Nonmarital Children’s Paternity and Death of Alleged Father

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Divorce Attorney Houston: Recently I have had more than one person ask me about establishing paternity and doing a name change after a father has passed away.

There is an automatic presumption of paternity for children who are born during a marriage. However, the number of children born out of wedlock in this country has increased dramatically since the first half of the twentieth century.

This article will explore whether an action to establish paternity of an illegitimate child may be brought after the death of the alleged father.

CASE LAW

The question of establishing paternity after death is one that I have run into a few times. As such, it has caused me to look at both the family code and case law.

This situation does not come up often. I will share a brief synopsis of some of the cases I have read on the topic below.

Manuel v. Spector, 712 S.W.2d 219 (Tex. App. 1986)

The mother of a child brought an action to establish paternity against a putative father. During the case the putative father was deceased. The petition was then amended naming the deceased parents as his biological parents.

The petition requested the court to order the deceased parents to submit to blood tests in an attempt to establish paternity pursuant to Chapter 13 of the Texas Family Code. The alleged paternal grandmother was ordered to submit to blood testing.

The alleged paternal grandmother sought a writ of mandamus asking to rescind the order.

The appellate court considered the initial or threshold question on whether an action to establish paternity may be brought after the death of the putative father.

In considering the answer, the appellate court looked to the Family Code and found that it “does not provide for abatement of the proceeding upon the death of the putative father although it does place a limitation period upon the child to bring the action on or before the second anniversary of the day the child becomes an adult.”

The appellate court also considered the intent of the legislature: “Applying a liberal construction to achieve the intent of the legislature and to promote justice we are not compelled to hold that abatement necessarily follows from the death of the putative father. An action to establish paternity under our family code is not entirely limited to the establishment of a right of support. Rather there is evidence of a clear intent to create a status: the parent-child relationship, which confers upon the illegitimate child all the rights and privileges of a child born to the father and mother during marriage.” Manuel v. Spector, 712 S.W.2d 219, 222 (Tex. App. 1986).

The Court of Appeals held that:

1. Action to establish paternity may be brought after the death of the putative father, and
2. Alleged paternal grandmother was not a party to paternity proceeding whom trial court could order to submit to blood testing.

If this case were considered today it is likely the grandmother would have had to submit to genetic testing. This is because § 160.508 of the Family Code now specifically allows for ordering grandparents to be tested.

In Interest of A.S.L., 923 S.W.2d 814, 815 (Tex. App. 1996)

Houston Divorce Lawyers: This is the most recent case I have found on the topic. In this case, a mother filed to establish the paternity of an alleged father following his death. Her case was dismissed by the district court and she appealed.

The Court of Appeals then ruled that that:

1. An action to establish paternity could be brought after the death of the alleged father;
2. A clear and convincing evidence standard was applied to such action; and
3. Evidence was not legally insufficient and the trial court erred in this finding.

Chapter 160 of the Family Code governs a suit affecting the parent-child relationship in which the parentage of the biological mother or father is sought to be adjudicated. Tex.Fam.Code Ann. § 160.001 (Vernon 1996).

TEXAS STATUTES

§ 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 vital statistics unit;

(b) he is voluntarily named as the child’s father on the child’s birth certificate; or

(c) he promised in a record to support the child as his own; or

(d) during the first two years of the child’s life, he continuously resided in the household in which the child resided and he represented to others that the child was his own.

(e) 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.

§ 160.505. Genetic Testing Results; Rebuttal

Family Law Attorney Houston: (a) A man is rebuttably identified as the father of a child under this chapter if the genetic testing complies with this subchapter and the results disclose:

1. that the man has at least a 99 percent probability of paternity, using a prior probability of 0.5, as calculated by using the combined paternity index obtained in the testing; and

2. a combined paternity index of at least 100 to 1.

(b) A man identified as the father of a child under Subsection (a) may rebut the genetic testing results only by producing other genetic testing satisfying the requirements of this subchapter that:

1. excludes the man as a genetic father of the child; or

2. identifies another man as the possible father of the child … Continue Reading