Is the husband the father if the child is not biologically his?

Question:

I am still legally married to my husband, but I am having another man’s child. My husband and I have been separated for years, and I do not know where he is or how to locate him to divorce him.

If the child is born while I’m still married, will the child be considered my husband’s even though he is not the biological father?

Answer:

Despite not knowing your husband’s location, you can most likely still file for divorce in Texas. There are many ways of finding your husband for service of process of the divorce papers, including publication, which is typically used as a last resort.

Here, it seems that you are still married to your husband. Under Texas law, a man is a presumed father if he is married to the child’s mother, and the child is born during the marriage.

You would probably need to file a Petition for Divorce and a Petition to Adjudicate Paternity depending on the specific facts of your case. Although there are paternity tests sold over-the-counter, these will not hold up as evidence in court.

A judge will order the parties to submit to genetic testing, which will accurately show the correct parentage of your child. The suit to adjudicate parentage is one of the few ways to rebut the presumption of paternity.

I recommend seeking further legal advice as the information provided is only general in nature. Cordell & Cordell has attorneys licensed and located nationwide who can provide a more in-depth analysis of your current situation.

To schedule an appointment with Erin E. Clark, an Associate Attorney in the Fort Worth, Texas office, please contact Cordell & Cordell.