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Ely, Counselor at Law
Category: Family Law
Satisfied Customers: 102350
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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My husband had a one night stand with a married woman who then

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My husband had a one night stand with a married woman who then became pregnant. She said the child was my husband's and she did not want anything from him. She didn't want to break up our marriage. The child was born in 2004 while she was still married to her husband but is now divorced from. A year after the child was born she started contacting my husband. Then after the child was 2 and a half, she would contact him every 3 months for financial help with utilities. There has been no paternity test. I just found out 2 weeks ago about the affair. My question is, if paternity is established and he is the father will it have to go on record? I realize that she has the right to pursue child support, but does he have to be involved in the child's life? At this point he is willing to give up all and any rights to the child.
Submitted: 5 years ago.
Category: Family Law
Expert:  Ely replied 5 years ago.
Hello and thank you for the opportunity to assist you. Please remember that there might be a delay between your follow ups and my replies because I am typing out my answer, or taking a quick break.

Can you please tell me what state she and the child are in, and what state are you and the husband in (if different)?
Customer: replied 5 years ago.
Expert:  Ely replied 5 years ago.
Thank you. One more question - is his name already on the birth certificate or is her ex's name on the birth certificate?

Did her ex know that the child was of your husband, or not?

This is important and I will explain why in a second.
Customer: replied 5 years ago.
From what I know, my husband's name is XXXXX XXXXX the birth certificate and I am assuming that her ex's' name is. I believe that at the moment the ex believed the child was his, he may have had his thoughts, but my husband stated to me that later she told her ex that the child was not his. He said he would still think of her as his and was willing to pay child support. Whether or not any of this is true is beyond me.
Expert:  Ely replied 5 years ago.
Thank you.

The reason I asked is because Texas has something called "presumed paternity." In essence, a man can become the presumed father via several methods; if:

-He is married to the mother of the child at the time of birth; or
-The child is born within 300 days after the termination of the marriage; or
-During the first two years of the child';s life, he continuously resides with the child, and represents to others that the child is his own. [TFC § 160.204]

So, I am going to assume that the ex is the presumed father.

This presumed paternity may be rebutted if:

-The presumed father files a denial of paternity along with an acknowledgment of paternity by another man [TFC § 160.204(b)]; or
-A court determines that he is not the father in a suit filed within four years of the child's birth [TFC § 160.607(a)];or
-A court determines that he is not the father, and that he did not cohabitate with or have sexual intercourse with the mother during the time of probable conception, and that he never represented that the child was his own, in a suit filed at any time. [TFC § 160.607(b)]

Notice the bolded section? This is his argument. If the ex is the presumed father, the presumption "sticks" if it has not been challenged in four years. Therefore, arguably, the ex is now the father for good, even if not biologically.

The only other way is that the mother would have to prove that the ex did not cohabitate with or have sexual intercourse with the mother during the time of probable conception, and that he never represented that the child was his own, in a suit filed at any time. And since they were married and lived together...

So your husband has a chance at escaping paternity, so to speak. If she files a petition to adjudicate paternity, then it is up to the Court to decide, of course, but this would be his affirmative defense.

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