Parentage
§ 54.1Nature of Remedy; Overview
Establishing in some manner the legal relationship of parent and child is an essential first step in many legal proceedings. Support obligations, inheritance rights, custody, possession, and access rights, and even the termination of parental rights to free a child for adoption, depend on at least an implied finding of parentage.
The Texas version of the Uniform Parentage Act (hereinafter UPA) governs every determination of parentage in Texas, including probate proceedings, interstate custody, and interstate support actions, except as provided by chapter 233 of the Family Code. Tex. Fam. Code § 160.103(a). The applicable law does not depend on the place of birth of the child or the past or present residence of the child. Tex. Fam. Code § 160.103(b). If a provision of UPA conflicts with another Family Code title 5 provision or another state statute or rule and the conflict cannot be reconciled, UPA prevails. Tex. Fam. Code § 160.002. As of the publication date of this manual, no court has ruled on the question of whether these provisions overrule the supreme court’s holding in 1989 that the legitimation provisions of the Family Code do not apply to wrongful death actions. See Garza v. Maverick Market, Inc., 768 S.W.2d 273, 275 (Tex. 1989) (requiring “clear and convincing” standard of proof to establish parent-child relationship for purposes of wrongful death claim and specifically refusing “to incorporate the requirements of legitimation under the Family Code into the Wrongful Death Act”); Tamez v. Mack Trucks, Inc., 100 S.W.3d 549, 563 (Tex. App.—Corpus Christi–Edinburg 2003), rev’d on other grounds, 206 S.W.3d 572 (Tex. 2006) (court order establishing the parent-child relationship (pre-UPA) was some evidence of parentage to defeat motion for summary judgment).
Parentage actions include determination of mother-child as well as father-child relationships. See Tex. Fam. Code §§ 160.106, 160.201.
A court with jurisdiction to adjudicate parentage under “another law of this state” is authorized to adjudicate parentage under UPA. Tex. Fam. Code § 160.104(2).
A proceeding for adoption, termination of parental rights, possession of or access to a child, child support, divorce, annulment, or probate or administration of an estate or another appropriate proceeding may generally be joined with a suit to determine parentage. However, a respondent may not join such a proceeding with a proceeding to adjudicate parentage brought under Family Code chapter 159, the Uniform Interstate Family Support Act (UIFSA). Tex. Fam. Code § 160.610.
A court with jurisdiction to hear a suit affecting the parent-child relationship under Family Code title 5 has jurisdiction to adjudicate parentage. Tex. Fam. Code § 160.104(1). Habeas corpus proceedings to recover a child and suits filed under UIFSA are the only title 5 suits that are not suits affecting the parent-child relationship. Tex. Fam. Code § 101.032(b). A Texas court authorized to determine the parentage of a child may serve as a responding tribunal in a proceeding to determine parentage brought under UIFSA. See Tex. Fam. Code § 159.701.
A probate court may determine parentage for a person claiming to be a biological child or descendant of the decedent. See Tex. Est. Code § 201.052. The effective date provision of the legislation that adopted UPA makes the new provisions applicable to proceedings commenced after the effective date of the act. However, the Waco court of appeals refused to apply UPA in a probate case in which the decedent died before June 14, 2001, holding that to do so would impair substantive rights of the heirs that vested on death. Wilson ex rel. C.M.W. v. Estate of Williams, 99 S.W.3d 640, 645 (Tex. App.—Waco 2003, no pet.).
§ 54.2Nonjudicial Determination of Parentage
The Family Code definition of “parent” includes a mother, a man who has acknowledged his paternity of the child, or a man presumed under UPA to be the father. See Tex. Fam. Code § 101.024. If the mother, alleged father, and presumed father all agree and are available to execute an acknowledgment and denial of paternity, judicial action to establish parentage is neither necessary nor appropriate. An unrebutted presumption of paternity or maternity also establishes the parent-child relationship without court action.
§ 54.3Presumption of Parentage
The mother-child relationship is established by (1) the woman’s giving birth to the child, (2) an adjudication of the woman’s maternity, or (3) the adoption of the child by the woman. Tex. Fam. Code § 160.201(a). If maternity is disputed, UPA applies for the purpose of adjudicating maternity. See Tex. Fam. Code § 160.106.
The father-child relationship is established by (1) an unrebutted presumption of the man’s paternity of the child; (2) an effective acknowledgment of paternity unless the acknowledgment has been rescinded or successfully challenged; (3) an adjudication of the man’s paternity; (4) the adoption of the child by the man; or (5) the man’s consenting to assisted reproduction by his wife, which resulted in the birth of the child. Tex. Fam. Code § 160.201(b).
A man is presumed to be the father of a child if—
1.he is married to the mother of the child and the child is born during the marriage;
2.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;
3.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;
4.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 (a) the assertion is in a record filed with the vital statistics unit, (b) he is voluntarily named as the child’s father on the child’s birth certificate, or (c) he promised in a record to support the child as his own; or
5.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.
Gender-neutral treatment as set forth in Family Code section 160.106 obligates courts to treat a woman who is married to the mother of the child at the time of birth as a parent for purposes of standing and other obligations. In re D.A.A.-B., _____ S.W.3d ___, No. 08-2100058-CV, 2022 WL 3758574 (Tex. App.—El Paso Aug. 30, 2022, no pet.); Treto v. Treto, 622 S.W.3d 397, 402 (Tex. App.—Corpus Christi–Edinburg 2020, no pet.). But see In re A.E., No. 09-16-00019-CV, 2017 WL 1535101, at *10 (Tex. App.—Beaumont Apr. 27, 2017, pet. denied) (mem. op.) (same-sex spouse of woman who had child through assisted reproduction did not have standing to bring parentage claim).
“Record” is defined as “information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in a perceivable form.” See Tex. Fam. Code § 160.102(15).
Effective September 1, 2003, two additional presumptions were added in the gestational agreement context: “the mother-child relationship exists between a woman and a child by an adjudication confirming the woman as a parent of the child born to a gestational mother under a gestational agreement if the gestational agreement is validated under this subchapter or enforceable under other law, regardless of the fact that the gestational mother gave birth to the child,” and the “father-child relationship exists between a child and a man by an adjudication confirming the man as a parent of the child born to a gestational mother under a gestational agreement if the gestational agreement is validated under this subchapter or enforceable under other law.” See Tex. Fam. Code § 160.753. In the absence of a valid gestational agreement, however, the rule of Family Code section 160.201(a)(1) that the mother-child relationship is established by the woman’s giving birth is not rebuttable by the results of genetic testing. In re M.M.M., 428 S.W.3d 389 (Tex. App.—Houston [14th Dist.] 2014, pet. denied).
§ 54.4Acknowledgment of Paternity
A properly completed and filed acknowledgment of paternity (hereinafter AOP) establishes the parent-child relationship without judicial action. A court or administrative agency may not ratify an unchallenged acknowledgment of paternity. Tex. Fam. Code § 160.310.
A valid acknowledgment of paternity filed with the vital statistics unit (hereinafter VSU) is the equivalent of an adjudication of the paternity of a child and confers on the acknowledged father all rights and duties of a parent. A valid denial of paternity filed with the VSU in conjunction with a valid acknowledgment of paternity is the equivalent of an adjudication of the nonpaternity of the presumed father and discharges the presumed father from all rights and duties of a parent. Tex. Fam. Code § 160.305. The filing of a valid denial of paternity by a presumed father in conjunction with the filing of a valid acknowledgment of paternity by another person also rebuts the presumption of paternity. Tex. Fam. Code § 160.204(b)(2). An acknowledgment of paternity constitutes an affidavit under 42 U.S.C. § 666(a)(5)(C). Tex. Fam. Code § 160.302(d).
However, an acknowledgment is void if it (1) states that another man is a presumed father of the child, unless a denial of paternity signed or otherwise authenticated by the presumed father is filed with the VSU; (2) states that another man is an acknowledged or adjudicated father of the child; or (3) falsely denies the existence of a presumed, acknowledged, or adjudicated father of the child. Tex. Fam. Code § 160.302(b).
An AOP cannot be used to establish the parent-child relationship if there is a presumed father unless the presumed father files a denial of his presumed paternity. See Tex. Fam. Code § 160.302(b)(1).
An “adjudicated” or “acknowledged” father cannot file a valid denial of paternity. Accordingly, an AOP cannot be used to establish the parent-child relationship if there is a prior acknowledgment or court order establishing another man as the father of the child. Tex. Fam. Code § 160.303(3).
§ 54.5Form for Acknowledgment and Denial of Paternity
Forms for acknowledgment of paternity, denial of paternity, and rescission of an acknowledgment or denial of paternity are prescribed by the VSU. See Tex. Fam. Code § 160.312(a). Instructions regarding the AOP form are available at www
.texasattorneygeneral.gov/cs/aop-certified-entities. The AOP form, in a usable format, will be provided by VSU only to a “certified entity” authorized to complete the forms; birth registrars in hospitals with birthing facilities generally are “certified” to complete the forms. The VSU may not charge a fee for filing this form. Tex. Fam. Code § 160.306.
However, the unit charges a fee for providing a certified copy after the form has been filed. In addition to the fee, the agency requires a copy of the client’s driver’s license and a release from the signatory granting the VSU permission to deliver the certified copy to the attorney. The agency has one other method to verify that the form was accepted and filed. A search of the paternity registry may be requested by submitting an Acknowledgment of Paternity Inquiry Request on the VSU form VS-134.1 with a search fee. The VSU may release information relating to the acknowledgment of paternity or denial of paternity to a signatory of the acknowledgment or denial and to the courts and title IV-D agency of Texas or another state. Tex. Fam. Code § 160.313.
