Paternity refers to the legal relationship of a parent, specifically a male parent, to a child. Legal parent child-relationships differ between the sexes.
The term parent-child relationship means the legal relationship between a child and the child’s parents as provided by Family Code Chapter 160. The term includes the mother-child relationship and the father-child. A parent-child relationship gives the parents specific rights and duties with respect to the child. The parent-child relationship extends equally to every child regardless of the parents’ marital status.
“Parent” defined. Parent means the mother, a man presumed to be the father, a man legally determined to be the father, a man who has been adjudicated to be the father, a man who has acknowledged his paternity, or an adoptive mother or father. The term does not include a parent as to whom the parent-child relationship has been terminated. Since a child can have only one legal father, a person who is adjudicated to be a child’s father becomes the child’s parent to the exclusion of a man previously presumed to be the father.
“Child” defined. The term child means a person under 18 years of age who is not and has not been married or who has not had his or her disabilities of minority removed for general purposes. In the context of child support, “child” includes a person over 18 years of age who is fully enrolled in an accredited secondary school in a program leading toward a high school diploma.
Establishing A Mother Child Relationship
The mother-child relationship is established between a woman and a child by:
- The woman giving birth to the child;
- An adjudication of the woman’s maternity; or
- he woman’s adoption of the child.
Establishing Paternity – a Father Child Relationship
The father-child relationship is established between a man and a child by:
- An unrebutted presumption of the man’s paternity of the child;
- An effective acknowledgment of paternity by the man, unless the acknowledgment has been rescinded or successfully challenged;
- An adjudication of the man’s paternity;
- The man’s adoption of the child; or
- The man’s consenting to assisted reproduction by his wife, which resulted in the birth of the child.
Father’s Rights with Respect to the Child
The parent-child relationship gives a parent specific rights and duties, including:
- The right to have physical possession, to direct the moral and religious training, and to establish the residence of the child.
- The duty of care, control, protection, and reasonable discipline of the child.
- The duty to support the child, including providing the child with clothing, food, shelter, medical and dental care, and education.
- The duty to manage the child’s estate (unless a guardian of the child’s estate has been appointed).
- The right to the child’s earnings and services.
- The right to consent to the child’s marriage, enlistment in the armed forces, medical and dental care, and psychiatric, psychological, and surgical treatment.
- The right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child.
- The right to receive child support payments and to hold or disburse funds for the child’s benefit.
- The right to inherit from and through the child.
- The right to make decisions concerning the child’s education.
- Any other right or duty existing between a parent and child by virtue of law.
A proceeding to adjudicate parentage may be joined with a proceeding for possession of or access to a child or child support, or another appropriate proceeding.
A biological father has certain constitutionally protected due process rights with respect to his child. A biological father who asserts his interest in establishing a relationship with the child near the time of the child’s birth has constitutionally mandated standing to assert that interest if he both (1) acknowledges responsibility for child support or other care and maintenance; and (2) makes serious and continuous efforts to establish a relationship with the child.
The denial of state-paid blood grouping tests to an indigent alleged father constitutes a denial of due process rights, at least when the alleged father is charged with support of the child, enforceable by contempt, since if this unusually probative and reliable type of evidence is unavailable to the alleged father, he is effectively denied the opportunity to be heard. Texas law avoids this problem to some extent, since the court must order parentage testing, and the fees of court-appointed experts may be charged by the court to any or all of the parties or to the Texas Department of Protective and Regulatory Services if the department is a party to the suit.
State laws that allow proof of parentage by a preponderance of the evidence standard have been held to be consistent with due process. By contrast, due process requires a clear and convincing standard of evidence in cases in which termination of the parent-child relationship is sought.
A biological father has certain parental rights with respect to his child under the equal protection clause of the United States Constitution. Federal equal protection guarantees require that, if the father has established a “substantial relationship” with the child, the standard for termination of his parental rights be the same as that applied to the unwed mother. However, some statutory differences in the treatment of unwed mothers and biological fathers remain and may be inevitable. For example, the mother of a child is always considered to be a parent with the rights and obligations inherent in the parent-child relationship, whereas the biological father is presumed to be a parent only under certain statutorily-prescribed circumstances. In situations in which there is no presumed father, the genetic father is considered a parent only if he is the acknowledged, adjudicated, or adopted father.
Different treatment by the state of married and unmarried fathers does not generally present a constitutional problem. The United States Supreme Court has recognized that the state has a valid interest in deterring or disapproving the conduct of unwed parents.
Under the Texas Equal Rights Amendment, which forbids discrimination on the basis of gender, the state may not require an unwed father seeking to establish paternity to obtain the mother’s consent or to show that it is in the child’s best interest that he be designated the father. Instead, the state interest in protecting children’s welfare may be served by concentrating on the father’s relationship to the child. “A father who steps forward, willing and able to shoulder the responsibilities of raising a child, should not be required to meet a higher burden of proof solely because he is male”.
Child’s Rights with Respect to the Biological Father
A proceeding to adjudicate parentage may be joined with a proceeding for child support. A parent’s duty to support a child extends equally to genetic fathers. To deny a child a substantial benefit accorded to children generally on the ground that the child’s father was not married to the child’s mother violates the constitutional guarantee of equal protection. The amount of support must be determined without regard to the parents’ marital status.
A person who is not presumed to be the biological child of a decedent may petition the probate court for a determination of the right to inherit. If the court finds by clear and convincing evidence that the claimant is the decedent’s biological child, the claimant must be treated as any other child of the decedent. The state may not deny a child the right to inherit merely because the claim of paternity was filed after the father’s death. Nevertheless, the state’s interest in the orderly disposition of decedents’ estates may justify the imposition of some special requirements on a child born out of wedlock who asserts a right to inherit from his or her biological father. For example, the state’s interest in the orderly disposition of estates may justify limitations placed on the time and manner in which an illegitimate child may assert a right to inherit. However, a statute of limitation may not, within the bounds of the equal protection guarantee, cut off the petitioner’s right to initiate a paternity suit before the petitioner has the opportunity to do so.
If the husband provides sperm for or consents to assisted reproduction by his wife, he is the father of a resulting child. When a man consents to assisted reproduction by his wife and the assisted reproduction results in the birth of a child, a father-child relationship is established between the man and the child. Assisted reproduction means a method of causing pregnancy other than sexual intercourse. The term includes:
- intrauterine insemination;
- donation of eggs;
- Donation of embryos;
- In vitro fertilization and transfer of embryos; and
- Intracytoplasmic sperm injection.
by a married woman to assisted reproduction must be in writing or other record signed by the woman and her husband. Even if the husband does not sign the consent, he may be found to be the child’s father if the husband and wife openly treated the child as their own.
Generally, a husband may challenge his paternity of a child born to his wife by means of assisted reproduction only if:
- He commences a proceeding to adjudicate his paternity before the fourth anniversary of learning of the child’s birth; and
- He did not consent to the assisted reproduction, either before or after the child’s birth.
- However, a proceeding to adjudicate paternity may be maintained at any time if:
- The husband did not provide sperm for or consent to assisted reproduction by his wife;
- The husband and the child’s mother have not cohabited since the probable time of assisted reproduction; and
- The husband never openly treated the child as his own.
These limitations also apply to a marriage that is declared invalid after assisted reproduction.