Texas Divorce Attorney Blog
When a mother is married at the time of her child’s birth, the husband is generally presumed to be the father under Texas family law. There are two ways to rebut the presumption: with a proceeding to adjudicate parentage or with the filing of a denial of paternity along with the filing of an acknowledgement of paternity by another person. Suits to adjudicate parentage of a child with a presumed father generally must be brought by the child’s fourth birthday. There is an exception, however if the mother and presumed father did not live together or engage in sexual intercourse at the probable time of the child’s conception. There is also an exception if the presumed father mistakenly believed he was the biological father based on misrepresentations. Tex. Fam. Code § 160.607.
Alleged Father Challenges Adjudication of Paternity
An alleged father recently challenged a trial court’s determination that his adjudication of parentage case was time-barred. According to the appeals court’s unpublished opinion, the alleged father petitioned to adjudicate parentage of two children, one born in 2014 and the other in 2015. The mother was married to another man when the children were born.
The mother moved for summary judgment, arguing the alleged father’s suit was time-barred and none of the exceptions that toll the statute of limitations for adjudication of parentage applied. She attached her own affidavit and an affidavit from her then husband as summary judgment evidence. Her motion was granted.
Alleged Father Appeals
The alleged father appealed, arguing the mother did not meet the burden for summary judgment. He argued there was an applicable exception to the statute of limitations and the mother had not shown that the exceptions did not apply. He also argued that his summary judgment evidence raised a fact issue, so summary judgment was not appropriate.
The mother and her then-husband each stated in their affidavits that they had sexual intercourse during the probable time of each child’s conception, but neither stated whether they lived together at that time.
The mother argued she only had to show she and the husband either lived together or that they had sexual intercourse at the relevant time. She argued she met that burden through the affidavits.
The alleged father, however, argued that the mother was required to show she and the husband both lived together and were having sexual intercourse at the relevant time. He argued that Tex. Fam. Code § 160.607(b)(1) allows a case to continue if either (1) the mother was not living with her husband or (2) the mother and the husband were not having sexual relations. The mother had not presented evidence regarding whether she lived with her husband when the children were conceived. Therefore, he argued, she had not met the burden for summary judgment.
Appeals Court Agrees with Father
The appeals court agreed, noting the mother had to conclusively prove each element of the statute of limitations and negate the exception in Tex. Fam. Code § 160.607(b)(1). Because the mother had not presented any evidence regarding whether she lived with her husband at the time of the children’s conceptions, she failed to negate the exception.
The appeals court determined Tex. Fam. Code § 160.607(b)(1) was unambiguous. The statute uses the word “or” to separate the two phrases. The statute provides that a proceeding may be maintained if “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” (emphasis added). The appeals court concluded this language represented two alternatives and that a lawsuit may proceed under either. To succeed on her motion for summary judgment, the mother therefore needed to show that the alleged father could not prove both that she was not living with her husband and that she was not having sexual relations with her husband when the children were conceived. Without any evidence of whether the mother and her husband lived together at the time, she could not prove the exception did not apply.
The appeals court reversed the summary judgment and remanded the case.
Seeking to Adjudicate Paternity? Call McClure Law Group Today
If you are considering seeking adjudication of parentage, a knowledgeable Texas paternity attorney can advise you regarding the statute of limitations and any potential exception that may apply in your case. Contact McClure Law Group at 214.692.8200.