When Trey Andrews, of Dallas, was 18, he married his girlfriend after she became pregnant.
“It was the right thing to do,” he said. Andrews joined the military and divorced his wife, who moved several times, taking the boy he thought was his with her as she moved.
He continued with his $450 per month child support payments but began to suspect the child was not his biological son. Andrews, now 34, said he saw pictures of the now 16-year-old as he grew up and noticed that the boy looked just like a friend of his who had been with his wife before the two were married.
Andrews, who did not have a relationship with the child during his early years, took a DNA test in the fall and was able to discontinue the payments. He said he now dedicates that money to his own family.
In the past, Texas state law dictated he would have had to continue to pay child support even if a DNA test had shown that he was not the biological father. But last year, Andrews learned about a new Texas law the state Legislature passed in 2011. It helped free him from making the payments.
Up until Sept. 1, men can file a petition to terminate parental rights with a family court if he has been paying child support on a child that is not his biologically. The court will then order DNA testing to confirm that he is not the biological father, and he may stop child support payments once his parental rights have been terminated.
After Sept. 1, a man can file to terminate the payments only if he has found out in the preceding 12 months that he was not the biological father, Dennis Fuller, a family attorney in Dallas with 30 years of experience, said.
If a man owes back child support, even if he is not the biological father, he still must pay what he owes before terminating his child support payments, according to the new statute. And the man may not collect the money he has already paid.
“The law in Texas has forever been that if a woman was married to a man, then the child was presumed to be his,” Fuller said. This assumption came from a time when there was no DNA testing and also was in place to save the woman's reputation, he said.
In many instances, the stories were similar to Andrews,' in which Fuller's client was in the military, got a divorce while deployed and began to pay child support. “He may come back and get married, and the new wife begins to ask questions about why he pays support and never sees the child,” Fuller said.
In the past, there was nothing a man could do, and he had to continue to pay the child support, Fuller said. He said that before the new law took effect, family court judges usually would not order a paternity test because they thought it was damaging to the family.
But the courts have been misguided in not ordering the paternity tests in the past, and it's been very healing in some cases for all concerned to find out that the man who has been paying child support is not the father, Fuller said. “The mother may have been re-married and in many cases, her husband wants to adopt the kid,” Fuller said. He said he has not represented anyone yet where it was not a relief to know the truth.
Family Judge Carole Clark of the Smith County 321st District Court said she had no problem with a person having the right to contest paternity and that she sees it daily. The issue for her, she said, has been the year of unlimited statute of limitations.
She said there is no precedence in the law for that type of action (the unlimited statute of limitations).
Most of the cases she said she is seeing originally were default actions, which meant someone was served, and they didn't do anything to protect their right to complain.
“I also have a problem with a law that says you get two bites of an apple, especially when children are involved,” Judge Clark said.
Her oath of office requires her to uphold the laws of the state and the United States, and she said she is doing just that on a regular basis. “Once September gets here, this unlimited statute of limitations will be over, and we will continue with a law that is more in keeping with centuries of statutory and case law,” the judge said.
Bruce Bain, a family attorney in Tyler, said there are positives to the new law. “There is now a mechanism in place to keep all parties honest.”
Bain said that under the old law, there was only a four-year statute of limitations from the time the father found out or should have known that there was any possibility the child was not his. It was very limited, he said. “If the statute of limitations had passed, even if he got definitive DNA proof that he was not the father, he was required to continue to pay child support if he had been ordered to do so previously,” Bain said.
The new statute also allows the man who was thought to be the father and had paid child support in the past to continue to have a relationship with the child if he desires. Bain likened the relationship to that of a step-parent.
“Children cope with stepparents all the time,” he said.
Bain said a man must first file a motion and get the matter on the docket. If the judge orders a paternity test, the results take about six to eight weeks to come back. Once test results come back, there is court hearing, Bain said. He added that in order to stop paying child support, a man must go back to the court where the child support was ordered, called “a court of continuing jurisdiction,” and file the motion there.
“Most lawyers tell clients that if there is any doubt at all in their minds to do a test,” Bain said. There are paternity tests sold over the counter in pharmacies under brand names such as IDENTIGENE that will answer the question of paternity with a cheek swab. But these are not admissible in court under the rules of evidence, Bain said. A judge must order the DNA tests, which are admissible, Bain said. IDENTIGENE, the only brand name available over the counter for DNA testing, also offers a court-admissible version of the test.
The law had the support of the Texas Family Law Foundation. JoAl Cannon Sheridan is a board certified family lawyer and is the treasurer of the Family Law Foundation. She has been on the State Bar Family Law Foundation legislative committee for 11 years.
“We thought it was a good policy. The intent of the bill is to balance between proving fraud and protecting the father's relationship with the child,” she said.
A licensed professional counselor who works with children said he has no problem with the law and can understand why someone would not want to continue to pay child support on a child that is not his.
David Wheeler is a licensed professional counselor who works with children and adolescents at East Texas Medical Center Behavioral Health Center. How a child is affected by a man who stops paying child support depends on how the mother handles it, he said.
“In most cases, the dad won't just walk away from the child. The man doesn't have a lot of involvement with the kid to begin with,” Wheeler said. He added that how a child reacts depends on how the issue is handled within the family, and on a parent maintaining a healthy boundary. “Kids have this sense that they can fix things,” Wheeler said.
Updated Monday, April 16, 2012 at 2:09 p.m. CDT