pjc-family-2024-lib

T ERMINATION OF P ARENT -C HILD R ELATIONSHIP

PJC 218.5

PJC 218.5

Termination by Nongenetic Father (Comment)

The Committee has considered the provisions of Tex. Fam. Code § 161.005(c)–(o), often referred to as “mistaken paternity,” and believes that the procedure prescribed in these provisions, as written, does not encompass an opportunity for fact questions sup porting termination of the parent-child relationship to be submitted to a jury. In 2011, section 161.005 of the Texas Family Code was amended to provide that a man may seek termination of the parent-child relationship if, without obtaining genetic testing, the man signed an acknowledgment of paternity or if he was adjudicated to be the father of the child in a previous proceeding in which genetic testing did not occur. The verified petition seeking termination must allege facts showing that the petitioner is not the child’s genetic father and that he signed the acknowledgment of paternity or failed to contest parentage in the previous proceeding because he was under the mis taken belief, when the acknowledgment was signed or on the date the court order in the previous proceeding was rendered, that he was the child’s genetic father based on misrepresentations that led him to that conclusion. Tex. Fam. Code § 161.005(c). Such a petition must be filed not later than the second anniversary of the date on which the petitioner becomes aware of the facts alleged indicating that he is not the child’s genetic father. Tex. Fam. Code § 161.005(e). Tex. Fam. Code § 161.005(f) requires the court to hold a pretrial hearing to deter mine whether the petitioner has established a meritorious prima facie case for termina tion and, if so, to order genetic testing. If the results of the genetic testing exclude the petitioner as the child’s genetic father, the court must render an order terminating the parent-child relationship. Tex. Fam. Code § 161.005(h). There is no requirement for a finding that the termination is also in the best interest of the child. The Committee believes that, as written, these provisions do not support a question to be submitted to a jury. That is, once the petitioner has satisfied the court that he has a meritorious prima facie case and if the results of the genetic testing exclude him as the genetic father, the court is required to terminate the parent-child relationship.

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