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  1. #1

    Default Statute of Limitations On A Paternity Action in Texas

    I have a 13 year old daughter who I have raised and supported entirely by myself. I am currently facing additional financial support for my mother who is in poor health. Consequently I have initiated a paternity action against "G", the man I believe to be her biological daughter. It's a long story (in which I truly am not the "bad guy"), but here are the facts. 11/91 I married "H" in Texas and we moved to Boston. 2/92 I left "H" and returned to Texas intending to file divorce when I could afford it. 5/92 "H" briefly came to Texas to unsuccessfully attempt reconciliation, then "H" returned to Boston. 7/4/92 I met "G" in a bar and we had unprotected sex. 7/5/92 I met "T" in the same bar and we had sex, but took precautions to prevent pregnancy. I did not engage in any sex again for at least three years after the birth of my daughter 3/25/93. There is no doubt that her conception occurred on the weekend of 7/4/92, so her possible father can only be "G" or "T" with "G" being more probable. "G" was made aware of this probability prior to her birth. I was never able to inform "T" and only know his first name.

    "H" and I filed a joint petition for divorce in Massachusetts in 9/92 which was granted by the court 12/92 with full disclosure of my pregnancy and admission that "H" was not the father. All divorce documentation indicates that we stopped living together in 2/92. No one is named as father on my daughter's birth certificate and she and I legally use my maiden last name. No one has ever acknowledged nor been adjudicated as my daughter's father. Neither I nor "H" have ever considered him to be her father nor has he ever held himself out to be such...in fact he's never even met her.

    "G" is now very wealthy. "G"'s attorney is attempting to exempt him from the paternity action by using the Texas statute that limits a paternity action to 4 years from birth when there is a presumed father. I believe the same statute also excludes this case from the statute limitation because "H" and I were not living together at the time of conception. (In fact, we filed the joint petition in Massachusetts because Texas would not allow divorce until the child was born, despite our mutual agreement that "H" was not the father). The TAG office moves very slowly, and is still in the assessment stage of the process but has indicated they probably agree with me.

    My questions are: Which position do you agree with? Do you believe "H"'s visit in 5/92 can be used to "G"'s advantage in forever excusing himself from any obligation to my daughter? If I am successful in obtaining an order for paternity testing, and it is found to exclude "G" as the father, do you believe a court would award him attorneys' fees as his attorney has threatened to demand of me? Also, since "G" has had a standing invitation to participate in my daughter's life, but has refused to do so, I don't expect him to change even if ordered to acknowledge and pay support. However, he has never disclosed the possibility of her existence to his parents or his daughter who is now 24 years old. My daughter would like to know her extended family. If a court adjudicates him as my daughter's biological father, is there anything that legally obligates him to inform his family? Can he restrain my daughter or I from contacting them? His attorney has already threatened to sue if I tell anyone at this time.

    Your opinions is very welcome.....I'd like to be able to sleep a little until this is over.

  2. #2
    Join Date
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    Default Re: Statute limitations on paternity action in Texas

    I believe the statutes at issue are these:
    Quote Quoting Texas Family Code
    ß 160.204. PRESUMPTION OF PATERNITY.
    (a) 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 bureau of vital statistics;

    (B) he is voluntarily named as the child ís father on the child ís 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 ís life, he continuously resided in the household in which the child resided and he represented to others that the child was his own.
    (b) A presumption of paternity established under this section may be rebutted only by:
    (1) an adjudication under Subchapter G; or

    (2) the filing of a valid denial of paternity by a presumed father in conjunction with the filing by another person of a valid acknowledgment of paternity as provided by Section 160.305.
    ß 160.607. TIME LIMITATION: CHILD HAVING PRESUMED FATHER.

    (a) Except as otherwise provided by Subsection (b), a proceeding brought by a presumed father, the mother, or another individual to adjudicate the parentage of a child having a presumed father shall be commenced not later than the fourth anniversary of the date of the birth of the child.

    (b) A proceeding seeking to disprove the father-child relationship between a child and the child ís presumed father may be maintained at any time if the court determines that:
    (1) 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; and

    (2) the presumed father never represented to others that the child was his own.
    It seems to me that you can probably avoid the limitations period if you are able to plead facts consistent with the boldfaced provision above.

