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  1. #1
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    Jul 2019
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    Question Disputing Paternity of Child Born Within Marriage in Another State

    My questions involve a child custody case from the State of: originally Texas, but the child and custodial parent now reside in Florida, and we don't reside in either of those states now.

    My husband's first marriage ended when he found out that his wife was having an affair. In the resulting fallout, he ended up homeless and unemployed, and as such, when she filed for divorce, he did not have a lawyer. Within the marriage, a child was born, and my husband believes that the child is the son of the man with whom his wife was having the affair. Even though my husband states that he was homeless and unemployed, Texas decided that he needed to pay child support for the child born within the marriage. My husband does not have a relationship with the child of any kind.

    So now that we're in a position to hire a lawyer, we want to know if this child for whom we are providing support is my husband's biological child. If he is not, we want to get the order for support terminated. If he is, we want to establish visitation so that we can get to know the child and he can get to know his father, stepmother, and siblings. This is confusing and complicated for us because the order was established in Texas as part of the divorce, and the ex and the child now live in Florida. Would we contact Florida to request a paternity test, or would it have to go through Texas first, since that was where the order was first established? In addition, because the child support order was established as a part of the divorce decree, how would we even be able to request a paternity test to determine whether or not my husband is the child's father? If he is not the child's father, what steps can we take to terminate the support order? If he is, how would we go about requesting visitation so we can get to know this child?

    Thanks for your help!

  2. #2
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    Default Re: Disputing Paternity of Child Born Within Marriage in Another State

    Quote Quoting BrickTree79
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    My questions involve a child custody case from the State of: originally Texas, but the child and custodial parent now reside in Florida, and we don't reside in either of those states now.

    My husband's first marriage ended when he found out that his wife was having an affair. In the resulting fallout, he ended up homeless and unemployed, and as such, when she filed for divorce, he did not have a lawyer. Within the marriage, a child was born, and my husband believes that the child is the son of the man with whom his wife was having the affair. Even though my husband states that he was homeless and unemployed, Texas decided that he needed to pay child support for the child born within the marriage. My husband does not have a relationship with the child of any kind.

    So now that we're in a position to hire a lawyer, we want to know if this child for whom we are providing support is my husband's biological child. If he is not, we want to get the order for support terminated. If he is, we want to establish visitation so that we can get to know the child and he can get to know his father, stepmother, and siblings. This is confusing and complicated for us because the order was established in Texas as part of the divorce, and the ex and the child now live in Florida. Would we contact Florida to request a paternity test, or would it have to go through Texas first, since that was where the order was first established? In addition, because the child support order was established as a part of the divorce decree, how would we even be able to request a paternity test to determine whether or not my husband is the child's father? If he is not the child's father, what steps can we take to terminate the support order? If he is, how would we go about requesting visitation so we can get to know this child?

    Thanks for your help!
    No matter what your husband believes, if he did not address the child's paternity during the divorce process its too late to address it now. All he can do is establish visitation with his legal child.

  3. #3
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    Default Re: Disputing Paternity of Child Born Within Marriage in Another State

    How old is this child? This child is obviously not a newborn or infant given the history of events that have happened since he was born. No state is going to remove a father from a child or remove all support for a child years after the fact. If the child's mom ever got remarried and wanted to have the child adopted, your husband could possibly no longer be responsible for him that way. Paternity issues have to be addressed immediately, and your husband should have brought it up during the divorce. Even without an attorney, he could have said, "I do not believe this child is mine."
    Having no relationship with the child also does not affect support. Even if he's not the biological father, he never disputed it, and the state determined that he was the father by default.

  4. #4
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    Default Re: Disputing Paternity of Child Born Within Marriage in Another State

    Quote Quoting BrickTree79
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    Within the marriage, a child was born, and my husband believes that the child is the son of the man with whom his wife was having the affair. Even though my husband states that he was homeless and unemployed, Texas decided that he needed to pay child support for the child born within the marriage.
    I assume that "within the marriage" means that the child was conceived and/or born during the time that your husband and his first wife were married. Correct? How old is the child now? Did your husband ever take any steps to dispute paternity?


