Each child has a biological father, but sometimes a child may not have a legally established father. This article discusses what to do when the identity of a child’s father is unknown, but there is a need to continue with court, or get a court order.
What is paternity?
Paternity is legal fatherhood.
When would a child not have a legally established father?
The following situations may result in a child not having a legally established father:
- The child’s parents were not married at the time of the child’s birth.
- No father was named on the child’s birth certificate.
- No Acknowledgment of Paternity was signed.
How can I go to court to prove who is the legal father of my child?
Any parent can file a paternity lawsuit to prove who the child's legal father is. A parent must also file a paternity suit to prove someone is not the legal father.
What is the Texas Office of the Attorney General (OAG)'s role in unknown paternity cases?
When a parent receives public or government assistance in Texas, a child support case may be opened automatically. These benefits may include Medicaid, CHIP, or Temporary Assistance for Needy Families (TANF). The OAG does not manage, issue, or control these benefits. But the OAG is responsible for establishing and enforcing child support, so these actions may affect your benefits. Learn about child support and public assistance.
The OAG provides Parent Locator Services. These services may be requested for the purpose of establishing a court order for paternity. The application is available online. A mother can give the OAG information about all people she thinks might be the child’s father. If possible, a mother should provide the alleged father’s full legal name, any aliases, address, phone number, email address, place of employment, and the employer’s address and phone number.
What happens in court after a paternity lawsuit has been filed?
After the suit is filed, all named alleged fathers must be served—that is, given formal notice that they are a named party in a paternity lawsuit.
Once each potential father is served, the court will order genetic testing. This is so the court can establish an alleged father as the biological father.
If the OAG opens your paternity case, the genetic test may be provided at no cost. In a private paternity lawsuit, parties can agree who will pay for the genetic testing or the court will decide. Usually, if a party requests the test, the court will order that party to pay for the test. These genetic tests can determine the biological father with 99% accuracy.
After the genetic test results are returned from the lab, the court will sign an order that adjudicates parentage. This means that the court will establish the parent-child relationship between the genetic father and the child(ren) subject of the paternity lawsuit.
If an alleged father and the mother of a child decide to agree about the identity of the child’s biological father, parents can complete an Acknowledgement of Paternity form. To request a copy of the AOP, fill out this form and follow the instructions on the form for where to send it.
What happens if the child’s father is truly unidentifiable?
If a child’s father is unidentifiable, then no man would have legal custody or visitation.
This also means that no man will have a legal obligation to provide child support or medical support. It may not be necessary to get a court order in this situation. The child's mother would have all the legal rights over the child.
But, sometimes, going to court may be necessary. This could happen if the mother is receiving public or government assistance, and the OAG opens a child support case automatically. Court may also be required if the mother or another person with standing needs a court order. A court order would say who has rights and duties over the child; when a person can visit; and if anyone will must provide child support and medical support for the child.
How will the court know the child’s father is unknown?
If a child’s father is unknown, the petition to the court must include a statement that the identity of the father of the child is unknown. Texas Family Code 102.008(b)(8).
The mother (or another party to the lawsuit) can testify about these facts in court.
Does an unknown father need to be served with notice of the lawsuit?
An unknown person can be served through Citation by Publication. The citation by publication must be posted on the statewide website, and in a newspaper of general circulation published in the county in which the petition was filed. Citation by publication can be a difficult process, so you should speak with an attorney if your case requires citation by publication.
Can an attorney ad litem be appointed to any alleged father?
An attorney ad litem appointed to represent the interests of an alleged father is only required to do the following:
- investigate the petitioner's due diligence in locating the alleged father, including by verifying that the petitioner has obtained a certificate of the results of a search of the paternity registry under Chapter 160;
- interview any party or other person who has significant knowledge of the case who may have information relating to the identity or location of the alleged father; and
- conduct an independent investigation to identify or locate the alleged father, as applicable.
If the attorney ad litem identifies and locates the alleged father, the attorney ad litem shall:
- provide to each party and the court the alleged father's name and address and any other locating information; and
- If appropriate, request the court's approval for the attorney ad litem to assist the alleged father in establishing paternity.
If the alleged father is found to be a parent of the child and is also indigent, the court may appoint the attorney ad litem to continue representing the father's interests as a parent.
If the attorney ad litem cannot identify or find the alleged father, the attorney ad litem will submit a written summary to the court of the efforts to identify or find the alleged father. After receiving the attorney ad litem's report, the court shall discharge the attorney from the appointment. Texas Family Code 107.0132.
I believe I am the biological father of a new baby. What can I do?
The Texas Department of State Health Services – Vital Statistics has a Paternity Registry. The registry lets a man alleging to be the biological father of a child assert his parentage. This will help the man preserve his right as a parent. The man can do this independently from the mother—meaning he does not need her permission.
You can find the Notice of Intent to Claim Paternity here. This form does not legally establish paternity. It also does not add a man's name to a child's birth certificate. The information on the form can be used in a court proceeding.
This notice of intent to claim paternity must be filed either: (1) before the birth of the child or (2) not later than the 31st day after the date of birth of the child.
The paternity registry may be useful in (but not limited to) the following situations:
- A man and woman do not agree that the man is the father of her child. The man wishes to assert his paternity.
- More than one man claims to be the father of the child. Each man would complete a separate Notice of Intent to Claim Paternity.
- The mother refuses to complete and sign the Acknowledgment of Paternity form.
The paternity registry also may speed up adoptions of children whose biological fathers are unwilling to assume responsibility for their child.
Talk to a lawyer about how to properly fill out and submit your Notice of Intent to Claim Paternity.
How can I see if someone filed a Notice of Intent to Claim Paternity?
A child's mother, the court, or an attorney in a termination–adoption suit concerning the child can request a search of Texas’s Paternity Registry. Fill out an Application for Paternity Registry Inquiry and send the completed form to Vital Statistics.
Other states keep paternity registries too. You may want to search the paternity registry in any state where you may have resided or where your child was born.
I found out I am not the child’s biological father. What can I do?
Sometimes, a man is mistakenly named as a child’s legal father. ReadI want to terminate my rights. I mistakenly thought I was the genetic father (Termination) and Mistaken Paternity.
This article explains what to do when the identity of a child's father is unknown.
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This article explains what to expect if you are ordered to appear in a IV-D Court (also known as child support court).
Same-sex couples may have to take extra steps to establish the parent-child relationship.
This article contains information on terminating parental rights.
In Suits Affecting the Parent-Child Relationship, judges make custody, visitation, and support orders.
This article tells you about getting a divorce when the husband is not the father of a child born during the marriage.