    Also, I think you can ask the Texas Court to apply "full faith and credit" to the Massachusetts finding that the previously presumed father was in fact not the child's father. If you are not yet doing so, I suggest you work with a lawyer.

  3. #3

    Default Re: Statute limitations on paternity action in Texas

    I can definitely plead the necessary facts. Our divorce documents specifically cite the last day we lived together, which was 4 months earlier than the probable time of conception. His visit to texas was at least 10 months prior to my daughter's birth. In addition, he was consistently employed in MA in 1992 and I began working in TX within a month after returning.

    I earn a great salary for a legal secretary, and have never been on welfare or any gov aid, but I still cannot afford the $3500 retainer for a family law attorney. I'd prefer not to ask my employer for pro bono assistance, since it is not his area of specialty AND because I'd rather not air my dirty laundry at the office. Consequently, I'm forced to rely on the attorney general's office. They indicated that they may require that my ex sign a denial of paternity, which he is willing to do, but, today I began to worry about another legal complication.

    In 1992, I obtained a referral from the Boston law firm where I previously worked for a family law attorney that was formerly employed with the firm. Although she consulted with me by long distance phone calls on a regular basis, and my ex and I split her fee, she technically appeared on my ex's behalf while I was considered "pro se". We filed an uncontested joint petition for divorce. Neither she nor the court, however, ever required or discussed whether Massachusetts required a formal denial of paternity form be executed by my ex and, of course, we didn't know any better. In my google research today, it seems that Massachusetts does now require one in this circumstance. Do you know whether that is a law that went into effect after 1992? I hope so....rather than something we might have missed.

  4. #4
    Join Date
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    Default Re: Statute limitations on paternity action in Texas

    If you can provide the citation to the statute, it will be easier to check the date.

  5. #5
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    Jul 2006
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    Default Re: Statute limitations on paternity action in Texas

    You may be able to get the denial of paternity included in your MA divorce Nunc pro Tunc or file same in Texas but Jurisdiciton for your divorce would seem to be MA not TX, Is there any language such as a divorce "without children"?
    The putative father's attorney can threaten and argue many things but if you are oging through the AG office, it won't be the first time they have handled similar situations, while there is this 4 year rule it does have a big exception which seems to apply to your situation. Here is somehting to clarify some of these issues from the AG's office
    http://www.oag.state.tx.us/child/faq.shtml
    How is paternity established?
    Paternity may be established voluntarily by agreement of both the mother and the father of the child. The parents can sign an Acknowledgment of Paternity (AOP), which becomes a legal finding of paternity when it is filed with the Texas Vital Statistics Unit. If the mother or alleged father is not sure about the paternity of the child, neither should sign an AOP. Paternity should be established through the courts.
    < >

    What if the mother is married to someone else at the time of the childís birth or the baby is born within 300 days of the date of her divorce?
    If the mother is married to someone other than the biological father at the time of the childís birth or the baby is born within 300 days of her divorce from a man who is not the biological father, the man she was married to at the time of the birth must sign a Denial of Paternity. The biological father cannot become the legal father by signing the AOP until the man she was married to at the time of the childís birth signs the Denial of Paternity, which is part of the AOP form. If the Denial is not signed, either biological parent can open a case with the Attorney General or establish paternity through the courts.

    What if the mother is not sure who the father is?
    If the mother applies for services or is referred to the Child Support Division to establish paternity, she will be asked questions about men who may have fathered the child. It is very important for the mother to provide as much information as she can to help determine the fatherís identity.

    Paternity may be established even if the father is still in school or if he lives in another state.

    What if the pregnancy was unplanned?
    Texas law says that both parents are responsible for supporting their children. Just as the mother is responsible for the child even if the pregnancy was not planned, so is the father. This means that once the court determines the identity of the biological father, the man must help support his child.

    What if the father does not believe it is his child?
    He may ask for scientific paternity testing. A court will examine the results of the paternity test and then decide whether the alleged father is the biological father.

    Who pays for the paternity test?
    If the Child Support Division files the case, the Office of the Attorney General will pay for the test. If the alleged father is found to be the biological father of the child, he may be ordered to repay the cost of the test.

  6. #6

    Default Statute limitations on paternity action in Texas

    Yes, our MA divorce decree does state there are no children. The Texas AG office has told me that they will contact my ex-husband to sign a denial of paternity.