    Quote Quoting BrickTree79
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    So now that we're in a position to hire a lawyer, we want to know if this child for whom we are providing support is my husband's biological child. If he is not, we want to get the order for support terminated.
    It is the law in every state that a child born to a married woman is presumed to be a child of the marriage. Some states are more logical than others and make this presumption contingent on the child being conceived during the time of the marriage and/or also require that the mother and her husband be cohabitating at the time of conception. However, other states only care that the mother and her husband were married at the time of birth. Not entirely sure about Texas.

    In any event, if the woman's husband believes he is not the biological father of the child, he can dispute paternity and seek to prove or disprove paternity with a DNA test. Such an action typically needs to be taken within a very short time after the child is born (four years is the longest time I'm aware of and, again, I'm not sure about Texas law). If your husband failed to dispute paternity within the appropriate time, then, as far as the law is concerned, the child is his, regardless of DNA.


    Quote Quoting BrickTree79
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    the child now live in Florida. Would we contact Florida to request a paternity test, or would it have to go through Texas first, since that was where the order was first established?
    I'm not sure what "contact Florida" means. When did the mother and child move from Florida to Texas? Also, you wrote that you and your husband don't reside in either Florida or Texas. Where do you live now, and when did your husband leave Texas?

  5. #5
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    Default Re: Disputing Paternity of Child Born Within Marriage in Another State

    Quote Quoting pg1067
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    I assume that "within the marriage" means that the child was conceived and/or born during the time that your husband and his first wife were married. Correct? How old is the child now? Did your husband ever take any steps to dispute paternity?
    Yes. The child is 12. My husband stated he was homeless at the time of the divorce, so I'm not sure when or how he was served or if he was even served. I've never lived in Texas, so I don't know if the respondent gets served there.


    It is the law in every state that a child born to a married woman is presumed to be a child of the marriage. Some states are more logical than others and make this presumption contingent on the child being conceived during the time of the marriage and/or also require that the mother and her husband be cohabitating at the time of conception. However, other states only care that the mother and her husband were married at the time of birth. Not entirely sure about Texas.

    In any event, if the woman's husband believes he is not the biological father of the child, he can dispute paternity and seek to prove or disprove paternity with a DNA test. Such an action typically needs to be taken within a very short time after the child is born (four years is the longest time I'm aware of and, again, I'm not sure about Texas law). If your husband failed to dispute paternity within the appropriate time, then, as far as the law is concerned, the child is his, regardless of DNA.




    I'm not sure what "contact Florida" means. When did the mother and child move from Florida to Texas? Also, you wrote that you and your husband don't reside in either Florida or Texas. Where do you live now, and when did your husband leave Texas?
    My husband left Texas long before we met. He was still homeless when he moved to Missouri, which is where we live. He and his first wife were divorced in Texas, and she has since moved to Florida with her child. The only reason we know about this was because we started getting notices from the state of Florida regarding the child support, which was previously paid to Texas. I really don't know why he didn't dispute paternity at the time of the divorce, but I do know that he was homeless and couldn't afford a lawyer, so he may not have been aware of his options. I cannot speak for his choices for the time before we met and married, but I do know that we haven't been able to afford a lawyer, as he has been attending university, and I have been attending college myself, taking care of my disabled child, and working when I can. We're in a better position to afford a lawyer now, so we've been exploring our options. Even if there's nothing we can do to find out for sure whether or not the child is my husband's biologically, we still need to know which state to contact to modify the order to allow us to get to know the child through visitation.

  6. #6
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    Default Re: Disputing Paternity of Child Born Within Marriage in Another State

    Sec. 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 adjudicate the parentage of a child having a 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; or
    (2) the presumed father was precluded from commencing a proceeding to adjudicate the parentage of the child before the expiration of the time prescribed by Subsection (a) because of the mistaken belief that he was the child's biological father based on misrepresentations that led him to that conclusion.



    It appears your husband was involved with his wife at the time to believe the child could be his. That would preclude section b from applying. That means he had 4 years from the time of the birth to object to the assumption of paternity. His homelessness and such does not allow for an extension of the time. The state simply expects you to act if you believe there is reason to.


    unless the step father is willing to adopt, I believe your husband is stuck with the status quo

    while he has a right to seek visitation, do you really believe that to be in the best interest of the child? Does the child know anything about you? I know it may sound callous but maybe it would be better to not put the child in this position.


    is your husband willing and able to sustain a parenting order either from Texas or Florida (Whichever state has jurisdiction)? Is he willing and able to pay the transportation costs for the child to visit him? Is he willing and able to go to Florida for however long the courts would require so as to be able to establish some basic relationship with the child before expecting the child to go to Missouri?




