Are You Still Responsible for Arrears on a Child That’s Proven Not Yours

My question involves child support in the State of: Texas

DNA test proves my husband NOT the father of a child he's never met and that he pays child support for. The baby momma went to the Texas OAG in August 2008 and ask for child support and back time from when the child was born in 2004. So that’s a whopping $12,000 for a child that’s not his!!! OAG websites states under the mistaken paternity section on the FAQ’s page, that the NON-dad is still responsible for arrears. How is that possible? Why would he be responsible for a child that's not his and somebody else’s???? To top that off if they find the real dad, that man doesn't have to pay back time! How is this right...even ethical? My husband was never served from the beginning and already living in another state in August 2008 and didn't have money for a lawyer at the time. All the OAG does to notify the non-custodial parents is sending out notification of the mediation meeting through the mail. According to the OAG if you don’t go to the mediation, a court date is set. But my husband was never even served! We only found out about the order when we were visiting in late September when we received a copy of the final order. So when we moved back to Texas in May 2011 we got a lawyer and got DNA request filed with the court which was granted and DNA results were 0%. Why the non-dad responsible for arrears and not the baby momma for paternity fraud for signing an affidavit stating she only had sex with him and only him, in front of a notary. Maybe I might be reading something wrong but my husband was never married to her and hasn’t had a relationship with the child. Her family didn’t want him around the baby so he just gave her what she wanted. They both should’ve done something legally at the time but it’s done. But can someone help me out here.

how was he originally determined to be the father? The court does not impose child support on a man that has either not accepted paternity by signing an affidavit of paternity, is the husband of the mother, has had a DNA test to prove paternity, or has failed to defend himself when sued for paternity.

He didn't go to court. So that in the state of Texas is considered father by default. There's an affidavit at the end of the order signed by the mother and a notary saying she only had sex with him-- that's what makes him dad and him not going to court. The front page is the served page and my husband’s section is BLANK. Meaning he never was served.

If he was never served, he needs to have the ruling set aside due to defective service.

there is a huge difference between not going to court if you are served and simply never being served. While both can result in a default judgment, only the first one is enforceable.

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Quoting hbarboza4139

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He didn't go to court. So that in the state of Texas is considered father by default. There's an affidavit at the end of the order signed by the mother and a notary saying she only had sex with him-- that's what makes him dad and him not going to court. The front page is the served page and my husband’s section is BLANK. Meaning he never was served.

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Not so fast.

Dad needs to check the actual court records - and Dad needs to make sure he wasn't served by publication.

AND if this took place in 2008, the court might want to know why it's taken so long to act.

And while I know this is frustrating and emotional for you, could you please explain this?

You said:

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My husband was never served from the beginning and already living in another state in August 2008 and didn't have money for a lawyer at the time.

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If he was never served, why would he have needed an attorney at the time? In other words - why would it have even been an issue?

He was in Louisiana therefore he was never actually served. It's on the first page of the order. He wasn't served or the section would've been filled in. He found out after the fact when he received the final order at his dads house. But now that he's not the father why or is he responsible for arrears?

...he received the final order at his Dad's house?

Why would they have his Dad's address? Is it possible that he was actually served there and it's simply an omission in the form your husband has?

To answer your last question though, he is the legal father - there comes a point where biology no longer matters. Same answer regarding arrears.

I mean after the fact... when we were in Louisiana that's when we couldn't afford a lawyer. We tried to get a lawyer in the beginning of 2009 just to do the DNA test but it didn't happen due the hours he was working and other issues. Yes it should’ve got taken care of sooner but we were in different state 10 hours away from where the child resided. Guess we really thought the kid was his. I thought the kid really looked like him. But there still was some doubt just because there wasn't a DNA test done at the beginning. So when we moved back home we got the lawyer and started the process. Our lawyer said that we might have to fight the arrears but he shouldn't be responsible. Just came to the forum to see if anybody has seen or gone through a similar situation.

According to the order there's an information sheet where a case worker conducted research to gather information on the father. They got the address and income information from the employer.

Has your attorney actually indicated that disestablishing paternity is possible at this point?

The question of child support and arrears will - and I know you and Dad don't want to read this, and I wouldn't either - be moot if he cannot disestablish his legal paternity.

The question of service might not be an issue any longer.

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Quoting hbarboza4139

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He was in Louisiana therefore he was never actually served. It's on the first page of the order. He wasn't served or the section would've been filled in. He found out after the fact when he received the final order at his dads house. But now that he's not the father why or is he responsible for arrears?

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what does living in Louisiana have to do with being served?