    Thanks very much for everyone's input. My final question is, once paternity is established, and child support established, I imagine that the biological father will still otherwise ignore my daughter. He may even continue to withhold information about her from his family. Can he legally prevent my daughter from trying to make contact with her paternal grandparents and her half-sister? To my knowledge, they have never known of her possible existence.
    We have no intentions of contacting his family unless and until after his paternity is established. That's the only reason I have never contacted them in the past 13 years. It is simply not my place. My daughter would not be comfortable contacting them until she has proof in hand that they are in fact her family. He has had an open invitation for 13 years to see his daughter and has refused to even acknowledge my correspondence until I informed him of the action being initated by the AG. Clearly the putative father is not a man, but a coward that believes if he ignores an obligation long enough it will simply vanish. Since he was only an acquaintance when I slept with him, I didn't know him well enough to judge what kind of man he was. This is the main reason I did not seek an order for child support when she was younger. My belief was that a man that had to be forced to be a father, would probably not be a very good one and might show resentment toward her. At least she is old enough and mature enough now to form her own opinions.

    My ex-husband would likely agree to be tested if necessary to prove that he is not her father and never had any obligation toward her. However, even if the putative father's counsel asked that my ex be tested, what would be the point if the putative father's DNA is a match? Can he demand that my ex be tested first? I realize that NOBODY is going to just take my word that conception could only have occurred on 7/4/92 or 7/5/92, but, to my knowledge, the "possible time of conception" is medically calculated as beginning on the first day of the woman's last mentrual period. In my case, and according to my obstetrical record, that would have been in mid-June 1992 a full month after my ex's brief visit to Texas. I don't see how any court would consider it reasonable to honor a putative father's demand to test an alleged presumed father when it can easily be proven that he was not even in the same state as the woman during the "possible time of conception" as specified in the statute quoted earlier in this string.

  7. #7

    Default Paternity - Texas

    After 5 hearings, we finally had our first ruling in the case this week. The first four were continued at request of alleged BF's first attorney....which he finally fired this week and retained a new one. The hearing was on Motions for Summary Judgment filed by both sides....his on the SOL defense alleging my ex-husband as a presumed father, mine on the statute exception to the SOL defense. Even though this is an Attorney General petition vs the alleged BF, I obtained pro bono counsel through the firm where I am employed to represent my interest in the case.

    My MSJ attached evidence incl Mass divorce records, affidavits by me and my ex-husband, child's birth certificate, and alleged BF's letter he dropped in my mailbox 13 years ago. His MSJ had no evidence attached.

    The Judge denied both MSJ's because she does not believe a presumption exists based upon the evidence. The Judge was inclined to order DNA testing of alleged BF, but since he argued that my ex- should be named as a party so that he has an opportunity to object to DNA testing of BF (as if he would), she instructed the AG to amend the petition accordingly so that, ultimately, any presumption can be removed.

    The supplemental petition has been filed and an Affidavit of Waiver of Interest and a Waiver of Service have been sent to my ex for his signature and return. Provided we get them back and filed with the court beforehand, the Judge will Order DNA testing at a telephonic hearing set in mid-July.

    Not sure what they expected to gain by having my ex joined as a respondent, but at least doing so will strengthen our position when he starts his appeals (which he promised to do from the get-go).

  8. #8
    Join Date
    Jul 2006
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    984

    Default Re: Statute limitations on paternity action in Texas

    Thank you for the update, what you say happened was always a possibility, one which I believe I mentioned in one of your threads due to the chronology you provided. Once the DNA is done this should finally be over.

  9. #9

    Default Re: Statute limitations on paternity action in Texas

    Quote Quoting rmet4nzkx
    View Post
    Thank you for the update, what you say happened was always a possibility, one which I believe I mentioned in one of your threads due to the chronology you provided. Once the DNA is done this should finally be over.
    Actually, no....assuming you are referring to the replies you made to the thread that were deleted by Aaron at my request. In fact, the first attorney he had was the one who had printed out this thread before the deletions and she made such a mess of things that he fired her and hired the present one two days before the hearing where the Judge disagreed with him and ruled that there is no presumption.

    I hope you are right that this will be done when DNA is over...however, when he still had the first attorney, they threatened to appeal if they lost.

  10. #10

    Default Update - Texas Paternity Action

    DNA results are in. He is her father. Next hearing is in September.

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