Sunday, December 9, 2007

Paternity: New Case - About Filing By Next Friend

Last week, the Indiana Court of Appeals dealt with who is the next friend for filing a paternity petition. The case is Matter of the Paternity of J.R.W.; Kevin L. Jemerson & Mamie Darlene Jemerson v. Jack Watterson & Nathanial Green (PDF format).

Putting the facts as simply as possible:

  1. Mother dies leaving two children and a Will nominating sister as guardian of the two children instead of her former husband (Jack).
  2. Former husband was the biological father and the presumptive father of another (there was a paternity affidavit and this child was treated as a child of the marriage when the mother and father divorced.).
  3. Sister files guardianship before mother's death and trial court grants guardianship over objection of former husband.
  4. Former husband appeals.
  5. Guardians have a paternity test and find biological father of the child for which there was a paternity affidavit and then file a paternity petition as Next Friend.
  6. Court of Appeals reverses trial court on guardianship.
  7. Presumptive father moves to dismiss paternity petition and then files second motion to dismiss on the grounds of standing.
  8. Trial court agreed with presumptive father by dismissing the guardian's paternity petition.
The Court of Appeals holds that the person filing a paternity petition by next friend status must be one of the following:
  1. A parent.
  2. A prosecutor.
  3. A guardian.
The guardians lost the ability to file as next friend upon dissolving of the guardianship. Then the Court of Appeals went a step further:
Moreover, we do not find that a next friend is required under the facts and circumstances surrounding this case. According to American Jurisprudence,
As a general rule, a next friend for an infant plaintiff is required only when the infant is without a parent or general guardian, since ordinarily it is the duty of the parent or general guardian of an infant to institute and prosecute an action on behalf of the infant for the protection of his rights.
42 Am. Jur. 2d Infants § 158 (2000). Under the circumstances, the Jemersons cannot reasonably argue that J.W. is without a parent. We have previously found “no persuasive grounds for treating Jack as anything other than a natural parent” to J.W. and B.W. Watterson at 7. Moreover, since our decision, the Jemersons have advanced proof to a near certainty that Green is J.W.’s biological father.

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