“Billie Jean is not my lover. She’s just a girl who claims that I am the one. But, the kid is not my son.”
Anyone who is familiar with the legendary Michael Jackson remembers the lyrics to Billie Jean. For some, this was just a catchy dance number we could practice our “moonwalk” with. It is rumored that Michael Jackson actually wrote this song after receiving multiple letters from a woman claiming he was the father of her children. If you are reading this and you have your own Billie Jean moment then, you understand paternity is no dancing matter. Michael more than likely had a team of lawyers who could handle his situation. For many of us, we do not have that luxury and may need to find an experienced Family Law Attorney to help us out.
What is Paternity?
Paternity is the legal identification of a child’s father. When established the biological father becomes the child’s legal father with all of the rights and duties of a parent. Paternity can be established by (a) Presumption, (b) Voluntary Acknowledgment, or (c) Court Order. A court order is self-explanatory in the fact that a court says the man is the father of the child. In this piece, I want to focus on the presumption of paternity and the acknowledgment of paternity.
Presumption of Paternity
Texas law presumes a man who is married is the father of a child born during the marriage. Meaning there is nothing to file or prove to show that the man is the father because paternity is established by presumption. Section 160.204 of the Texas Family Code states the following:
- A man is presumed to be the father of a child if:
- he is married to the mother of the child and the child is born during the marriage;
- he is married to the mother of the child and the child is born before the 301st day after the date the marriage is terminated by death, annulment, declaration of invalidity, or divorce;
- he married the mother of the child before the birth of the child in apparent compliance with law, even if the attempted marriage is or could be declared invalid, and the child is born during the invalid marriage or before the 301st day after the date the marriage is terminated by death, annulment, declaration of invalidity, or divorce;
- he married the mother of the child after the birth of the child in apparent compliance with law, regardless of whether the marriage is or could be declared invalid, he voluntarily asserted his paternity of the child, and:
- the assertion is in a record filed with the vital statistics unit;
- he is voluntarily named as the child’s father on the child’s birth certificate; or
- he promised in a record to support the child as his own; or
- during the first two years of the child’s life, he continuously resided in the household in which the child resided and he represented to others that the child was his own.
In some instances, there may be a question on whether or not the child belongs to the married man. Section 160.204 of the Texas Family Code further states:
A presumption of paternity established under this section may be rebutted only by:
(1) an adjudication… or
(2) the filing of a valid denial of paternity by a presumed father in conjunction with the filing by another person of a valid acknowledgment of paternity as provided by Section 160.305.
Sometimes it is blatantly obvious that the child is not a product of the married couple. Quite often, questions about paternity tend to show up when the parties have filed for divorce. An experienced Family Law Attorney will help you figure out the next course of action when it comes to fighting the presumption of paternity if you believe the child is not yours.
Acknowledgment of Paternity
Sometimes children are born when the parents are not married. If all of the parties agree on the identity of the child’s father than paternity will be established by filing a signed Acknowledgment of Paternity with the Texas Vital Statistics Unit. The mother and father both sign the form swearing that the man is the father of the child. Sometimes a man signs the Acknowledgment of Paternity only to be informed later that he is in fact not the father of the child. In cases like this, the man must rescind the Acknowledgement of Paternity or Challenge the Acknowledgement of Paternity depending on the circumstances of the case. If you are experiencing a situation where you are questioning the Acknowledgment of Paternity, choosing an experienced Family Law Attorney is your best course of action.
Denial of Paternity
A Denial of Paternity is a form signed by a presumed father swearing that he is not the one who fathered the child. The Denial of Paternity is only valid if the mother and the child’s genetic father sign an Acknowledgment of Paternity and the Acknowledgment and Denial of Paternity are filed with the Vital Statistics Unit.
The time may come when you have to go to court to prove that “the kid is not [your] son.” There are varying circumstances involved in the court’s decision regarding the paternity of the child. The most important is genetic testing of all parties involved. A genetic test will determine whether the presumed father is the genetic father of the child. Be forewarned. The court can deny a motion for genetic testing under Section 160.608 of the Texas Family Code if the court determines that:
(1) the conduct of the mother or the presumed father estops that party from denying parentage; and
(2) it would be inequitable to disprove the father-child relationship between the child and the presumed father.
Unfortunately, this scenario can hurt your chances of proving whether the child is your or not. However, an experienced Family Law Attorney can find a way to help you in the court proceeding should the court deny a motion for genetic testing.
If you find yourself experiencing your own “Billie Jean” moment, take the time to consult with an experienced Family Law Attorney from the Brandy Austin Law Firm.