Information about the unit’s requirements for filing the acknowledgment of paternity and the denial of paternity or the combined acknowledgment/denial of paternity and obtaining a certified copy of the form(s) may be obtained from the AOP Registry at 1-888-963-7111, ext. 2558 or ext. 2523.
An acknowledgment of paternity will be rejected by the VSU unless it is executed on the official VSU form VS-159.1 (dated “9/2005” or later) and contains a valid “entity code,” demonstrating that the person assisting with the execution of the form is properly certified as described below.
Individuals who assist with filling out or processing the AOP must be certified by the office of the attorney general under subchapter J, chapter 55, of the Texas Administrative Code. Certification must be renewed each year. See 1 Tex. Admin. Code §§ 55.401–.407. Each agency, organization, or individual certified to complete the forms receives an entity code, which must be entered on the form. The attorney general has established an online certification program for individuals or entities that intend to assist in completion of the AOP. The online training may be found at www
.texasattorneygeneral.gov/cs/acknowledgment-of-paternity-aop-certification
-training.
COMMENT: The Family Code no longer recognizes a “statement of paternity” as binding, and the provision making a statement of paternity signed before January 1, 1999, valid has been repealed. Acts 1999, 76th Leg., R.S., ch. 556, § 37, repealed by Acts 2001, 77th Leg., R.S., ch. 821, § 3.02 (H.B. 920), eff. June 14, 2001.
§ 54.6Effective Date of Acknowledgment and Denial of Paternity
An acknowledgment becomes effective when filed by the VSU or on the birth of the child, whichever occurs later. Tex. Fam. Code § 160.304(c). If there is a presumed father and the acknowledgment and denial of paternity are filed as separate documents, neither is effective until both have been filed. Tex. Fam. Code § 160.304(a). The VSU will not file the acknowledgment or denial until one or both forms have been reviewed and meet the unit’s requirements.
§ 54.7Effect of Unchallenged Acknowledgment and Denial of Paternity
The courts are specifically prohibited from ratifying an unchallenged acknowledgment and denial of paternity. Tex. Fam. Code § 160.310. It would therefore be improper to file a parentage suit to set support or provide for conservatorship, possession, or access to the child if an acknowledgment of paternity has been filed and no party is seeking to rescind or challenge the acknowledgment.
A suit for conservatorship or support may be filed based on an unrescinded and unchallenged acknowledgment of paternity. See chapter 40 of this manual.
An acknowledgment of paternity may not be ruled invalid based solely on testimony questioning the male signatory’s paternity given at a hearing on child support. The acknowledgment must be rescinded or challenged as provided by section 160.307 or section 160.308 of the Family Code. See In re S.R.B., 262 S.W.3d 428 (Tex. App.—Houston [14th Dist.] 2008, no pet.).
§ 54.8Special Procedures for Rescission or Challenge of Acknowledgment or Denial of Paternity
Rescission: A person signing the acknowledgment or denial of paternity may rescind the document within sixty days after the effective date or before the date a proceeding to which the signatory is a party is initiated before a court to adjudicate an issue relating to the child, whichever is earlier. Tex. Fam. Code § 160.307(a).
A signatory seeking to rescind an acknowledgment or denial of paternity must file with the VSU a completed rescission, on the form prescribed under Code section 160.312, in which the signatory declares under penalty of perjury that, as of the date the rescission is filed, a proceeding has not been held affecting the child identified in the acknowledgment of paternity or denial of paternity, including a proceeding to establish child support. The signatory must also swear that a copy of the completed rescission was sent by certified or registered mail, return receipt requested, to (1) the other signatory of the acknowledgment of paternity and the signatory of any related denial of paternity if the rescission is of an acknowledgment of paternity or (2) the signatories of the related acknowledgment of paternity if the rescission is of a denial of paternity. If a signatory to the acknowledgment of paternity or denial of paternity is receiving services from the title IV-D agency, the rescinding signatory must also swear that a copy of the completed rescission was sent by certified or registered mail to the title IV-D agency. Tex. Fam. Code § 160.307(b).
When the VSU receives a completed rescission, it must void the affected acknowledgment or denial of paternity and amend the child’s birth record, if appropriate. Tex. Fam. Code § 160.307(c). Any party affected by the rescission, including the title IV-D agency, may contest the rescission by bringing a proceeding under Family Code subchapter G to adjudicate the parentage of the child. Tex. Fam. Code § 160.307(d).
Challenge: After the rescission period has passed, a person signing the acknowledgment or denial may commence an action to challenge the acknowledgment or denial only on the basis of fraud, duress, or material mistake of fact. The proceeding may be commenced at any time before the issuance of an order affecting the child, including an order relating to support of the child. Tex. Fam. Code § 160.308(a). Before September 1, 2011, the statute provided that any challenge must be initiated within four years. The 2011 amendment applies only prospectively, and an acknowledgment that was signed before that date is subject to the four-year limitation. In re E.H.L.V., No. 09-20-00191-CV, 2022 WL 2068860, at *3 (Tex. App.—Beaumont June 9, 2022, pet. denied) (mem. op.).
Genetic testing evidence showing that the acknowledged father is not rebuttably identified as the father of the child “constitutes a material mistake of fact.” Tex. Fam. Code § 160.308(d); see In re K.N.H., No. 13-20-00347-CV, 2022 WL 243188, at *3 (Tex. App.—Corpus Christi–Edinburg Jan. 27, 2022, no pet.) (mem. op.). If the genetic testing shows that the acknowledged father is not the biological father, the court shall adjudicate him as not being the father of the child. Tex. Fam. Code § 160.631(d).
Parties and Procedures: A person who has signed an acknowledgment or denial of paternity submits to personal jurisdiction in Texas, effective on the filing of the document with the VSU, for the purposes of a suit to challenge. Tex. Fam. Code § 160.309(b). Each signatory to the acknowledgment and any related denial of paternity must be made a party to the suit to challenge. Tex. Fam. Code § 160.309(a). Support obligations and other rights and duties flowing from the acknowledgment may not be suspended during the pendency of the challenge except for good cause. Tex. Fam. Code § 160.309(c).
The proceeding to challenge “shall be conducted in the same manner as a proceeding to adjudicate parentage under Subchapter G.” Tex. Fam. Code § 160.309(d). That subchapter requires the court, based on genetic testing, presumptions, or other evidence, to adjudicate a man as being, or not being, the father of the child. See Tex. Fam. Code § 160.631.
COMMENT: It appears that the court hearing a suit to challenge must determine parentage. If the man seeking to challenge the acknowledgment is the only alleged father of the child before the court and is excluded, the adjudication would consist only of a finding that he is not the father of the child. See Tex. Fam. Code § 160.631(d). If genetic testing identifies a man as a father of the child, the court must adjudicate that man to be the father of the child. Tex. Fam. Code § 160.631(c).
§ 54.9Caption; Contents of Petition
The petition and all other documents in the proceeding shall be entitled “In the Interest of __________, a Child.” Tex. Fam. Code § 102.008(a).
COMMENT: A suit under UIFSA is not a suit affecting the parent-child relationship but still should be styled “In the Interest of __________, a Child” because it is a suit under Family Code title 5. A suit to challenge an acknowledgment or denial of paternity is also a title 5 suit.
The Family Code specifies the minimum contents of a petition in a suit affecting the parent-child relationship. See Tex. Fam. Code § 102.008(b). See section 40.5 in this manual.
If the suit is filed under Family Code chapter 159, the pleadings and accompanying documents must substantially conform to the requirements of UIFSA, and federally promulgated forms are commonly used. See Tex. Fam. Code § 159.311. See section 43.39 in this manual.
For special pleading requirements relating to challenge of an acknowledgment of paternity, or suit to set aside a prior order based on a statement of paternity, see section 54.8 above.
The first numbered paragraph of the petition must include an allegation of the intended discovery level. Tex. R. Civ. P. 190.1.
If the parentage action includes child custody as an issue and any party to the proceeding resides outside Texas, the first pleading by each party must also contain, either in the body of the pleading or in an attached affidavit, information concerning the child’s present and past residences, potential parties, prior litigation, and other matters relating to the status of the child. See Tex. Fam. Code § 152.209. See chapter 40 of this manual.
If the parentage action includes a proceeding in which periodic payments of child support are ordered or modified or a suit in which medical support must be established, modified, or clarified or is a proceeding under UIFSA, the parties must provide in the pleading or a separate statement required health insurance and dental insurance information. See Tex. Fam. Code §§ 154.181, 154.1815. See section 40.5 in this manual.
The petition must state whether, in regard to a party to the proceeding or a child of a party to the proceeding, there is in effect a protective order under Family Code title 4, a protective order under subchapter A, chapter 7B, of the Code of Criminal Procedure, or an order for emergency protection under article 17.292 of the Code of Criminal Procedure. The petition also must state whether an application for any of these orders is pending. The petitioner must attach a copy of each such protective order in which a party to the proceeding or the child of a party to the proceeding was the applicant or victim of the conduct alleged in the application or order and the other party was the respondent or defendant of an action regarding the conduct alleged in the application or order without regard to the date of the order. If a copy of the order is not available at the time of filing, the petition must state that a copy will be filed with the court before any hearing. Tex. Fam. Code § 160.6035. The Title IV-D agency is exempt from this petition requirement. Tex. Fam. Code § 160.6035(c).
