There was always talk that Fred was the daddy. However, each time Fred asked to see his purported daughter Jillian, her Mom Patricia, would not allow it. There was always some excuse and Fred heard it all. “We have plans that weekend.” “Jillian would be at grandma's.” “Jillian does not know him and was too young to spend time with a stranger.” “Jillian and/or Patricia was ill.” “It was way too cold to carry a child that age out.” “It was way too hot to carry a child that age out.” The excuses ran the gambit. However, the excuses at least meant he could speak to Patricia about the matter. There were stretches of time, sometimes weeks, sometimes months, when Fred attempted to reach out to Patricia and she was non-responsive or simply no-where to be found. The longest stretch lasted 18 months where Fred reached out but had no knowledge of Patricia and Jillian's whereabouts. Mutual friends of Fred and Patricia indicated she and her husband left Texas. They eventually resumed communicating again when Patricia and Jillian moved to Fresno, TX. However, the situation did not change. He never saw Jillian. Oddly enough, each time Fred asked for a DNA test between he and Jillian, Patricia became defensive. She would accuse Fred of insinuating she was a slut and then the arguments and name calling between each would begin. She often told Fred no test was needed because you could look at Jillian and see the resemblance. Fred eventually became frustrated with the situation and gave up communicating with Patricia. That was until the day, four and half years after Jillian's birth, he opened his mail to find a letter from his local child support office. The letter requested a sit down meeting between he and Patricia to negotiate an agreement for child support of Jillian. Fred blew his top he was so mad. Who did this woman think she was. He certainly was not going to pay to support a child he could not see or who he even knew was his or not. He thought about just ignoring the letter but he also could not stand the limbo of the situation. His mind flashed back to the basketball games he played in high school and the hurt he would feel seeing his teammates' Dads at the game and not knowing who his Dad was much less where he was. That same feeling of hurt and lost was felt each birthday and Christmas he spent with just he and his Mom. While he was not sure if Jillian was his daughter, in the event she was, he did not want any child of his to know the hurt of having an absent father. Fred knew he had to do DNA testing to make sure Jillian was his. However, that would take time and the meeting at the child support office was in a few days. He was sure that would not be enough time. Fred questioned what steps to take next.
The Parent-Child Relationship
An established parent-child relationship confers on a person, the obligation to pay or receive support, the rights to access and possession of a child, the right to access records and exercise decision making authority on the behalf of a child and inheritance rights between parent and child. The significant rights and obligations created in a parent-child relationship warrants the need for certainty as in the fictional situation of Fred, Patricia and Jillian. Genetic testing can provide the answers when paternity is unclear.
A party in the establishment of a parent-child relationship has the right to request genetic testing. Quite frankly, should a party in a suit to determine parentage request it, a court shall order a child and designated individuals to submit to genetic testing.1 A report of a genetic testing expert is admissible as evidence as the truth of facts asserted in the report. 2 The only time a genetic testing report will be inadmissible in a paternity proceeding is where a child has a presumed, acknowledged or adjudicated father and mother and said father has not given consent for genetic testing or a court has not ordered genetic testing.3 A man whose test results show he is the genetic father to a child shall be adjudicated the father of the child. A man whose test results show he is excluded as the genetic father to a child shall be adjudicated as not being the father of the child. 4
Time Limits to Request Genetic Testing
Fred's request for genetic testing could be denied if Jillian has a presumed or acknowledged father. If another man was adjudicated as dad or signed an acknowledgment of paternity, then a non-signatory or non-party to the paternity proceeding will have up to four years after the acknowledgment or adjudication to challenge it.5 As stated above, Patricia and Jillian disappeared for a few months out of Fred's life because she moved with her husband. If Jillian was born during Patricia's marriage to her husband, he is Jillian's presumed father. A suit to adjudicate paternity must be brought no later than the fourth anniversary of the child's birth.6 Jillian is four and a half. Thus, if there is a presumed father in the picture, a suit to adjudicate Fred as the father could be barred due to the time it is brought. However, a paternity suit to adjudicate Fred as Jillian's dad could still proceed even if Jillian has a presumed father and other conditions exist. For example, if a court determines the child's mother, Patricia, and the presumed father did not live together or engage in sexual intercourse during the probable time of conception, than a paternity suit may be maintained at any time. 7 Another situation where Fred would be allowed to seek genetic testing to adjudicate himself as Jillian's father would be if the presumed father in the picture was precluded from contesting his paternity of Jillian before her fourth birthday because he mistakenly believed he was the father due to misrepresentations from Jillian's mother Patricia.8
If a child does not have any other presumed, acknowledged, or adjudicated father, then a proceeding to adjudicate paternity may be brought at anytime.9 Thus, if Jillian has no presumed, acknowledged, or adjudicated father, nothing precludes Fred from seeking genetic testing to determine his paternity to her.
Court's Authority to Deny Genetic Testing
A court could deny a motion for genetic testing if it determines the mother's conduct or the presumed father's conduct estops them now from denying paternity. A court could also deny a motion for genetic testing if it would be inequitable to disprove the father-child relationship between the presumed father and a child.10
Who Pays for Genetic Testing
The cost for initial genetic testing must be advanced by a support enforcement agency if the agency is providing services in the proceeding.11 However, if an individual is rebuttably proved to be the father in genetic testing, the enforcement agency may seek reimbursement for the costs of genetic testing.12 Thus, in the fictional situation above, because the office of attorney general is providing services in the proceeding, the OAG office will bear the initial responsibility to bear the costs. However, if Fred is rebuttably proven through genetic testing to be Jillian's father, the OAG's office could seek reimbursement from Fred for the initial costs. A party must also pay the initial costs for genetic testing where they request genetic testing, as per agreement between the parties or as otherwise ordered by a court.13
If you are in a similar situation as Fred, Jillian and Patricia and would like legal advice or assistance in seeking genetic testing to prove or disprove a parental relationship, visit our contact page to find out how you may schedule a consultation.
Author's Information: Attorney Tracey A. Beecher is a family law practitioner. She represents clients with divorce, child support, child custody, property division in relation to divorce proceedings, and child protective services cases. She appears in courts within Brazoria, Fort Bend, Galveston, Harris, Liberty, Montgomery, and Waller counties.
Legal Disclaimer: Each person's situation and circumstances are unique. As such, this article is given to provide general information only. It is not legal advice nor is it intended as a substitute for legal counsel. Should the reader need legal advice or counsel, it is appropriate to seek the assistance of a licensed attorney.
1 Texas Family Code § 160.502 (a)
2 Texas Family Code § 160.621 (a)
3 Id. at (c)
4 Texas Family Code §160.631 (c-d)
5 Texas Family Code § 160.609 (b)
6 Texas Family Code § 160.607 (a)
7 Texas Family Code § 160.607 (b)(1)
8 Id. at (b)(2)
9 Texas Family Code § 160.606
10 Texas Family Code § 160.608
11 Texas Family Code § 160.506 (a)(1)
12 Id. at (b)
13 Id. at (a)