That makes no sense how is one responsible for something that's proven not theirs? Why isn't forgiven? I'm just confused with this system :wallbang:

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Quoting hbarboza4139

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I mean after the fact... when we were in Louisiana that's when we couldn't afford a lawyer. We tried to get a lawyer in the beginning of 2009 just to do the DNA test but it didn't happen due the hours he was working and other issues. Yes it should’ve got taken care of sooner but we were in different state 10 hours away from where the child resided. .

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yes because that delay may be the only reason you cannot have the arrears dropped.

how about a timeline

child was born in 2004

mom filed to establish paternity in 2004?

mom filed for CS in 2008

your husband was aware of the court ruling when?

he took some action with the courts to have the erroneous placement of paternity when?

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Quoting hbarboza4139

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That makes no sense how is one responsible for something that's proven not theirs? Why isn't forgiven? I'm just confused with this system :wallbang:

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Because biology isn't all there is to paternity.

What is Dad's attorney actually saying about disestablishing paternity?

The 82nd Texas Legislature amended the Texas Family Code to allow courts to terminate the parent-child relationship and the duty to pay child support in circumstances of mistaken paternity. Men who meet the requirements of the law may seek court-ordered genetic testing. If testing excludes a man as the child’s biological father, the court may terminate the parent-child relationship and the duty to pay future child support.

He met the requirments since the DNA request was granted. I'm still not understanding why and how he's still responsible for arrears. I could see if he missed payments after the order why he would be responsible. But she went in 2008 and they calculated back to 2004 why is he responsible for those years? It says in the order retroactive.. Is this even the same thing as arrears?

child was born in 2004

Neither parents did nothing for 4 years

mom filed for CS in 2008

your husband was aware of the court ruling in end of Sep 2008

he took some action with the courts to have the erroneous placement of paternity in November 2011

filed dna request with court dec 2011

mother agreed to dna test Jan 2012

Did dna test Feb 2012

0% results 2-14-12

filed results with court last friday 2-17-12

I missed something in the time line. When was paternity legally established?

the fact he waited 3 years to do anything may be the reason he will not be able to have the CS dropped. While you argue it was the mothers actions that caused CS to be erroneously imposed, it is your husbands fault for not having the CS situation corrected when he knew of it. What that means is the state did not take action to find anybody else who may be the father during that time and as such, the mother would lose child support from the rightful father due to your husbands failure to act. That is why it is just the CS remains in place.

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Quoting hbarboza4139

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The 82nd Texas Legislature amended the Texas Family Code to allow courts to terminate the parent-child relationship and the duty to pay child support in circumstances of mistaken paternity. Men who meet the requirements of the law may seek court-ordered genetic testing. If testing excludes a man as the child’s biological father, the court may terminate the parent-child relationship and the duty to pay future child support.

He met the requirments since the DNA request was granted. I'm still not understanding why and how he's still responsible for arrears. I could see if he missed payments after the order why he would be responsible. But she went in 2008 and they calculated back to 2004 why is he responsible for those years? It says in the order retroactive.. Is this even the same thing as arrears?

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Two things.

First - look at the wording. It says the court MAY. It doesn't say the court SHALL or WILL. In other words - the court doesn't have to do anything at all.

Second - Retro isn't the same as arrears. Retro support is support granted for a period BEFORE the parent actually files.

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child was born in 2004

Neither parents did nothing for 4 years

mom filed for CS in 2008

your husband was aware of the court ruling in end of Sep 2008

he took some action with the courts to have the erroneous placement of paternity in November 2011

filed dna request with court dec 2011

mother agreed to dna test Jan 2012

Did dna test Feb 2012

0% results 2-14-12

filed results with court last friday 2-17-12

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Wait, you mean this only got filed on Friday?

Hon - seriously - what do you want to happen over a holiday weekend?

Nobody here can predict which way the court will rule - it can go either way.

The ATTORNEY is the person your husband needs to be talking to. But as jk said, there's at least a decent change that the court won't find it in the child's best interest to disestablish paternity at this point.

State of Texas says you have 4 years from when a man is declared the father to contest paternity if there wasn't a DNA test done. New bill starting sep 2012 they just passed states that they have 1 year to request termination of child support after they find out they're not the father.

So it's retro because she waited until 2008 to file? Arrears is when he misses any payments AFTER the order?

It's retro because for whatever reason (it looks like Mom requested that support go back to the child's birth), it was ordered back to 2004. Yes, he builds up arrears the very second he doesn't make a payment - and unfortunately (for him and many other parents), when retro support is ordered the paying parent is in arrears virtually from the get-go unless they start saving money the very second they're served and pay the entire amount as soon as the order is put in place.

OP, I think there's something important that you're missing here. Just because the statute allows for paternity to be challenged, this does NOT mean that the court MUST allow such a challenge nor does it mean the court MUST rule in favor of the legal father even if DNA proves that he's not the biological father.

This is VERY important.

Well once this is over with I'll let y'all know the outcome.