If the parentage action is also a suit affecting the parent-child relationship, the parties may agree to conduct the proceedings under collaborative law procedures. See Tex. Fam. Code § 15.053. For further information on collaborative law agreements and procedures, see chapter 15 of this manual.
§ 54.11Persons Entitled to Service of Process; Citation
The only necessary parties to a proceeding to adjudicate parentage are the mother of the child and a man whose paternity of the child is to be adjudicated. Tex. Fam. Code § 160.603. A suit to adjudicate parentage initiated after the death of the putative father may not be maintained, because the putative father cannot be served and, therefore, the trial court lacks personal jurisdiction over him. In re Dart, 648 S.W.3d 652 (Tex. App.—Waco 2022, pet. filed).
If the suit seeks to challenge an acknowledgment or denial of paternity, then each signatory to the acknowledgment and any related denial of paternity must be made a party. Tex. Fam. Code § 160.309(a). Citation must be served on other individuals and agencies entitled to notice, under provisions applicable to any “joined” proceeding. For example, in a suit affecting the parent-child relationship, those entitled to service of citation are—
1.a managing conservator;
2.a possessory conservator;
3.a person having possession of or access to the child under an order;
4.a person required by law or by order to provide for the support of the child;
5.a guardian of the person of the child;
6.a guardian of the estate of the child;
7.each parent as to whom the parent-child relationship has not been terminated or process has not been waived under Family Code chapter 161;
8.an alleged father, unless there is attached to the petition an affidavit of waiver of interest in a child executed by the alleged father as provided by Family Code chapter 161 or unless the petitioner has complied with the provisions of Family Code section 161.002(b)(2), (b)(3), or (b)(4);
9.a man who has filed a notice of intent to claim paternity as provided by Family Code chapter 160;
10.the Department of Family and Protective Services, if the petition requests that the department be appointed as managing conservator of the child;
11.the title IV-D agency, if the petition requests the termination of the parent-child relationship and support rights have been assigned to the title IV-D agency under Family Code chapter 231;
12.a prospective adoptive parent to whom standing has been conferred under Family Code section 102.0035; and
13.a person designated as the managing conservator in a revoked or unrevoked affidavit of relinquishment under Family Code chapter 161 or to whom consent to adoption has been given in writing under Family Code chapter 162.
Estates Code requirements for service or notice depend on the nature of the proceeding and of the interested parties.
(a) Except as provided by Subsection (b), a person is not required to be cited or otherwise given notice except in a situation in which this title expressly provides for citation or the giving of notice.
(b) If this title does not expressly provide for citation or the issuance or return of notice in a probate matter, the court may require that notice be given. A court that requires that notice be given may prescribe the form and manner of service of the notice and the return of service.
Tex. Est. Code § 51.001(a), (b).
Waiver of Service: A party may waive service after the suit is filed by filing a waiver acknowledging receipt of a copy of the citation. The waiver may not be signed using a digitized signature. The waiver must contain the party’s mailing address, and it must be sworn before a notary public who is not an attorney in the suit unless the party waiving is incarcerated. The Texas Rules of Civil Procedure do not apply to these waivers. Tex. Fam. Code § 102.0091.
UPA does not grant jurisdiction but provides that a court with jurisdiction to hear a suit affecting the parent-child relationship or to adjudicate parentage under another law is authorized to adjudicate parentage under Family Code chapter 160. Tex. Fam. Code § 160.104.
UPA may, however, restrict jurisdiction in some circumstances. UPA provides that an individual may not be adjudicated to be a parent unless the court has personal jurisdiction over the individual. Tex. Fam. Code § 160.604(a). This provision does not answer the question of whether the court must have personal jurisdiction over an individual before adjudicating an individual not to be the parent. Custody, visitation, and termination of parental rights have historically been viewed as status-based adjudications, not requiring personal jurisdiction over an absent parent or alleged father, although due process requires notice and an opportunity to be heard. See, e.g., Tex. Fam. Code § 152.201 (“home state of the child” determines jurisdiction of custody court, without regard to personal jurisdiction over parents); see also In re Calderon-Garza, 81 S.W.3d 899, 903–04 (Tex. App.—El Paso 2002, orig. proceeding) (Texas court held to have home-state jurisdiction in paternity proceeding involving child born in El Paso and removed out of state at two months). UPA prevails only if it conflicts with another statute “and the conflict cannot be reconciled.” Tex. Fam. Code § 160.002. The status-based jurisdiction of the Uniform Child Custody Jurisdiction and Enforcement Act can be reconciled with UPA by limiting the UPA restriction to its exact words. That is, an individual may not be adjudicated to be a parent absent personal jurisdiction, but an individual may be adjudicated not to be a parent on the basis of status jurisdiction over the child.
The commissioners’ comment to UPA section 604 does not incorporate this view. UPA empowers the court to adjudicate parentage with an order binding on individuals over whom the court has personal jurisdiction, even if the court lacks jurisdiction over another party. Tex. Fam. Code § 160.604(c). With respect to this provision, the commissioners observed that a parentage order binding a mother and alleged father before the court “may not technically bind the husband (presumed father), but more than likely it will end litigation on the subject.” The comment to UPA section 604 (Nat’l Conf. of Comm’rs on Unif. State Laws, Jan. 5, 2001) is available at www.uniformlaws.org/Act.aspx?title=Parentage%20Act%20(2017).
UPA provides that a presumption of paternity may be rebutted by genetic testing results “identifying another man as the father of the child.” Tex. Fam. Code § 160.631(b). Even a child not made a party to or represented in the suit is bound by an adjudication “based on a finding consistent with the results of genetic testing.” Tex. Fam. Code § 160.637(b)(2). Given the availability of genetic testing, it seems unnecessary to eliminate the power of the court to adjudicate nonpaternity based on status jurisdiction. This issue will, however, remain open until resolved by the courts or the legislature.
Jurisdiction of the court is also restricted in a parentage suit under Family Code chapter 159. The court has subject-matter jurisdiction to determine parentage and support issues, but custody proceedings may not be joined to a parentage action brought under that chapter. See Tex. Fam. Code §§ 159.305(b), 160.610(b). An out-of-state petitioner has immunity from personal jurisdiction and service of process while in Texas to participate in the UIFSA proceeding. Tex. Fam. Code § 159.314. See chapter 43 of this manual.
COMMENT: Since there is some room for dispute on the effect of UPA’s personal jurisdiction requirement in child custody or termination suits, the best practice whenever possible is to establish personal jurisdiction over nonresident parties in any suit adjudicating parentage.
UPA adopts the long-arm provisions of UIFSA. Tex. Fam. Code § 160.604(b). Thus, the court has personal jurisdiction over a nonresident individual if—
1.the individual is personally served with citation in Texas;
2.the individual submits to the jurisdiction of Texas by consent, by entering a general appearance, or by filing a responsive document having the effect of waiving any contest to personal jurisdiction;
3.the individual resided with the child in Texas;
4.the individual resided in Texas and provided prenatal expenses or support for the child;
5.the child resides in Texas as a result of the acts or directives of the individual;
6.the individual engaged in sexual intercourse in Texas and the child may have been conceived by that act of intercourse;
7.the individual asserted parentage in the paternity registry maintained in Texas by the VSU; or
8.there is any other basis consistent with the constitutions of Texas and the United States for the exercise of personal jurisdiction.
A nonresident signatory of an acknowledgment of paternity or denial of paternity is subject to personal jurisdiction in Texas only for the purposes of a suit to challenge the acknowledgment or denial. Tex. Fam. Code § 160.309(b). Thus, for example, if the signatory is adjudicated to be the father in the course of the proceeding to challenge, he is not automatically subject to the court’s jurisdiction for the purpose of setting child support. Texas does, however, claim personal jurisdiction for all purposes over an individual who registers with the paternity registry as a possible father of the child. Tex. Fam. Code § 159.201(a)(7). Thus, under a strict reading of these two provisions, an out-of-state father who registered as a possible father in the paternity registry could be brought into a Texas court for parentage and child support establishment, but a father who took the much more drastic step of completing an acknowledgment of paternity swearing he was the father could challenge the court’s jurisdiction to set support in the challenge proceeding. If the acknowledged father is the petitioner in the challenge proceeding, his request for affirmative relief may subject him to the court’s jurisdiction. In the absence of some other basis for long-arm jurisdiction, however, the court could not establish a support order against an out-of-state acknowledged father on petition to challenge by the mother.
An original suit shall be filed in the county in which the child resides unless another court has continuing, exclusive jurisdiction under Family Code chapter 155 or venue is fixed in a suit for dissolution of a marriage under Family Code chapter 6. Tex. Fam. Code § 103.001(a). A child is presumed to reside where the child’s parent resides, but there are several exceptions. See Tex. Fam. Code § 103.001(c).
If all parties and children reside in Texas and venue was improper in the court in which the original suit was filed, the court must transfer the proceeding on timely motion. Tex. Fam. Code § 103.002(a). If no child resides in Texas and the suit is filed under Family Code chapter 159 (UIFSA), the court must transfer the suit to the county of residence of the respondent. Tex. Fam. Code § 103.003(a). If the child resides in Texas, or two parties reside in Texas, the court must transfer the case to the court of continuing, exclusive jurisdiction or the county of residence of the child. Tex. Fam. Code § 103.003(b).
