Texas Presumption of Paternity after Termination of Someone Else’s Parental Rights

Under Texas family law, there are several ways to establish a parent-child relationship between a man and a child, including an unrebutted presumption, an acknowledgement of paternity, adjudication of paternity, adoption, or the man consenting to assisted reproduction resulting in the birth of a child.  A mother recently challenged her former husband’s standing to bring a Suit Affecting the Parent Child Relationship (“SAPCR”) and the trial court’s adjudication of him as the child’s father.

The mother gave birth to the child, identified as “Luke” in the appeals court’s opinion, a month after her marriage to “Justin.”  The mother identified another man as the child’s biological father and Justin admitted he was not the child’s biological father.

According to the opinion, the other man’s parental rights were terminated in September 2011 pursuant to an “Order of Termination.”

Justin lived with the child and held himself out to be the child’s father.  The mother gave birth to a daughter, identified in the opinion as “Gracie,” in August 2012.

The mother and Justin divorced at the end of 2017.  The agreed divorce decree listed Gracie, but not Luke, as a “child of the marriage.” The court found that “no other children of the marriage are expected.”


Justin filed suit in August 2020, asking to be named joint managing conservator of Luke.  The trial court subsequently consolidated the case involving Luke with a modification proceeding involving Gracie.

The mother moved to dismiss Justin’s case, arguing the termination of the other man’s parental rights and the agreed divorce decree both rebutted the presumption that Justin was Luke’s father.  The mother later withdrew her motion.  The trial court stated at the end of the hearing that Justin was the child’s presumed father and it would appoint him and the mother as joint managing conservators of both children.  The court ultimately signed an order, finding Justin was the child’s presumed father and that their parent-child relationship was established as a matter of law. The order also appointed Justin and the mother as joint managing conservators of both children.

Presumption of Paternity

The mother appealed, arguing Justin did not have standing to bring the case because the presumption of paternity had been successfully rebutted.

A presumption of paternity arises when a man is married to the mother when the child is born.  Tex. Fam. Code Ann. § 160.204(a)(1).  Additionally, there is a presumption of paternity when a man continuously resides in the same household with the child and represented the child as his own.  Tex. Fam. Code Ann. § 160.204(a)(5). The presumption can be rebutted if there is an adjudication of parentage under Subchapter G of Chapter 160 of the Texas Family Code or if the presumed father files a denial of paternity in conjunction with someone else filing an acknowledgement of paternity.  Tex. Fam. Code Ann. § 160.204(b).  A case to adjudicate a child’s parentage must be filed by the child’s fourth birthday.  Tex. Fam. Code Ann. § 160.607(a).

The mother argued the termination order rebutted the presumption Justin was Luke’s father.

The appeals court noted that Luke was born while his mother was married to Justin and Justin resided in the same household with him and represented himself as Luke’s father during his first two years of life.  The presumption of paternity therefore applied.

The appeals court rejected the mother’s argument that the order terminating the other man’s parental rights rebutted the presumption.  The appeals court noted that order was pursuant to Chapter 161 instead of Chapter 160.  Additionally, it did not make an adjudication of the child’s parentage.  Instead, it provided that ““the parent[–]child relationship, if any exists or could exist, between [the other man] and [Luke] is terminated.”  The appeals court concluded the termination order did not contain an adjudication of parentage pursuant to Subchapter G of Chapter 160.

The appeals court also rejected the mother’s argument the agreed divorce decree rebutted the presumption of paternity.  The court noted again that there were only two ways to rebut the presumption, and the decree did not meet either.

Res Judicata

The mother also argued res judicata should bar Justin from seeking paternity when he had failed to do so in the divorce case.  Res judicata prohibits a party from relitigating a claim that has been finally adjudicated or matters that could have been litigated in the previous case.  Res judicata occurs when there was a prior final judgment on the merits, the parties are the same or in privity with the prior parties, and there is a second action that is based on the same claims that were or could have been raised in the prior action.

The mother argued the agreed decree was a final judgment that did not list Luke as a child of the marriage.

The appeals court considered another recent case and concluded that the divorce decree that failed to mention Luke could not be considered final for any issues related to him.

Justin had standing to bring the SAPCR, the presumption of paternity had not been rebutted, and res judicata did not preclude his claims.  The appeals court affirmed the trial court’s order.

Call a Knowledgeable Dallas Custody Attorney

If you are facing a custody dispute that may involve a presumption of paternity or other paternity issues, you need the advice of an experienced Texas paternity lawyer.  Schedule a consultation with McClure Law Group by calling 214.692.8200.

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