Law and biology not always the same

Bizar Male

Happy Father’s Day!

Ah, but this is a legal column, so let us look at that greeting a bit more closely.

There are many types of fathers. There are biological fathers, legal fathers, intended fathers, stepfathers and adopted fathers. A man might be a father for purposes of family law but not a father for purposes of the probate law.

Fathers can be presumed, contractual or acknowledged. They can be estopped into being.

Some women can even be considered quasi-fathers as a co-parent with the biological mother.

These categories are not exclusive; they will continue to grow as the law changes and the science gets more sophisticated.

If you are legally considered a father, then you have some rights and you have some obligations. You have the right to have access to your child – to visit, make decisions and parent. You have the obligation to support your child.

Being legally recognized as a father is a big deal. It is not, however, a done deal.

For the first four years of a child’s life, another man could come in and claim to be the biological father. If that happens, then it comes down to the DNA test.

It is all a matter of statute and presumptions. A man who is married to the child’s mother when the child is born is presumed to be the father. Similarly, a man who lives with the child’s unmarried mother for the first two years of the child’s life and represents to others that he is the father is legally presumed to be the father.

However, a man claiming to be the biological father can start a suit to establish parentage within four years of the child’s birth. After four years, the bio dad can bring suit only if he was prevented from learning that he was the father by a misrepresentation, or if he can prove the presumed father did not have “relations” with the child’s mom during the probable time of conception.

If the bio dad wins the suit, he becomes the legal father.

As you can imagine, the fact situations in these cases can become convoluted. One case involved the child’s mother, the child’s father and the father’s wife. Mom and the father had an affair while the father was estranged from his wife. Mom and the father broke up. Mom then reunited with her high school boyfriend and the father reunited with his wife. The father and wife broke up again, but then the wife found out she was pregnant. Then Mom found out she was pregnant, too. Mom, the father and wife started living together. After Mom’s baby was born, the father claimed it was his child. When Mom finally moved out, the father refused to let her take her child.

Mom sued, and it turned out that the father was not the biological dad of the child. But the father had treated the child as his own for more than six years. The court decided he was the legal father.

In that case, the law was just. It does not always turn out that way.

That really brings up a much bigger issue – true fatherhood is not determined by law or by biology. It is determined by the parental love shown by a man to a child. It reverberates through a child’s life and self-worth.

No contract or statute or case law can make that bond. It is personal. It should be recognized and nurtured and cherished.

So let us say it one more time – Happy Father’s Day!

Virginia Hammerle has been board-certified in civil trial law by the Texas Board of Legal Specialization for over 25 years. Her practice includes litigation, estate planning and trust law. To receive her monthly newsletter, email [email protected]. Additional columns are at legaltalktexas.hammerle.com. This column is for general information only and does not constitute legal advice.

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