Transfer of venue is governed by the procedures for transfer in Family Code chapter 155. Tex. Fam. Code §§ 103.002(c), 103.003(c). See chapter 42 of this manual.
The Family Code recognizes that the need to establish or rebut parentage may arise in many different situations and has adopted an expansive approach to standing. A proceeding to adjudicate parentage may be maintained by—
1.the child;
2.the mother of the child;
3.a man whose paternity of the child is to be adjudicated;
4.the support enforcement agency or another governmental agency authorized by other law;
5.an authorized adoption agency or licensed child-placing agency;
6.a representative authorized by law to act for an individual who would otherwise be entitled to maintain a proceeding but who is deceased, is incapacitated, or is a minor;
7.a person related within the second degree by consanguinity to the mother of the child, if the mother is deceased; or
8.a person who is an intended parent.
Tex. Fam. Code § 160.602(a). See also In re K.B.D., No. 09-18-00277-CV, 2020 WL 4354941, at *6 (Tex. App.—Beaumont July 30, 2020, pet. denied) (mem. op.) (man alleging he is putative biological father has right to join SAPCR action with proceeding to adjudicate parentage).
After a child having no presumed, acknowledged, or adjudicated father becomes an adult, a proceeding to adjudicate parentage may be maintained only by the adult child. Tex. Fam. Code § 160.602(b). But see Gribble v. Layton, 389 S.W.3d 882, 888 (Tex. App.—Houston [14th Dist.] 2012, pet. denied) (mentally disabled adult child not precluded from maintaining action to determine parentage through court-appointed guardian).
An individual may have standing to bring a parentage action but still have genetic testing denied on equitable principles or be barred by limitations. See sections 54.16 and 54.17 below.
In In re A.E.R., No. 11-19-00269-CV, 2021 WL 2470323, at *4 (Tex. App.—Eastland June 17, 2021, no pet.) (mem. op.), a man seeking to establish paternity failed to prevail on an equitable estoppel claim that he was the child’s father when he always knew he was not the child’s biological father and never received any misinformation about that fact. Although he was listed on the child’s birth certificate, he lived with the child for almost three years, and the child had his surname, the court was correct in ordering genetic testing and entering an order denying his paternity based on the results of the testing.
The issue of whether a sperm donor in assisted reproduction has standing to bring a parentage proceeding has thus far resulted in two opposing opinions by Texas courts. In a 2005 case in which an unmarried man provided sperm for the impregnation of an unmarried woman, the court determined that UPA, in section 160.602(a)(3), confers standing on “a man whose paternity of the child is to be adjudicated.” The man’s status as sperm donor was, therefore, a matter to be decided at the merits stage of the proceeding and not as a threshold issue of standing. See In re Sullivan, 157 S.W.3d 911 (Tex. App.—Houston [14th Dist.] 2005, orig. proceeding [mand. denied]). A completely opposite position was taken in a 2006 case—again involving an unmarried man and an unmarried woman—with the court’s holding that a sperm donor, by definition, was not “an alleged father,” and only “a man alleging himself to be the father of a child” could bring a parentage action under UPA (citing Family Code sections 101.0015 and 102.003(a)(8)). See In re H.C.S., 219 S.W.3d 33 (Tex. App.—San Antonio 2006, no pet.). However, in 2007 the legislature amended UPA by adding section 160.7031, under which an unmarried man is deemed the father of a child resulting from assisted reproduction if the man provides sperm to an unmarried woman with the intent to be the child’s father. To achieve this end the donor must provide the sperm to a licensed physician, and the consent of the man to be the father must be in a record signed by both the man and the woman and kept by the physician. Tex. Fam. Code § 160.7031. Without the formal agreement between the unmarried man and unmarried woman and observance of the procedures laid out in the new statute, the issues raised in the two above-cited cases are left to the judgment of the court. Even though the Family Code provides that a “donor” is not a “parent,” status as a donor does not negate standing on other grounds. In re E.Y.H., No. 09-18-00305-CV, 2019 WL 6755594, at *3–4 (Tex. App.—Beaumont Dec. 12, 2019, pet. struck) (mem. op.). There are multiple categories of nonparents on whom the Family Code confers standing.
A person cannot rely on a court order changing his gender identity to male to confer standing to adjudicate parentage as “a man whose paternity of the child is to be adjudicated.” In re Sandoval, No. 04-15-00244-CV, 2016 WL 353010 (Tex. App.—San Antonio Jan. 27, 2016, orig. proceeding) (mem. op.). Family Code section 160.602(a)(8), which allows a proceeding to be brought by an “intended parent,” pertains to a proceeding brought by a man alleged or claiming to be the father of the child and does not confer standing on the girlfriend of a mother whose child was produced through artificial insemination. In re N.M.B., No. 04-18-000111-CV, 2018 WL 6516120, at *2 (Tex. App.—San Antonio Dec. 12, 2018, pet. denied) (mem. op.).
§ 54.16Denial of Parental Presumption
“Denial of paternity” was at one time available only to the husband. The Texas Equal Rights Amendment eliminated that restriction, so a wife could also deny the husband’s paternity, and the Family Code was amended to permit either spouse to deny the presumption. Children have been allowed to rebut the presumption in order to establish the paternity and support obligation of the true father. In 1994, the supreme court established a constitutional right in Texas for a self-alleged father to deny the paternity of the husband of his paramour under limited circumstances. In re J.W.T., 872 S.W.2d 189, 195 (Tex. 1994). With the passage of the UPA, an alleged father clearly has the right to bring an action to adjudicate parentage of a child having a presumed father, although it must be filed by the child’s fourth birthday except in limited situations. Tex. Fam. Code § 160.607. See Ugwu v. Ugwu, No. 03-18-00705-CV, 2019 WL 6336181, at *3 (Tex. App.—Austin Nov. 27, 2019, no pet.) (mem. op.) (discussing exception to four-year bar if father has mistaken belief that he is biological father, based on misrepresentations by mother).
In fact, the UPA makes no distinction between the biological parent and the presumed father or other litigants with respect to standing or limitations. See section 54.15 above and section 54.17 below.
One remaining distinction between the various possible litigants provides some additional protections for a child. In In re J.A.C., No. 05-15-00554-CV, 2016 WL 3854215 (Tex. App.—Dallas July 13, 2016, no pet.) (mem. op.), fourteen-year-old twins were found to have standing to adjudicate parentage and, under Family Code section 160.637(b), were not bound by previous determination of parentage in divorce decrees. There was no evidence that the twins were parties to or represented in the divorce proceedings and no evidence of an acknowledgment of paternity, genetic testing, or formal adjudication of parentage.
If a child has a presumed, acknowledged, or adjudicated father, the results of genetic testing are inadmissible to adjudicate parentage unless performed (1) with the consent of both the mother and the presumed, acknowledged, or adjudicated father or (2) pursuant to a court order. Tex. Fam. Code § 160.621(c); see In re A.M.S., No. 13-19-00290-CV, 2021 WL 2231250, at *6 (Tex. App.—Corpus Christi–Edinburg June 3, 2021, no pet.) (mem. op.).
The statutory scheme assumes that the paternity of a presumed father not only may but must be rebutted in the same suit that seeks to establish paternity of a biological father. Paternity of a child having a presumed father may be disproved either by genetic tests that exclude the presumed father or by tests identifying another man as the father. Tex. Fam. Code § 160.631(b). The presumption may also be rebutted by the filing of a valid denial of paternity by the presumed father together with a valid acknowledgment of paternity by another person with the VSU. See Tex. Fam. Code § 160.204(b)(2).
Denial of Testing: Even if the proceeding is timely, the trial court may deny genetic testing if the court finds, by clear and convincing evidence, 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. Tex. Fam. Code § 160.608(a), (d); see In re C.M.H.G., No. 02-12-00074-CV, 2014 WL 1096011 (Tex. App.—Fort Worth Mar. 20, 2014, no pet.) (per curiam) (mem. op.) (Tex. Fam. Code § 160.608 codifies paternity by estoppel and allows court to deny motion for genetic testing if conduct of deceased mother estops grandmother from denying acknowledged father’s parentage).
The elements of estoppel in a parentage case are (1) a false representation or concealment of material facts, (2) made with knowledge, actual or constructive, of those facts, (3) to a party without knowledge or the means of knowledge of those facts, (4) with the intention it be acted on, and (5) reliance on the misrepresentation, to his prejudice, by the party to whom it was made. See Stamper v. Knox, 254 S.W.3d 537 (Tex. App.—Houston [1st Dist.] 2008, no pet.). If genetic testing is denied, the court must issue an order adjudicating the presumed father to be the father of the child. Tex. Fam. Code § 160.608(e).
There is no longer a limitation on the right of any person with an interest in the matter to seek to establish parentage if the child does not have an acknowledged, presumed, or adjudicated father. Adults are subject to limitations, generally set at four years, on efforts to establish or rebut a parent-child relationship under UPA if there is a presumed or acknowledged father. The child has a broader right than adults to maintain a suit for parentage in some circumstances.
