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Mistaken Paternity

Mistaken Paternity

For years, so-called “fathers” who have belatedly discovered that their wives or girlfriends had made a mistake and that the so-called “father” has been paying child support for a child that they was not, in fact, their own genetic or biological child have been put in the awkward position of paying child-support for a child not their own. Many men have been told that the child their wife or girlfriend gave birth to was their genetic or biological offspring, when, in reality, there was another father, the true genetic or biological father. Under the law, until now, some of the men paying child support pursuant to a court order had no way out of paying even if they could prove that they were NOT the genetic or biological father. However, now that has changed for some payers of child support.

Texas Senate Bill 785, the “mistaken paternity” bill, was passed by the Texas Legislature on May 13, 2011 and signed by the Governor. The law went into effect immediately. This new law marks a significant and necessary departure from the State’s historic policy in these matters. The bill represents the State’s recognition that technological change demanded a re-evaluation of our laws, even though the issues were of the most sensitive nature. The fact is: The certainty of modern DNA testing allows and demands a sharper calibration of justice. The bill also contains a careful balancing of interests and good procedures for resolving cases in the day-to-day world in which the courts deliver services and justice to Texans.

If you are a man who is ordered by a court to pay child support for a child that is not genetically or biologically your offspring, you might be able to terminate your relationship with the child and cease paying further child support. This is an important right that will mean hundreds of thousands of dollars for some men. You might also STILL have the right to visit with the child!! This new law does not apply to men who adopted the child, entered into a gestational agreement or who became the father through assisted reproduction to which he consented or who otherwise were aware through genetic testing that they were not the father or otherwise consented to become the father with knowledge that the child was not his genetic child.

The order terminating the parent-child relationship between the paying “father” and the child must be based on the results of genetic testing that excludes the paying “father” as the child’s genetic, or biological, father.

If you are such a man, paying child support for a child not your own, you may file a lawsuit for termination of the parent-child relationship between yourself and the child. HOWEVER, be aware that there is a time limit. You must file within one year of the date on which you learn that you are not the genetic or biological father. If you already know that you are not the genetic father but could not have filed before now because of the law, you need to file immediately. Depending on when you discovered that you are not the genetic father, you might have to file before September 1, 2012. You cannot wait. You need to act immediately. Also, you will likely NOT get a refund for the money you have already paid as child support. Check with a lawyer in order to protect your rights and to discuss your particular situation.

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Robert Reid McInvale
Attorney at Law

Robert Reid McInvale is an experienced family law attorney with a comprehensive practice in Houston. He provides dedicated and strong advocacy for his clients, helping them with all the issues surrounding their divorce, separation, child custody, and other marriage and family matters. Attorney McInvale—Reid to clients and friends—seemed destined for a law career. Born while his father was attending Emory University Law School, Reid grew up in Manchester, GA. His father was the city attorney for many years, as well as head of the Manchester Chamber of Commerce. It is in the family blood to become lawyers and help people get justice. U.S. Supreme Court Chief Justice John Marshall is part of the McInvale family tree.

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