addresses paternity fraud in which the father signed an order admitting that he was the father without genetic testing. Consequently the father would be responsible for paying child support. Prior to Senate Bill 785, the father was barred in certain instances from contesting paternity and was therefore responsible for paying child support even if he discovered that he was not the father of the child through genetic testing or the mother admitting that he was not the father.
Senate Bill 785 amends Section 154.006 and 161.005 of the Texas Family Code and provides that a man is authorized to file a suit for termination of the parent-child relationship between the man and the child if, without obtaining genetic testing, the man signed an acknowledgment of paternity or was adjudicated to be the father of the child in a previous proceeding in which genetic testing did not occur. Senate Bill 785 DOES NOT apply if the man is the child‘s adoptive father; the child was conceived by assisted production and the man consented to assisted production by his wife or the man is the intended father of the child under a gestational agreement.
The petition must be filed not later than the first anniversary of the date which the petitioner or man becomes aware of the facts indicating that he is not the child‘s genetic father.
However, any man may bring a petition under the bill without regard to when the man learned that the child was not his biological child. In other words, if you are currently paying child support and you are aware that you are not the biological father, you must act NOW as the bill provides certain deadlines that may prevent you from bringing your petition to terminate. If the court determines that a meritorious case exists for termination, the court orders genetic testing and the genetic testing determines the outcome of the case.
If the court orders that the parent-child relationship is terminated, the man may no longer be required to pay child support in the future. That‘s right! A man may be released from paying future child support if he is not the father of the child! However, if the man has child support obligations already accrued such as a child support arrears judgment, the man is still obligated to pay any judgments and accrual of interest on any back child support owed.
For example, prior to the termination, a man is ordered to pay child support in the amount of $500 per month. The man fails to make payments and has an arrears judgment of $10,000 as a result of nonpayment, the man is still obligated to pay the $10,000 and any accrual of interest. However, he is not obligated to continue making monthly child support payments of $500 per month.
“What about the biological father? Can I get child support from him?”
I‘m glad you asked. If another man is determined to be the father of the child, that man may be ordered to pay child support, but he is NOT ordered to pay retroactive child support for any period preceding the date on which an order terminating another man‘s parent-child relationship is entered.
“My son is 12 and I found out I was not the biological father a couple of months ago. I am the only father that he knows. If the court orders the termination and I no longer have to pay child support, what happens to that father-son bond that we have?”
Good question! Fortunately, the legislators anticipated this scenario and thought about the significant impairment to the child.
I have good news…The bill provides that a man seeking to terminate a parent-child relationship may also petition the court to continue to allow him rights of possession and access of the child. If possession and access is granted, the court may require any party to participate in counseling with a mental health professional. Yes, you read it correctly!
The man who will no longer be obligated to pay child support as a result of mistaken paternity, may still have a right to exercise visitation with the child as well as certain rights and duties specified by the Texas Family Code subject to any limitations specified by the court in its order. Because of the fact that under this new law, a child may discover at any age that his father is in fact not his biological father, it is in the best interest of the child that the court may require the parties to participate in counseling and continue the bond between the child and the father whose paternity was mistaken. For more information regarding Senate Bill 785, please visit http://tinyurl.com/3sm6rjg.
The information provided herein is designed for general information only and should not be construed as formal legal advice. This information is not intended to replace nor is it a substitute for legal advice.
For more information or a legal consultation, call Attorney LaTosha Mc-Gill Clayton at (832) 216-8741.