No Limitation on Initial Parentage Determination: A suit to establish parentage of a child having no presumed, acknowledged, or adjudicated father may be brought at any time including before the birth of the child or after the child becomes an adult. See Tex. Fam. Code §§ 160.606, 160.611(a). Only the adult child has standing to maintain the suit after emancipation. See Tex. Fam. Code § 160.602(b). Equitable estoppel has been applied to bar a mother in the course of a custody battle from litigating a four-year-old child’s parentage after the child had bonded with putative father. See In re Shockley, 123 S.W.3d 642, 652–53 (Tex. App.—El Paso 2003, no pet.) (mother’s insistence that putative father was only possible father, refusal of biological father’s request for genetic testing, answering parentage suit by putative father with admission that he was father, and waiting more than four years “until custody litigation loomed on the horizon” before consenting to DNA testing that showed another man to be biological father equitably estopped her from litigating child’s parentage in suit by putative father to establish himself as parent of child).
Limitation on Contest of Acknowledged Parentage: An individual who has signed an acknowledgment or denial of paternity may rescind the agreement without stating a reason, by filing a completed rescission form with the VSU within sixty days after the effective date of the acknowledgment or denial or before the date a proceeding to which the signatory is a party is initiated to adjudicate “an issue relating to the child,” whichever is earlier. Tex. Fam. Code § 160.307(a), (b).
If the sixty-day period passes or a proceeding is initiated before the filing of a rescission, an individual who has signed an acknowledgment or denial of paternity may file an action to challenge the acknowledgment or denial only on the basis of fraud, duress, or material mistake of fact. The proceeding may be commenced at any time before the issuance of an order affecting the child, including an order relating to support. Tex. Fam. Code § 160.308(a). As noted above, evidence that the acknowledged father is not rebuttably identified as the father by genetic testing is evidence of a “material mistake of fact” for purposes of setting aside the acknowledgment. Tex. Fam. Code § 160.308(d).
The parties to the acknowledgment are subject to personal jurisdiction in Texas for purposes of the suit to challenge, and if genetic testing, conducted as a result of the suit to challenge, shows the alleged or the presumed father who signed the acknowledgment or denial to be the genetic father of the child, the court hearing the contest shall adjudicate the father’s paternity. Tex. Fam. Code §§ 160.309(b), 160.631(c).
Limitation on Contest of Presumed Parentage: A proceeding to adjudicate the parentage of a child having a presumed father must be brought within four years after the birth of the child unless the presumed father and the mother of the child did not live together or engage in sexual intercourse with each other during the probable time of conception or the presumed father was precluded from bringing a proceeding within the four-year period because of the mistaken belief that he was the child’s biological father based on misrepresentations that led him to that conclusion. Tex. Fam. Code § 160.607; see In re K.M.T., 415 S.W.3d 573 (Tex. App.—Texarkana 2013, no pet.) (paternity suit filed by alleged father four years and six days after birth of child barred where elements of equitable estoppel not established). The four-year limitation is not unconstitutional, as there is no fundamental right of an alleged father to establish paternity when a child has a presumed father. In re J.C., 594 S.W.3d 466, 477 (Tex. App.—Fort Worth 2019, no pet.). See also In re L.M.R., 644 S.W.3d 783, 791 (Tex. App.—Corpus Christi–Edinburg 2022, no pet.) (holding that the four-year limitation does not unconstitutionally burden an alleged father’s Fourteenth Amendment rights).
UPA allows the alleged father up to four years in which to assert his claim. However, a party in a paternity action may be equitably estopped from relying on an otherwise applicable statutory bar to recovery. The application of estoppel in paternity actions is aimed at achieving fairness as between the parents by holding both the mother and father to their prior conduct regarding the paternity of the child. Quiroz v. Gray, 441 S.W.3d 588 (Tex. App.—El Paso 2014, no pet.) (although father filed suit to establish paternity more than four years after child’s birth, mother and presumed father are equitably estopped from relying on Code section 160.607(a)’s statute of limitations defense). But see Tex. Fam. Code § 160.608(a) (estoppel), § 160.637(d) (adjudication may be a defense in a subsequent suit by an individual not a party to the earlier proceeding), § 160.637(e) (a party to an adjudication may challenge the adjudication only by appeal or other judicial review).
Limitation on Husband’s Dispute of Paternity If Child Is Result of Assisted Reproduction: If a husband provides sperm for assisted reproduction by his wife in accordance with Family Code subchapter H, chapter 160, he is the father of a resulting child. Tex. Fam. Code § 160.703. If the marriage is dissolved or the husband dies before the placement of eggs, sperm, or embryos, then the husband is not a parent of the resulting child unless he has consented, in a record kept by a licensed physician, that the placement take place after his death or the dissolution of the marriage. See Tex. Fam. Code §§ 160.706, 160.707. If a husband consents to assisted reproduction by his wife, he is the father of the resulting child. Tex. Fam. Code § 160.703. However, in one pre-UPA case, the court held that genetic testing is irrelevant in an assisted reproduction case, but that the wife is entitled to contest the husband’s claim that he ratified the assisted reproduction. In re Marriage of M.C., 65 S.W.3d 188, 192–93 (Tex. App.—Amarillo 2001, no pet.). A husband who did not consent to the assisted reproduction before or after the birth of the child may commence a parentage action within four years after learning of the birth of the child. Tex. Fam. Code § 160.705(a). The four-year limitation period does not apply if the husband did not provide sperm for or consent to the assisted reproduction, did not cohabit with the mother of the child since the probable time of assisted reproduction, and never openly treated the child as his own. Tex. Fam. Code § 160.705(b). If there is an established relationship between the presumed father and the child, the trial court may deny genetic testing and adjudicate the presumed father as the father of the child. See Tex. Fam. Code § 160.608. Since the suit is a “parentage action” under UPA, a husband whose sperm was used in the assisted reproduction will be identified as the genetic father and adjudicated as the father. Tex. Fam. Code § 160.631(c).
Limitation on Third-Party Challenge to Adjudication or Acknowledgment: An individual, other than the child, who was not a party to the acknowledgment or an adjudication of parentage must commence a proceeding to challenge the acknowledgment or order within four years after the effective date of the acknowledgment or adjudication, or the suit will be barred by limitations. Tex. Fam. Code § 160.609(b); see In re R.A.H., 130 S.W.3d 68 (Tex. 2004).
However, the child or other party may be able to argue estoppel based on the conduct of the mother or presumed father and that it would be inequitable to disprove the father-child relationship. Tex. Fam. Code § 160.608(a); see also Hausman v. Hausman, 199 S.W.3d 38 (Tex. App.—San Antonio 2006, no pet.) (presumed father in divorce proceeding excluded by genetic testing as biological father, but mother equitably estopped from denying his paternity); In re Shockley, 123 S.W.3d 642.
In addition, the prior adjudication may be a “defense” to the subsequent suit by the third party—presumably meaning that, if the prior judgment is interposed as a defense, the third party would have to show at least a lack of actual notice, in addition to simply meeting the four-year limitation. Tex. Fam. Code § 160.637(d).
§ 54.18Adjudication as Defense to Suit
A determination of parentage may be a defense to a subsequent proceeding seeking to adjudicate parentage brought by an individual, other than the child, who was not a party to the prior suit. Tex. Fam. Code § 160.637(b), (d). A prior determination of parentage may be a defense to a subsequent parentage action brought by a child only if (1) the determination was based on an unrescinded acknowledgment of paternity that is consistent with genetic testing results, (2) the adjudication was based on a finding consistent with genetic testing results and the consistency is declared in the determination or otherwise shown, or (3) the child was a party or represented by an attorney ad litem in the prior proceeding. Tex. Fam. Code § 160.637(b). It should be noted that the prior adjudication is not a bar to the suit, only an affirmative defense to the proceeding.
UPA may not be entirely consistent with the result reached by the supreme court applying former Family Code section 160.007, if that case is considered to turn on the definition of “alleged father” under prior law. See Texas Department of Protective & Regulatory Services v. Sherry, 46 S.W.3d 857 (Tex. 2001). The Sherry case has been criticized for implying that a father could be barred from ever claiming parentage by the simple expedient of obtaining a paternity decree against a known nonfather without notice to the actual father. Under UPA, the definition of “alleged father” includes a self-alleged father. See Tex. Fam. Code § 101.0015(a). The trial court may issue an order adjudicating paternity on default only if the alleged father is “found by the court to be the father.” Tex. Fam. Code § 160.634. Thus, an alleged father claiming to have been deceived and who was not served with notice of a suit to establish parentage will continue to have a remedy. Cf. In re K.M.S., 68 S.W.3d 61 (Tex. App.—Dallas 2001, pet. denied) (paternity order obtained without notice to man claiming to be father could be set aside by bill of review). However, the result in Sherry would arguably be the same under UPA. The child was born on January 7, 1992. A man named Cannon was listed on the child’s birth certificate as the father, resided with the child and the mother for approximately three years, and sometime in 1993 was adjudicated to be the father of the child. Cannon died in 1995, and the child’s mother died in May 1998, at which time Sherry came forward claiming to be the child’s biological father. Sherry, 46 S.W.3d at 859–60. Cannon’s actions in holding out the child as his own created at that time, and would create under the 2003 amendments to the Texas version of UPA, a presumption of parentage. See Tex. Fam. Code § 160.204(a)(5) (during first two years of child’s life, he continuously resided in household in which child resided and he represented to others that child was his own). Sherry’s suit would be barred by limitations four years after the birth of the child under these facts. See Tex. Fam. Code § 160.607. Furthermore, his suit would be barred by the four-year statute of limitations on a nonparty’s suit to set aside a parentage order, which ran from the date of the paternity order in 1993 and expired some time in 1997. See Tex. Fam. Code § 160.609(b).
