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Paternity Question

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Txquestions

Junior Member
What is the name of your state? Texas

After 8 years of marriage, my brother and his wife seperated (for 9 months) and were in the process of filing for divorce when she decided to come back. A couple of weeks after her return, she found out that she was pregnant. (They already had 1 child together.)

When the baby was born, my brother signed the AOP because she assured him this was his child. (The baby was born premature and she and the mother nearly died). Shortly after both the mother and the baby got out of the hospital, the mother took both children and left again. The mother has since told my brother that the child isn't his.

Now the mother is trying to get child support through the Attorney General's office. My brother told the AG office that he would gladly pay child support for the first child but he wanted a paternity test done before agreeing to pay child support for the second child.

The AG office told him because he signed the AOP that he had to pay child support.
Is this true?
I found the AG of Texas website http://www.oag.state.tx.us/AG_Publications/txts/paternity.shtml that says if the father doesn't think the child is his, he just has to ask for a paternity test.

If this is true, why would the AG office give him a hard time?

He has been trying to get her to have the Paternity test done since the baby was born, but she refuses.

What are his next steps?
What legal actions should he take?

Thanks in Advance,
TxQuestionsWhat is the name of your state?What is the name of your state?What is the name of your state?What is the name of your state?
 


Silverplum

Senior Member
WHEN was the child born/the AOP signed? That matters, a lot.

Why isn't Dad finding out answers to his own legal problems??

What is the name of your state? Texas

After 8 years of marriage, my brother and his wife seperated (for 9 months) and were in the process of filing for divorce when she decided to come back. A couple of weeks after her return, she found out that she was pregnant. (They already had 1 child together.)

When the baby was born, my brother signed the AOP because she assured him this was his child. (The baby was born premature and she and the mother nearly died). Shortly after both the mother and the baby got out of the hospital, the mother took both children and left again. The mother has since told my brother that the child isn't his.

Now the mother is trying to get child support through the Attorney General's office. My brother told the AG office that he would gladly pay child support for the first child but he wanted a paternity test done before agreeing to pay child support for the second child.

The AG office told him because he signed the AOP that he had to pay child support.
Is this true?
I found the AG of Texas website http://www.oag.state.tx.us/AG_Publications/txts/paternity.shtml that says if the father doesn't think the child is his, he just has to ask for a paternity test.

If this is true, why would the AG office give him a hard time?

He has been trying to get her to have the Paternity test done since the baby was born, but she refuses.

What are his next steps?
What legal actions should he take?
 

fairisfair

Senior Member
What is the name of your state? Texas

After 8 years of marriage, my brother and his wife seperated (for 9 months) and were in the process of filing for divorce when she decided to come back. A couple of weeks after her return, she found out that she was pregnant. (They already had 1 child together.)

When the baby was born, my brother signed the AOP because she assured him this was his child. (The baby was born premature and she and the mother nearly died). Shortly after both the mother and the baby got out of the hospital, the mother took both children and left again. The mother has since told my brother that the child isn't his.

Now the mother is trying to get child support through the Attorney General's office. My brother told the AG office that he would gladly pay child support for the first child but he wanted a paternity test done before agreeing to pay child support for the second child.

The AG office told him because he signed the AOP that he had to pay child support.
Is this true?
I found the AG of Texas website [B]http://www.oag.state.tx.us/AG_Publications/txts/paternity.shtml [/B] that says if the father doesn't think the child is his, he just has to ask for a paternity test.

If this is true, why would the AG office give him a hard time?

He has been trying to get her to have the Paternity test done since the baby was born, but she refuses.

What are his next steps?
What legal actions should he take?

Thanks in Advance,
TxQuestionsWhat is the name of your state?What is the name of your state?What is the name of your state?What is the name of your state?
Well, if you actually went to and read that site, then you should have found this

What if one or both parents change their mind after they have signed the AOP and it has been filed at BVS?

Anyone who signed the AOP may file a petition to rescind it. The petition must be filed in court within the first 60 days after the AOP has been filed with BVS or before the first court hearing, whichever is earlier.
 

Txquestions

Junior Member
I read that, but he wasn't enlightned to the fact that the child wasn't his until well after the 60 days...
The baby was born in September...
I am only helping my brother with this problem, he has been in touch with the AG office and is pursuing other avenues as well.

