iStock-1033856542Texas family law presumes a man is the father of a child in certain circumstances, including when he is married to the child’s mother at the time of the birth or when he continuously resides with the child for the first two years of the child’s life and holds himself out to others as the child’s father. Tex. Fam. Code § 160.204.  A Texas trial court must generally order genetic testing to determine parentage if one of the parties requests it, but that is not the case if there is a presumed father. Tex. Fam. Code § 160.502. When there is a presumed father, the court may deny the request for genetic testing if the conduct of the requesting party estops them from denying parentage and it would be inequitable to disprove the presumed father’s parentage.  In deciding whether to deny a request for genetic testing, the court must consider the child’s best interests, including certain enumerated factors. Tex. Fam. Code § 160.608

A man recently challenged a court’s order for genetic testing and subsequent adjudication that he was not the child’s father. The child was born while the appellant was in a relationship with the child’s mother.  According to the appeals court’s opinion, the appellant was aware he was not the child’s biological father but agreed to be listed as the father on the birth certificate.  The appellant and the mother broke up, but the appellant continued to see the child nearly every day.  The mother subsequently denied him access to the child after they were unable to reach a child-support agreement.

Man Petitions to Adjudicate Paternity

The appellant petitioned to be named a joint managing conservator of the child in 2016.  The trial court ordered genetic testing. When the results showed the appellant was not the child’s biological father, the trial court adjudicated him not to be the child’s father.  The appellant then appealed and asked the appeals court to name him joint managing conservator.

The appellant argued the trial court abused its discretion when it ordered genetic testing to rebut the presumed paternity. Tex. Fam. Code Ann. § 160.608. He also argued the court denied the child’s due process rights.

When the father petitioned to be appointed joint managing conservator and given the right to designate the child’s primary residence the mother asked the court to order genetic testing.  The appellant opposed the genetic testing.

Trial Court Orders Genetic Testing Over Man’s Objection

The trial court concluded the appellant had not shown the genetic testing should be denied by clear and convincing evidence. The court further found the presumption he was the child’s father had been rebutted and adjudicated him as the “non-father” of the child.

The appeals court noted that the issues of presumed parentage and estoppel were raised at the hearing.

The trial court had stated that it had reviewed the only opinion interpreting Tex. Fam. Code § 160.608 and referenced that section in its conclusion of law. The appeals court stated it could not find the trial court had abused its discretion in conclusion of law in light of the statutory factors.  The appeals court pointed out the appellant had known he was not the child’s father from the beginning, the child’s relationship with him had been during her early childhood, and he had assumed the role of father for five years.

Appeals Court Agrees that Genetic Testing was Proper

The appeals court further noted that the appellant had not met the burden of proof as to the estoppel defense since the mother had never given him any misinformation or uncertainty about the child’s parentage. The appeals court also found that the testimony about the “agreement” between him and the mother was vague.

The father also argued the trial court violated the child’s right to substantive due process, but the appeals court found he had not preserved his issue by presenting it to the trial court.

The appeals court affirmed the trial court’s order.

Paternity Cases Present No Room for Error – Call Experienced Attorneys to Handle Your Case

This case shows that presumed parentage can be rebutted and that the court may order genetic testing in the case of a presumed father if it properly considers the statutory factors.  If you want to adjudicate parentage in situation involving a presumed father, the experienced Texas paternity lawyers at McClure Law Group can help.  Call 214.692.8200 to schedule an appointment to talk about your case.