A decree of divorce is considered to be an adjudication of parentage if the final order (1) expressly identifies the child as “a child of the marriage” or “issue of the marriage” or uses similar words indicating that the husband is the father of the child or (2) provides for the payment of child support for the child by the husband unless paternity is specifically disclaimed in the order. Tex. Fam. Code § 160.637(c).
A child is not bound by the determination of parentage in a divorce decree unless the child was a party to the proceeding or represented by an attorney ad litem or one of the other exceptions in Code section 160.637(b) applies. See Tex. Fam. Code § 160.637(b); see also In re J.W., 97 S.W.3d 818, 823 n.9 (Tex. App.—Dallas 2003, pet. denied) (child not bound by prior paternity proceeding where his interests not adequately represented).
§ 54.19Representation of Child
The child is not a necessary party to a parentage suit but may be made a party. Tex. Fam. Code § 160.612(a). If the child is a minor or is incapacitated and is made a party to the suit, the court must appoint an amicus attorney or attorney ad litem for the child. Tex. Fam. Code § 160.612(b). The court must also appoint an amicus attorney or attorney ad litem for a child who is not made a party to the proceeding if the court finds that the interests of the child are not adequately represented. Tex. Fam. Code § 160.612(b). UPA requires the court to appoint an amicus attorney or attorney ad litem for the child if there is a request to deny a motion for genetic testing. Tex. Fam. Code § 160.608(c). Chapter 107 of the Family Code also provides that, in a suit in which the best interests of a child are at issue, other than a suit filed by a governmental entity requesting termination of the parent-child relationship or appointment of the entity as conservator of the child, the court may appoint an amicus attorney, an attorney ad litem, or a guardian ad litem. Tex. Fam. Code § 107.021(a).
The child is bound by a parentage adjudication if (1) the determination was based on an unrescinded acknowledgment of paternity and the acknowledgment is consistent with the results of genetic testing, (2) the adjudication of parentage was based on a finding consistent with the results of genetic testing and the consistency is declared in the determination or is otherwise shown, or (3) the child was a party or was represented in the proceeding determining parentage by an attorney ad litem. Tex. Fam. Code § 160.637(b). In other words, the child is not bound by an adjudication of paternity unless parentage was established in accordance with genetic test results or the child had an attorney ad litem in the suit.
The powers and duties of court-appointed representatives are set out in Family Code chapter 107. See chapter 13 of this manual for more detailed information about court-appointed representatives.
§ 54.20Voluntary or Court-Ordered Testing
Provisions for genetic testing are set out in Family Code, subchapter F, chapter 160. These provisions govern testing whether it is done voluntarily, by court order, or by order of a support enforcement agency. Tex. Fam. Code § 160.501.
The court must order genetic testing if requested to do so by a party to the proceeding. Tex. Fam. Code § 160.502(a). There are, however, some restrictions on the right of a party to get court-ordered genetic testing, as discussed below. There is no longer a requirement that the court order genetic testing before making an adjudication of parentage. Agreed orders, orders entered for failure to submit to genetic testing, or orders on default are authorized. See Tex. Fam. Code §§ 160.622, 160.623, 160.634. UPA is, however, inconsistent on this point, at least with respect to a child having a presumed, acknowledged, or adjudicated father, since it provides that the paternity of a child having a presumed, acknowledged, or adjudicated father may be disproved only by genetic testing. See Tex. Fam. Code § 160.631(b). Genetic testing may also be used to establish or rebut the presumed biological relationship of the birth mother and the child. Tex. Fam. Code § 160.106.
If a court does order genetic testing, the order for genetic testing is enforceable by contempt. In addition, if an individual whose paternity is being determined—that is, an alleged father or a presumed father seeking to rebut the presumption—refuses to submit to genetic testing as ordered by the court, the court may adjudicate parentage contrary to the position of that party. Tex. Fam. Code § 160.622(a), (b). See In re L.A.V., No. 04-19-00203-CV, 2020 WL 2044636, at *3 (Tex. App.—San Antonio Apr. 29, 2020, no pet.) (mem. op.).
Testing of the mother is not a prerequisite to testing the child and the man whose paternity is being determined. If the mother is unavailable or declines to submit to genetic testing, the court may order the testing of the child and each man whose paternity is being adjudicated. Tex. Fam. Code § 160.622(c). However, the provisions relating to the determination of paternity also apply to a determination of maternity. Tex. Fam. Code § 160.106. Presumably, if the mother was the party denying her relationship to the child or denying that the alleged father was the father of the child, the court could adjudicate either paternity or maternity contrary to her position if she failed to submit to genetic testing.
There is no statutory right to counsel under the genetic testing provisions of the Texas Family Code. Wynn v. Johnson, 200 S.W.3d 830 (Tex. App.—Texarkana 2006, no pet.).
Genetic testing must be of a type reasonably relied on by experts in the field of genetic testing and must be performed in a properly accredited testing laboratory. Tex. Fam. Code § 160.503(a).
The specimen used for testing may consist of one or more samples of blood, buccal cells, bone, hair, or other body tissue or fluid. The specimen used in the testing is not required to be of the same kind for each individual undergoing genetic testing. Tex. Fam. Code § 160.503(b).
A court shall order the child and “other designated individuals” to submit to genetic testing if requested to do so by a party. Tex. Fam. Code § 160.502(a). UPA specifically permits genetic testing on a deceased individual. Tex. Fam. Code § 160.509. It also permits testing of various relatives of the missing father if the court “finds that the need for genetic testing outweighs the legitimate interests of the individual sought to be tested.” See Tex. Fam. Code § 160.508.
If a child has two or more alleged or presumed fathers, the parties may agree or the court may order testing of each man concurrently or sequentially. Tex. Fam. Code § 160.502(c).
§ 54.24Standard and Effect of Genetic Testing
To create a rebuttable presumption of paternity, the genetic testing must disclose that the man has (1) at least a 99 percent probability of paternity, using a prior probability of 0.5, as calculated by using the combined paternity index obtained in the testing and (2) a combined paternity index of at least 100 to 1. Tex. Fam. Code § 160.505(a). The presumption created by genetic testing can be rebutted only by other genetic testing that excludes the man as a genetic father of the child or identifies another man as the possible father of the child. Tex. Fam. Code § 160.505(b). Conflicts in the genetic testing results should be resolved by further genetic testing. See Tex. Fam. Code § 160.505(c). The court may rely on nongenetic evidence to rebut the presumption only in the case of identical brothers. See Tex. Fam. Code § 160.510. A similar rule would presumably apply if the case involved identical sisters. See Tex. Fam. Code § 160.106.
Costs of testing must be advanced by the support enforcement agency providing services in the case, by the person requesting the tests, as agreed by the parties, or as ordered by the court. Tex. Fam. Code § 160.506(a). If the support enforcement agency advances the costs, the agency may seek reimbursement from the identified father. Tex. Fam. Code § 160.506(b). A man contesting the original tests that determined him to be the father must advance the costs if he demands additional testing. See Tex. Fam. Code § 160.507.
A party objecting to the laboratory’s choice of racial or ethnic group for statistical calculations relating to the probability of paternity may, within thirty days after receiving the report, require the testing laboratory to recalculate the probability of paternity using an ethnic or racial group different from that used by the laboratory. The individual objecting to the testing laboratory’s initial choice shall, (1) if the frequencies are not available to the testing laboratory for the ethnic or racial group requested, provide the requested frequencies compiled in a manner recognized by accrediting bodies or (2) engage another testing laboratory to perform the calculations. Tex. Fam. Code § 160.503(c)(1), (c)(2).
§ 54.25Pretrial Hearing; Temporary Orders
There is no requirement in UPA that the court hold a pretrial hearing. The court shall render a temporary order for child support for a child if the order is appropriate and the individual ordered to pay child support is (1) a presumed father of the child, (2) petitioning to have his paternity adjudicated, (3) identified as the father through genetic testing, (4) an alleged father who has declined to submit to genetic testing, (5) shown by clear and convincing evidence to be the father of the child, or (6) the mother of the child. Tex. Fam. Code § 160.624(a).
A temporary order may include provisions for possession or access, and presumably other matters that are properly joined, but only if permitted by other law. Tex. Fam. Code § 160.624(b).
There is no specific statutory requirement of a preferential setting in parentage cases. The trial court may grant a motion for preferential setting filed by a party, the amicus attorney, or the attorney ad litem for the child and give precedence to that hearing over other civil cases if the delay caused by ordinary scheduling practices will unreasonably affect the best interest of the child. Tex. Fam. Code § 105.004.
If a child has a presumed, acknowledged, or adjudicated father, the results of genetic testing are inadmissible to adjudicate parentage unless performed (1) with the consent of both the mother and the presumed, acknowledged, or adjudicated father or (2) under an order of the court. Tex. Fam. Code § 160.621(c).
The report of a genetic testing expert is self-authenticating and admissible in evidence if signed under penalty of perjury. See Tex. Fam. Code § 160.504(a).
In addition, the records are admissible for chain-of-custody purposes if the documentation includes (1) the name and photograph of each individual whose specimens have been taken, (2) the name of each individual who collected the specimens, (3) the places in which the specimens were collected and the date of each collection, (4) the name of each individual who received the specimens in the testing laboratory, and (5) the dates the specimens were received. Tex. Fam. Code § 160.504(b).
