Divorce When the Husband is Not the Father

By law, the husband is the presumed legal father of any child born to the wife during the marriage. This is true even if the husband and wife were separated when the child was born. Read Texas Family Code 160.204 for more information.

If the husband is not the genetic father of the child (and he does not want to be the legal father), paternity of the child must be established before you can finish your divorce.

Note: In some Texas counties, it’s better to establish paternity before you start your divorce.

Paternity is the legal identification of a child’s father. When paternity is established the child’s genetic father becomes the child’s legal father with all of the rights and duties of a parent. Paternity can be established by legal presumption (when the parents are married), by voluntary acknowledgment, or by court order.

There are two ways to establish paternity when the husband is not the genetic father.

1. By Voluntary Acknowledgment and Denial of Paternity

If everyone agrees:

• the child’s genetic father and mother sign an Acknowledgment of Paternity (AOP) stating (under penalty of perjury) that the man is the child’s genetic father; and
• the husband (the presumed father) signs a Denial of Paternity (DOP), stating (under penalty of perjury) that the husband is not the child’s genetic father.

When both the AOP and DOP are completed and filed with the Texas Vital Statistics Unit:

• the child’s genetic father becomes the child’s legal father with all the rights and duties of a parent, and
• the husband’s rights and duties as a parent are ended.

Note: The AOP and DOP can be on one form or different forms. They can be signed and filed at different times. But neither is valid until both are completed and filed with the Texas Vital Statistics Unit.

2. By Court Order

The husband, the child’s mother, the child’s genetic father, or another authorized person or entity (such as the Office of the Attorney General) can file a paternity case to ask for a paternity order. The judge will order genetic (DNA) testing (if needed) as part of the paternity case.

When the judge signs the paternity order (called an Order Adjudicating Parentage):

• the child’s genetic father becomes the child’s legal father with all the rights and duties of a parent, and
• the husband’s rights and duties as a parent are ended.

Note: The paternity order can include custody, visitation, child support, and medical support orders (but it doesn’t have to). 

The Acknowledgment of Paternity (AOP) and the Denial of Paternity (DOP) can be completed at the hospital when the child is born. The hospital will then file them with the Texas Vital Statistics Unit for you.

The AOP and DOP can also be completed before or after the child is born at a certified entity (such as a local birth registrar or child support office). Call 866-255-2006 or search online to find a certified entity near you. The certified entity will then file them with the Texas Vital Statistics Unit.

If you need assistance or you are parents who live out of state, you can get help completing an AOP or DOP over the phone by calling 866-255-2006 or submitting a request online.

Note: An AOP and DOP signed before the child is born take effect on the day the child is born.

Yes. You will need a certified copy of the completed AOP and DOP form for your divorce.  

You can learn more through the Office of the Attorney General - Paternity Establishment website or call the OAG at 1-866-255-2006.

You can also read Acknowledgment of Paternity and Denial of Paternity.

You will need a certified copy of the completed AOP and DOP form for your divorce. If you do not have a certified copy, contact the Texas Vital Statistics Unit to get certified copies.

You can use the Acknowledgment of Paternity (AOP) Inquiry Request Form to request a information about acknowledgments of paternity or denials of paternity (see Paternity FAQs). To request a copy, complete an Acknowledgement of Paternity Inquiry application.

You must file a paternity case to get a court order establishing paternity of a child. The husband, the child’s mother, the child’s genetic father, or another authorized person or entity (such as the OAG) can file a paternity case. If you want to file a paternity case yourself, TexasLawHelp.org's guide I need a paternity order contains answers to frequently asked questions, step-by-step instructions, and forms for a case.

Warning! Filing a paternity case is complicated (especially if it’s not agreed or you or the other side wants genetic testing). It may be better to open a case with the Office of the Attorney General (OAG) or hire a private lawyer.

For information about opening a case with the OAG, call 800-255-8014 or visit the OAG's website.

If you need advice or help from a lawyer and do not know where to find one:

• Use our Legal Help Directory to search for a lawyer referral service, legal aid office, or self-help center in your area.
• Check our Legal Events & Clinics page for free legal clinics in your area.
• Use Ask a Question to chat online with a lawyer or law student.

You will need a file-stamped copy of the order for your divorce. If you don’t have a copy of the order, contact the district clerk’s office in the Texas county where the order was made to get a copy.

If you have a copy, make sure it was signed by the judge. If your copy was not signed by the judge, you must get a new copy. Contact the district clerk’s office in the Texas county where the order was made to get a copy.

Review our guide I need a divorce. We have minor children. A final custody and support order is already in place. for more information.

It’s important to talk with a lawyer if the husband wants to be the child’s legal father but is not the genetic father.

Talk to a lawyer who practices family law–and knows LGBTQ+ family law–if either wife in a same-sex marriage between women gave birth to a child during the marriage. Also, read Same-Sex Parentage for more information.