Texas Divorce Attorney Blog
Texas family law presumes a husband is the father of his wife’s children born during the marriage. A presumed father may challenge paternity, but he generally must do so by the child’s fourth birthday. Adjudication of the paternity of a child with a presumed father may occur later, however, if a court finds the presumed father did not live with or have sexual intercourse with the mother when the child was conceived or if misrepresentations led the presumed father to a mistaken belief he was the biological father. Tex. Fam. Code § 160.607.
A husband recently challenged a trial court order including a child as a child of the marriage after he presented evidence of a DNA test showing he was not the father. The daughter was born in 2004 and the son in 2012. In 2013, the husband obtained a paternity test confirming he was not the daughter’s biological father. He filed for divorce in 2017. In his petition, he listed both children as “children of the marriage” and sought the right to designate their primary residence. He sought child support and medical support from the wife for both children. The wife also sought child support, medical support, and the right to designate primary residence.
Each spouse alleged the other had been unfaithful. The husband presented the DNA test results to support his allegation. When his attorney asked if he was asking the court to say that the daughter was not his child, he indicated he was not and agreed he accepted parental responsibility for her. He indicated the purpose of admitting the paternity test was not to deny paternity, but to show that his wife had been unfaithful. Both parents testified the girl had not been told she was not the husband’s biological child.
The father testified that he had a strong relationship with the daughter. He testified he was concerned the paternity test could jeopardize her immigration status if it was used for any purpose other than as evidence of infidelity. His attorney stated in closing argument they only mentioned the paternity test as evidence of infidelity and not to show any intent of the husband to deny or abdicate paternity.
The trial court ordered the husband and wife to be joint managing conservators, with the wife having exclusive right to designate their primary residence. The husband was ordered to pay child support. The husband appealed, arguing the court should not have listed the daughter as one of the “children of the marriage” after he presented the paternity test showing he was not her biological father.
On appeal, the husband argued admission of the genetic test required the court to adjudicate him as not the father. He cited Tex. Fam. Code § 160.631(d), which states, “Unless the results of genetic testing are admitted to rebut other results of genetic testing, a man excluded as the father of a child by genetic testing shall be adjudicated as not being the father of the child.” He argued that misrepresentations led him to the mistaken belief he was the child’s biological father so he was not time barred from asking for adjudication as not being the child’s father, even though the child’s fourth birthday had passed.
The trial court, however, found the husband “had doubts about his paternity” in 2008, before her fourth birthday. The record included a letter written by the father in 2008 in which he expressed intent to get a paternity test because he had doubts about the child’s paternity.
The appeals court pointed out that the husband had expressly requested the court only consider the test as evidence of the wife’s infidelity and expressly asked the court not to consider it in a manner that would affect his relationship with his daughter. Generally, a party cannot ask a trial court to do something, then argue on appeal that the court erred in granting the request. The appeals court found, therefore, that the husband could not now argue that the trial court erred in not adjudicating him as not the father when he had expressly asked the court to only consider the paternity test as evidence of infidelity. The court affirmed the trial court’s order.
This case illustrates the principal that a party cannot argue a court erred in giving him what he requested. It is likely, however, he would have been time barred in seeking the adjudication if he had done so at the trial court level. If a presumed father intends to challenge paternity, he should do so within four years of the child’s birth. If you are facing a paternity issue, an experienced Texas family law attorney can advise you on your rights and help you pursue the appropriate course of action. Set up an appointment with McClure Law Group by calling 214.692.8200.