Copies of bills for genetic testing and for prenatal and postnatal health care for the mother and child that are furnished to the adverse party on or before the tenth day before the date of a hearing are admissible to establish the amount of the charges billed and that the charges were reasonable, necessary, and customary. Tex. Fam. Code § 160.621(d).
A party objecting to the results of genetic testing may call one or more genetic testing experts to testify in person or by telephone, videoconference, deposition, or another method approved by the court. Unless otherwise ordered by the court, the party offering the testimony bears the expense for the expert testifying. Tex. Fam. Code § 160.621(b).
COMMENT: There is no longer a hearsay objection to the admissibility of the bills for health care and for genetic testing if copies are furnished at least ten days before the trial. It is not the apparent purpose of the statute to prevent the introduction of controverting evidence, only to avoid the necessity of live testimony or a business records affidavit to authenticate the record and prove the charges are reasonable, necessary, and customary.
The court shall adjudicate paternity of a child without a jury. Tex. Fam. Code § 160.632; see also Tex. Fam. Code § 105.002(b)(2).
At the conclusion of the case, the court shall render an order adjudicating whether a man alleged or claiming to be the father is the parent of the child. Tex. Fam. Code § 160.636(a).
Dismissal with Prejudice Prohibited: A dismissal for want of prosecution can be only without prejudice; a dismissal that purports to be with prejudice is void and has the effect of a dismissal without prejudice. Tex. Fam. Code § 160.635.
Default Order or Order on Admission of Alleged Father: If the respondent defaults and is found by the court to be the father, the court shall issue an order adjudicating his paternity. Tex. Fam. Code § 160.634. The court shall render an order adjudicating paternity based on an admission by the alleged father only if (1) the man has filed a pleading admitting paternity or admitted paternity under penalty of perjury when making an appearance or during a hearing and (2) the court finds that there is no reason to question the admission. Tex. Fam. Code § 160.623.
Order on Exclusion: If genetic testing excludes the man from the possibility of being the father of the child, the man shall be adjudicated as not being the father of the child. Tex. Fam. Code § 160.631(d). A properly conducted blood test positively excluding the man has been judicially found to be clear and convincing evidence of nonpaternity. See Murdock v. Murdock, 811 S.W.2d 557, 560 (Tex. 1991).
Order on Positive Tests: If the court finds that the genetic tests identify the alleged father as the child’s father, the court shall adjudicate the man as being the father of the child. Tex. Fam. Code § 160.631(c).
Order If Child Has Presumed, Acknowledged, or Adjudicated Father: If paternity of a child is to be disproved, the order must be based on genetic tests excluding the presumed, acknowledged, or adjudicated father as the father of the child or identifying another man as the father of the child. Tex. Fam. Code § 160.631(b).
Order Relating to Child: An order adjudicating parentage must identify the child by name and date of birth. Tex. Fam. Code § 160.636(b). On request of a party and for good cause shown, the court may order that the name of the child be changed. Tex. Fam. Code § 160.636(e); see In re A.L.J., No. 06-19-00027-CV, 2019 WL 5779782, at *4 (Tex. App.—Texarkana Nov. 6, 2019, pet. denied) (mem. op.) (discussing factors court may consider in making best-interest determination regarding name change); Anderson v. Dainard, 478 S.W.3d 147, 153 (Tex. App.—Houston [1st Dist.] 2015, no pet.) (no abuse of discretion in changing child’s last name when best-interest evidence “mixed”); In re M.C.F., 121 S.W.3d 891 (Tex. App.—Fort Worth 2003, no pet.) (reversing finding that name change was in child’s best interest). If the order of the court is at variance with the child’s birth certificate, the court shall order the VSU to issue an amended birth record. Tex. Fam. Code § 160.636(f).
Order Relating to Challenge of Acknowledgment or Denial of Paternity: The court shall order the VSU to amend the birth certificate “if appropriate” at the conclusion of a proceeding to challenge an acknowledgment or denial of paternity. Tex. Fam. Code § 160.309(e).
Child Support: On a finding of parentage, the court may order retroactive child support as provided by Family Code chapter 154 and, on a proper showing, order a party to pay an equitable portion of all the prenatal and postnatal health-care expenses of the mother and the child. Tex. Fam. Code § 160.636(g). In rendering an order for retroactive child support, the court shall use the child support guidelines provided by chapter 154, together with any relevant factors. Tex. Fam. Code § 160.636(h). See chapter 9 of this manual.
COMMENT: A suit to establish parentage is an original suit affecting the parent-child relationship and is governed by many of the same Family Code provisions that are relevant to custody actions in the context of a divorce or otherwise. Review the discussion in chapter 40 of this manual before proceeding with a temporary hearing or final trial to ensure that all applicable statutes are followed, such as Code section 153.603, which requires a parenting plan in the final order. (The parenting plan requirements do not apply to proceedings in a title IV-D case relating to the determination of parentage. Tex. Fam. Code § 153.611.)
§ 54.30Attorney’s Fees and Costs
The court may assess filing fees, reasonable attorney’s fees, fees for genetic testing, other costs, and necessary travel and other reasonable expenses. Attorney’s fees awarded by the court may be paid directly to the attorney, and the attorney may enforce the order in the attorney’s own name. However, the court may not assess fees, costs, or expenses against the support enforcement agency of Texas or another state, except as provided by other law. Tex. Fam. Code § 160.636(c), (d).
The following persons are also entitled to reasonable fees and expenses in an amount set by the court and ordered to be paid by one or more parties to the suit: (1) an attorney appointed as an amicus attorney or as an attorney ad litem for the child and (2) a professional who holds a relevant professional license and who is appointed as guardian ad litem for the child, other than a volunteer advocate. Tex. Fam. Code § 107.023(a). The court may determine that fees awarded to an amicus attorney, an attorney ad litem for the child, or a guardian ad litem for the child are necessaries for the benefit of the child. Tex. Fam. Code § 107.023(d).
A family court is not required to state good cause for adjudging costs against the successful party as is required in other civil cases. Goheen v. Koester, 794 S.W.2d 830, 835–36 (Tex. App.—Dallas 1990, writ denied).
If the parent-child relationship between a decedent and a child has not previously been established or terminated, the probate court may determine parentage for the purpose of inheritance. See Tex. Est. Code §§ 201.051, 201.052. Proof of paternity under the Estates Code must be made “by clear and convincing evidence.” Tex. Est. Code § 201.052(d).
The Family Code does not address the standard of proof but mandates that parentage be “adjudicated”—
1.on the basis of an admission of paternity if “there is no reason to question the admission” (Tex. Fam. Code § 160.623(b));
2.on the basis of a presumption if there is a presumed father and genetic testing is denied (Tex. Fam. Code § 160.608(e)); and
3.on the basis of genetic testing results, if they meet the statutory standard and are not rebutted by other results of genetic testing (Tex. Fam. Code § 160.631(c)).
Whether UPA, which now governs in probate proceedings, prevails over the “clear and convincing evidence” standard in the Estates Code is yet to be determined. See Tex. Fam. Code §§ 160.002, 160.103(a).
The Estates Code provides that the probate court may declare that a parent of a child under eighteen years of age may not inherit from or through the child on a finding by clear and convincing evidence of certain facts that substantially mirror several of the grounds for termination of the parent-child relationship in Family Code section 161.001; these grounds involve abandonment, failure to support, or responsibility for death or serious injury of a child. See Tex. Est. Code § 201.062.
On a determination of paternity, the petitioner must provide the clerk of the court in which the order was rendered the information necessary to prepare the report of determination of paternity. (The report is section 4 of the VSU form entitled “Information on Suit Affecting the Family Relationship,” which is reproduced as form 56-18 in this manual.) The clerk must prepare the report immediately after the order becomes final and forward it to the state registrar. Tex. Fam. Code § 108.008.
The state registrar will substitute a new birth certificate for the original based on the order. The new certificate may not show that the parent-child relationship was established after the child’s birth but may show the child’s actual place and date of birth. Tex. Fam. Code § 108.009.
Although it does not create a presumption of paternity, a man may register to be notified of a proceeding for adoption or termination of parental rights regarding a child he may have fathered by filing a “registration for notification” with the VSU before, or within thirty-one days after, the birth of the child. Tex. Fam. Code § 160.402(a). The mother is not entitled to notice of the registration unless she has provided an address to the VSU. Tex. Fam. Code § 160.412(a).
Registration with the paternity registry entitles the registrant to notice of a proceeding for termination or adoption with respect to the child, but it does not “commence a proceeding to establish paternity.” Tex. Fam. Code § 160.411(3). The registration may be used against the registrant as an admission in a suit to establish paternity. Tex. Fam. Code § 160.411(4). However, the registrant may rescind his registration at any time. Tex. Fam. Code § 160.414. The registration simply identifies a child the man “may have fathered.” Tex. Fam. Code § 160.402(a).
The paternity registry may be a source for service information on a self-alleged father and probably should be searched as a precaution against a subsequent claim of parentage by a nonparty to the parentage action. See In re K.M.S., 68 S.W.3d 61 (Tex. App.—Dallas 2001, pet. denied) (paternity order set aside by bill of review when notice was not given to man claiming to be father). A man who registers subjects himself to long-arm jurisdiction. Tex. Fam. Code § 159.201(a)(7).
No fee may be charged for filing or rescinding a registration. A fee for processing a search or furnishing a certificate concerning the search may be charged, except to a support enforcement agency. Tex. Fam. Code § 160.416. A support enforcement agency includes the office of the attorney general, domestic relations offices, and the Department of Family and Protective Services. See Tex. Fam. Code § 160.102(17).