Any help would be greatly appreciated,
Txquestions
 

fairisfair

Senior Member
I read that, but he wasn't enlightned to the fact that the child wasn't his until well after the 60 days...
The baby was born in September...
I am only helping my brother with this problem, he has been in touch with the AG office and is pursuing other avenues as well.

Any help would be greatly appreciated,
Txquestions
I would guess that his only chance would be in being able to prove fraud on the part of the mother. He will need an attorney, alot of money, and more luck than I have ever had.

In other words, he will most likely need to get used to being the legal father, regardless of whether or not this is his biological child. Time for this was when mom came back pregnant. NOT NOW.
 

LdiJ

Senior Member
I would guess that his only chance would be in being able to prove fraud on the part of the mother. He will need an attorney, alot of money, and more luck than I have ever had.

In other words, he will most likely need to get used to being the legal father, regardless of whether or not this is his biological child. Time for this was when mom came back pregnant. NOT NOW.
I am not sure that its as bad as that. He can't rescind the AOP, but that doesn't mean that he can't challenge paternity. From the sound of the first post the child is still an infant.
 

Ohiogal

Queen Bee
I am not sure that its as bad as that. He can't rescind the AOP, but that doesn't mean that he can't challenge paternity. From the sound of the first post the child is still an infant.
He is married to her though. Hence he is the legal father due to being married to the mom at the time of birth AND signing the AOP. Double whammy. He can however hope that the REAL biological father steps forward. Or HE can sue for FULL custody of both the children or he can testify to fraud on mom's part.
 

LdiJ

Senior Member
He is married to her though. Hence he is the legal father due to being married to the mom at the time of birth AND signing the AOP. Double whammy. He can however hope that the REAL biological father steps forward. Or HE can sue for FULL custody of both the children or he can testify to fraud on mom's part.
Yes, I agree that he is the legal father. However I seem to remember that in TX you have two years after the child's birth to contest paternity....and if you don't do it within that time frame, then you are possibly sol. Therefore I think that he should consult with a local attorney.
 

mommyof4

Senior Member
Texas Family Code

§ 160.308. CHALLENGE AFTER EXPIRATION OF PERIOD FOR
RESCISSION. (a) After the period for rescission under Section
160.307 has expired, a signatory of an acknowledgment of paternity
or denial of paternity may commence a proceeding to challenge the
acknowledgment or denial only on the basis of fraud, duress, or
material mistake of fact. The proceeding must be commenced before
the fourth anniversary of the date the acknowledgment or denial is
filed with the bureau of vital statistics unless the signatory was a
minor on the date the signatory executed the acknowledgment or
denial. If the signatory was a minor on the date the signatory
executed the acknowledgment or denial, the proceeding must be
commenced before the earlier of the fourth anniversary of the date
of:
(1) the signatory's 18th birthday; or
(2) the removal of the signatory's disabilities of
minority by court order, marriage, or by other operation of law.
(b) A party challenging an acknowledgment of paternity or
denial of paternity has the burden of proof.
(c) Notwithstanding any other provision of this chapter, a
collateral attack on an acknowledgment of paternity signed under
this chapter may not be maintained after the fourth anniversary of
the date the acknowledgment of paternity is filed with the bureau of
vital statistics unless the signatory was a minor on the date the
signatory executed the acknowledgment. If the signatory was a
minor on the date the signatory executed the acknowledgment, a
collateral attack on the acknowledgment of paternity may not be
maintained after the earlier of the fourth anniversary of the date
of:
(1) the signatory's 18th birthday; or
(2) the removal of the signatory's disabilities of
minority by court order, marriage, or by other operation of law.
(d) For purposes of Subsection (a), evidence that, based on
genetic testing, the man who is the signatory of an acknowledgement
of paternity is not rebuttably identified as the father of a child
in accordance with Section 160.505 constitutes a material mistake
of fact.
Tell him to get a good atty. He needs one.
 

Txquestions

Junior Member
If I read this correctly,

Subsection (d) states that a generic test (I would assume a paternity test) would overide the AOP under the "material mistake of fact" clause?

Thanks for the help,
Txquestions

State is Texas
 

LdiJ

Senior Member
If I read this correctly,

Subsection (d) states that a generic test (I would assume a paternity test) would overide the AOP under the "material mistake of fact" clause?

Thanks for the help,
Txquestions

State is Texas
Yep...that would be a potential material mistake of fact.
 
Last edited:

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