  7. #7
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    Default Re: Disputing Paternity of Child Born Within Marriage in Another State

    Quote Quoting jk
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    [/SIZE]

    It appears your husband was involved with his wife at the time to believe the child could be his. That would preclude section b from applying. That means he had 4 years from the time of the birth to object to the assumption of paternity. His homelessness and such does not allow for an extension of the time. The state simply expects you to act if you believe there is reason to.


    unless the step father is willing to adopt, I believe your husband is stuck with the status quo

    while he has a right to seek visitation, do you really believe that to be in the best interest of the child? Does the child know anything about you? I know it may sound callous but maybe it would be better to not put the child in this position.


    is your husband willing and able to sustain a parenting order either from Texas or Florida (Whichever state has jurisdiction)? Is he willing and able to pay the transportation costs for the child to visit him? Is he willing and able to go to Florida for however long the courts would require so as to be able to establish some basic relationship with the child before expecting the child to go to Missouri?



    My initial reaction to this situation was very similar to yours, but there are siblings involved, and that changes things for me. I do think that dad should try to establish a relationship with his child so that the siblings can also know each other.

    I agree that its going to be tough starting things out with a 12 year old, but if its handled with care, it can benefit everyone.

  8. #8
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    Default Re: Disputing Paternity of Child Born Within Marriage in Another State

    Hopefully it works out for the op and the child. My intent was to caution against doing something that might result in hurting the child. Regardless of anything else, that child’s best interest is of the utmost importance in this situation.

  9. #9
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    Default Re: Disputing Paternity of Child Born Within Marriage in Another State

    Quote Quoting BrickTree79
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    Yes. The child is 12. My husband stated he was homeless at the time of the divorce, so I'm not sure when or how he was served or if he was even served. I've never lived in Texas, so I don't know if the respondent gets served there.




    My husband left Texas long before we met. He was still homeless when he moved to Missouri, which is where we live. He and his first wife were divorced in Texas, and she has since moved to Florida with her child. The only reason we know about this was because we started getting notices from the state of Florida regarding the child support, which was previously paid to Texas. I really don't know why he didn't dispute paternity at the time of the divorce, but I do know that he was homeless and couldn't afford a lawyer, so he may not have been aware of his options. I cannot speak for his choices for the time before we met and married, but I do know that we haven't been able to afford a lawyer, as he has been attending university, and I have been attending college myself, taking care of my disabled child, and working when I can. We're in a better position to afford a lawyer now, so we've been exploring our options. Even if there's nothing we can do to find out for sure whether or not the child is my husband's biologically, we still need to know which state to contact to modify the order to allow us to get to know the child through visitation.
    It is too late now for him to dispute paternity. He should have done that immediately once the divorce was filed. You don't need a lawyer to dispute anything in a divorce. You can conduct a divorce without a lawyer.

    And now it's 12 years later he wants to just intrude in this child's life? You said he hasn't had any contact with this kid in 12 years - maybe the kid doesn't even want to see this guy. My brother has been raising his stepson since he was 2 years old. My nephew's sperm donor took off when he was six months old. My nephew is 15 now. One time it came up about the sperm donor and he flat out said he hates the guy and never wants to meet him. He was about 12 or 13 when he said that. I don't blame him. My SIL does get child support from him once in a while. But that's the extent of it.

    Your husband can reach out and file for visitation but maybe you guys think about how it might affect this child who is nearly a teenager and has never met your husband and maybe doesn't want to. Maybe he does. But think about the interests of that child because you are all strangers to him.

  10. #10
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    Jul 2019
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    Default Re: Disputing Paternity of Child Born Within Marriage in Another State

    Thank you, everyone. Since it seems there's little that can be done, it may just be best to pay the child support and not try to establish a relationship at this point, given that the child lives so far away and doesn't know my husband at all. I wish that my husband had taken steps sooner, but I wasn't even aware of the existence of this child until after we were married. I can't even begin to imagine what this child has been feeling. I hope he has a stepfather or father figure of some sort in his life, even if it isn't his legal or biological father.

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