Sometimes a marriage ends because a child was born whose biological father is not the husband. Other times, the question surfaces years later. Either way, the divorce has to address the child’s legal parentage, and Texas law has specific rules for doing that. For families in New Braunfels and Comal County, handling this correctly within the divorce matters a great deal: once a final decree treats the husband as the father, undoing it becomes much more difficult. A family law attorney can explain your options before deadlines pass.
The Presumption: A Husband Is Presumed to Be the Father
Under Texas Family Code § 160.204, a man is presumed to be the father of a child born during his marriage to the child’s mother. The presumption also generally covers a child born within a period after the marriage ends, and can arise in other situations, such as when a man lived with the child for the first two years and openly held the child out as his own.
This presumption applies no matter who the biological father is. It exists to protect children and give them a legal parent from birth. But it is a rebuttable presumption, which means it can be challenged.
What if the child was born before the marriage?
A child born before the marriage to a different man is generally not a child of the marriage, unless the husband adopted the child or took steps that legally made him a parent. If your spouse has a child from a prior relationship and you never adopted or legally acknowledged that child, the divorce typically does not create a support obligation for you. If you want to keep a relationship with a stepchild, see our page on stepparent adoption or talk with us about your options.
Three Ways the Question Is Resolved
1. Denial of paternity with the biological father’s acknowledgment
Texas law allows a presumed father to sign a denial of paternity, but it is generally valid only when it is paired with a valid Acknowledgment of Paternity signed by the biological father and the mother. These forms must meet strict requirements and are filed with Texas Vital Statistics. This route works only when everyone agrees and the biological father is willing to sign.
2. Genetic testing and a court ruling in the divorce
More often, the issue is raised in the divorce itself. The petition states that a child was born during the marriage and that the husband is not the biological father. The court can order genetic testing of the husband, the child and, if available, the alleged biological father. If testing excludes the husband, the court can adjudicate that he is not the father, and the divorce decree will reflect that.
3. A separate parentage suit
In some cases, a separate suit to adjudicate parentage is filed, or the biological father files his own case to establish his rights. Our paternity page covers these proceedings in more detail.
Deadlines You Need to Know
Timing matters a great deal in these cases.
- Four years. Under Texas Family Code § 160.607, a proceeding to challenge the paternity of a presumed father generally must be started within four years after the child’s birth.
- The exception. A challenge may be brought at any time if the presumed father and the mother did not live together and did not have sexual relations during the probable time of conception, and the presumed father never openly treated the child as his own.
- The divorce decree. If the decree names the husband as the father, or orders him to pay support, that finding can be very hard to attack later, even with new genetic evidence.
If you have any doubts about paternity, raise them before the divorce is finalized.
When a Court May Refuse Genetic Testing
Texas law recognizes that a child’s relationship with the man who raised them matters. A court may deny a request for genetic testing if:
- The conduct of the mother or the presumed father makes it unfair to disprove the father-child relationship, for example when the husband knew he might not be the father and raised the child as his own for years, and
- Denying testing is in the child’s best interest.
Courts consider factors such as how long the husband has acted as the father, how the child would be affected, and whether the biological father can be identified. This is one of the most fact-sensitive areas of family law.
What the Outcome Means
| If the husband is adjudicated the father | If the husband is adjudicated not the father |
|---|---|
| He is a parent with full rights and duties | He has no parental rights or duties to the child going forward |
| The decree sets conservatorship and possession | The decree does not include him in conservatorship or possession for that child |
| He may be ordered to pay child support | He is not ordered to pay support for that child going forward |
| The child can inherit from him | The child’s legal ties to him end |
If the biological father is joined in the case and his parentage is established, the court can set his conservatorship rights, possession and child support. If he is not part of the case, the mother may need a separate suit to establish his parentage and obtain support.
For Husbands
If you suspect you are not the biological father of a child born during your marriage:
- Do not wait. Raise the issue early, ideally in the original petition or your answer.
- Avoid informal “home” DNA tests as your only evidence. Courts rely on testing that follows legal procedures.
- Think carefully about the child’s well-being. Some men choose to remain the legal father despite biology, and the law may allow that.
- Understand that past child support already ordered generally cannot be erased.
For Wives
If you know or believe your husband is not your child’s biological father:
- Disclose it honestly in the divorce. Concealing it can lead to future litigation.
- Consider whether the biological father should be part of the case so support can be established.
- Think about the child’s relationships and stability, including with siblings.
How This Plays Out in Comal County Divorces
These cases are filed like any other divorce, with the Comal County district clerk or the district clerk in your county of residence, such as Guadalupe County for families on the eastern side of New Braunfels. Genetic testing is usually performed through an accredited lab, and the court may order who pays initially. If the child was born during a pending divorce, see our page on divorce while pregnant, and for the effect on the rest of the case, see divorce with children.
Talk With a New Braunfels Family Lawyer
Questions about a child’s parentage are emotional and time-sensitive. New Braunfels Family Law represents clients in Comal County and nearby counties, and we can explain the presumption, the deadlines and the testing process, and help you protect both your rights and the child’s well-being. Call (830) 302-4071 for a free, confidential consultation. Hablamos español.
Frequently Asked Questions
If my wife had a baby with someone else, am I legally the father?
If the child was born during the marriage, Texas law presumes you are the father. That presumption stays in place unless it is rebutted, usually through genetic testing and a court order, or through a valid denial of paternity combined with the biological father’s acknowledgment. Until then, you may be treated as the legal father, including for child support.
How long do I have to challenge paternity?
Generally, a proceeding to challenge a presumed father’s paternity must be brought within four years after the child’s birth under Texas Family Code § 160.607. There is a narrow exception when the spouses did not live together or have sexual relations during the probable time of conception and the husband never openly treated the child as his own.
Can the court refuse to order genetic testing?
Yes, in some circumstances. Texas law allows a court to deny genetic testing when the conduct of the mother or presumed father makes it unfair to disprove the father-child relationship and denying testing is in the child’s best interest. This is fact-specific, especially when the husband has acted as the child’s father for years.
Does the biological father have to be part of the divorce?
Not always, but it is often helpful. Bringing the biological father into the case can allow the court to establish his parentage and child support at the same time. When he is unknown or unavailable, the divorce can still address whether the husband is the father.
What happens to the birth certificate?
After a court order adjudicating parentage, the birth certificate can be amended through Texas Vital Statistics. The process requires a certified copy of the order and the required application.
Last reviewed November 13, 2026. General information only, not legal advice.