Failure to register may facilitate the termination of the father’s parental rights by allowing termination without notice. Tex. Fam. Code § 160.404; In re O.L.R.M., No. 04-13-00681-CV, 2014 WL 2548349 (Tex. App.—San Antonio June 4, 2014, no pet.) (mem. op.) (alleged father had no standing to file suit to adjudicate paternity of adopted infant child when he failed to register with paternity registry before birth of child or by thirty-first day after child was born). See chapter 50 of this manual.
A “gestational” mother is a woman who gives birth to a child pursuant to an agreement that she will not have a mother-child relationship with that child. See Tex. Fam. Code §§ 160.751, 160.754. The Texas Family Code authorizes an agreement between a woman and the intended parents of a child in which the woman relinquishes all rights as a parent of a child conceived by means of assisted reproduction and that provides that the intended parents become the parents of the child. See Tex. Fam. Code § 160.752(a).
Parties and Prerequisites: A gestational agreement must be in writing and agreed to by the gestational mother, her husband if she is married, and each donor (egg or sperm donor) other than the intended parents. Tex. Fam. Code § 160.754(a)(2). The agreement must also be agreed to by the intended parents, who must be married to each other. Tex. Fam. Code § 160.754(b).
The gestational mother’s eggs may not be used in the assisted reproduction procedure. Tex. Fam. Code § 160.754(c). A gestational agreement may not be used if the child is conceived by means of sexual intercourse. Tex. Fam. Code § 160.754(f).
Medical Issues and Disclosures: The gestational agreement must state that the physician who will perform the assisted reproduction procedure has informed the parties to the agreement of (1) the rate of successful conceptions and births attributable to the procedure, including the most recent published outcome statistics of the procedure at the facility at which it will be performed; (2) the potential for and risks associated with the implantation of multiple embryos and consequent multiple births resulting from the procedure; (3) the nature of and expenses related to the procedure; (4) the health risks associated with, as applicable, fertility drugs used in the procedure, egg retrieval procedures, and egg or embryo transfer procedures; and (5) reasonably foreseeable psychological effects resulting from the procedure. Tex. Fam. Code § 160.754(d).
In addition, a court may not validate an agreement unless “the prospective gestational mother has had at least one previous pregnancy and delivery and carrying another pregnancy to term and giving birth to another child would not pose an unreasonable risk to the child’s health or the physical or mental health of the prospective gestational mother.” Tex. Fam. Code § 160.756(b)(5). The medical evidence must also show “that the intended mother is unable to carry a pregnancy to term and give birth to the child or is unable to carry the pregnancy to term and give birth to the child without unreasonable risk to her physical or mental health or to the health of the unborn child” as a prerequisite to validation of the agreement by the court. Tex. Fam. Code § 160.756(b)(2).
Time for Executing Agreement: The agreement must be signed at least fifteen days before the implantation of eggs, sperm, or embryos to the gestational mother. Tex. Fam. Code § 160.754(e).
Gestational Mother’s Right to Make Health-Care Decisions: A gestational agreement may not limit the right of the gestational mother to make decisions to safeguard her health or the health of an embryo. Tex. Fam. Code § 160.754(g).
Validation Requirement: A gestational agreement must be validated by a court before the birth of the child, or it is unenforceable; if the agreement is unenforceable, the gestational mother becomes the presumed parent on birth of the child. See Tex. Fam. Code § 160.762(a), (b).
Effect of Failure to Validate: A party who is an intended parent under an agreement that has not been validated may be held liable for the support of a child born under the agreement even if the agreement is otherwise unenforceable. Tex. Fam. Code § 160.762(c). The intended parent party to an unenforceable gestational agreement may also be required to pay the gestational mother’s costs relating to the agreement and all her costs and attorney’s fees incurred to enforce her right to support and reimbursement. Tex. Fam. Code § 160.762(d).
Petition to Validate Gestational Agreement: A petition to validate a gestational agreement may be filed if (1) the prospective gestational mother or the intended parents have resided in Texas for the ninety days preceding the date the proceeding is commenced; (2) the prospective gestational mother’s husband, if she is married, is joined as a party to the proceeding; and (3) a copy of the gestational agreement is attached to the petition. Tex. Fam. Code § 160.755(b). Intended parents have standing to maintain the suit. Tex. Fam. Code § 160.602(a)(8). The gestational agreement statute contains no venue provision; however, personal jurisdiction over the parties is required. See Tex. Fam. Code § 160.756(b)(1).
Hearing on Petition to Validate Agreement: The court may validate a gestational agreement only if the court finds (1) the parties have submitted to the jurisdiction of the court under the jurisdictional standards of UPA; (2) the medical evidence provided shows that the intended mother is unable to carry a pregnancy to term and give birth to the child or is unable to carry the pregnancy to term and give birth to the child without unreasonable risk to her physical or mental health or to the health of the unborn child; (3) unless waived by the court, an agency or other person has conducted a home study of the intended parents and has determined that the intended parents meet the standards of fitness applicable to adoptive parents; (4) each party to the agreement has voluntarily entered into and understands the terms of the agreement; (5) the prospective gestational mother has had at least one previous pregnancy and delivery and carrying another pregnancy to term and giving birth to another child would not pose an unreasonable risk to the child’s health or the physical or mental health of the prospective gestational mother; and (6) the parties have adequately provided for which party is responsible for all reasonable health-care expenses associated with the pregnancy, including providing for who is responsible for those expenses if the agreement is terminated. Tex. Fam. Code § 160.756(b).
Order Validating Agreement: If the court finds that the requirements of Family Code section 160.756(b) have been met, the court may render an order validating the gestational agreement and declaring that the intended parents under the agreement will be the parents of a child born under the agreement. Tex. Fam. Code § 160.756(c). If a gestational mother marries after the rendition of an order validating the agreement (1) the validity of the agreement is not affected, (2) the husband’s consent is not required, and (3) the husband is not a presumed father of the child born under terms of the validated agreement. Tex. Fam. Code § 160.761.
Termination of Gestational Agreement: Before the gestational mother becomes pregnant by means of assisted reproduction, the gestational mother, her husband if she is married, or either intended parent may terminate a validated agreement by giving written notice of the termination to each other party to the agreement. Notice of the termination of the agreement must also be filed with the court. On receipt of the notice of termination of the agreement, the court must vacate the order validating the agreement. A prospective gestational mother and her husband are not liable to the intended parents for termination of the agreement if proper notice is given in accordance with Family Code section 160.759. Tex. Fam. Code § 160.759.
The statute does not address potential liability of the intended parents to the gestational mother, if the intended parents terminate the agreement.
Confirmation of Intended Parents after Birth of Child: The intended parents are required to file a notice of birth with the court not later than the three-hundredth day after the date assisted reproduction occurred. After receiving the notice of birth, the court shall render an order that confirms that the intended parents are the child’s parents, requires the gestational mother to surrender the child to the intended parents, if necessary, and requires the vital statistics unit to issue a birth certificate naming the intended parents as the child’s parents. If a person alleges that the child born to the gestational mother did not result from assisted reproduction, the court must order parentage testing to determine the child’s parentage. If the intended parents fail to file the required notice of birth, the gestational mother or an appropriate state agency may do so, and on a showing that an order validating the gestational agreement was properly rendered the court shall order that the intended parents are the child’s parents and are financially responsible for the child. Tex. Fam. Code § 160.760.
Court’s Jurisdiction: Except as theoretically limited by the jurisdictional provision of the Uniform Child Custody Jurisdiction and Enforcement Act, the court validating a gestational agreement has continuing, exclusive jurisdiction of all matters arising out of the gestational agreement until the child is 180 days of age. See Tex. Fam. Code § 160.758.
Access to Records: Records relating to the validation of gestational agreements “are subject to inspection under the same standards of confidentiality that apply to an adoption under the laws of this state.” Tex. Fam. Code § 160.757. Presumably, the intended parents would stand in the shoes of adoptive parents under chapter 162 of the Family Code for the purpose of this statute.
Irrebuttable Presumption Resulting from Gestational Birth: The parent-child relationship established by gestational agreement is akin to adoption. The mother-child relationship exists between the intended mother and the child on confirmation by the court “notwithstanding any other” law and “regardless of the fact that the gestational mother gave birth to the child.” Tex. Fam. Code § 160.753(a). The father-child relationship exists between the intended father and the child on confirmation by the court of his parentage under the gestational agreement. Tex. Fam. Code § 160.753(b).
Reporting Requirement: Health-care facilities are required to make statistical reports to the Texas Department of Health of the number of assisted reproduction procedures under a gestational agreement performed during the year and the number and current status of embryos created through such procedures but not implanted. Tex. Fam. Code § 160.763. This requirement places no additional requirements on the parties to the agreements or their attorneys.
The following websites contain information relating to the topic of this chapter:
Attorney general’s Acknowledgement of Paternity (AOP) Certification Training (§ 54.5)
www.texasattorneygeneral.gov/cs/acknowledgment-of-paternity-aop-certification-training
Attorney general’s instructions regarding AOP form (§ 54.5)
www.texasattorneygeneral.gov/cs/aop-certified-entities
Uniform Parentage Act as approved by NCCUSL (§ 54.12)
www.uniformlaws.org/Act.aspx?title=Parentage%20Act%20(2017)