Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Friday, October 28, 2005

Case Law Development: Collateral Estoppel Bars Consideration of Questionable Paternity in Setting Amount of Child Support

Mother gave birth to child four months after separating from Father. The couple remained separated but did not divorce. When child was eight years old, Father agreed to an order of child support, which also adjudicated him the biological father. Five years later, in response to a motion to increase child support, Father obtained a private genetic test which showed that he was likely not the biological father. On this basis, Father asked the trial court to disestablish his paternity. While the trial court declined to do so, it did set the amount of future child support at zero on the basis that Father was "probably not the biological "may not be the biological father of the minor child."

The Texas Court of Appeals (Houston) reversed, holding that the doctrine of collateral estoppel barred Father's relitigation of paternity and the consideration of this issue was error by the trial court. The court noted that Father could have raised the issue of his paternity in the first action for child support but chose not to.  The court commented that allowing relitigation of paternity would "burden the courts and traumatize the child."

Judge Hudson dissented.  Judge Hudson would have deferred to the discretion of the trial court in setting child support at zero and suggested, even more broadly, that "the welfare of children should not fall upon one who is merely a victim of fraud.... reliance upon the doctrines of collateral estoppel and res judicata seem inappropriate in the context of a parent-child relationship."

In the Interest of R.J.P., 2005 Tex. App. LEXIS 8792 (October 25, 2005)
Opinion on the web at (last visited October 28, 2005 bgf)

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