Saturday, February 2, 2008

Mother Fails In Using Paternity Affidavit Against "Father"

Unlike the usual case attacking paternity affidavits, In the Matter of the Paternity of H.H., Richard Lucito v. Ericka M. Hughes (PDF format) has a woman and man both knowing that man was not father and the trial court setting aside the paternity affidavit after the man petitioned to establish custody, support, and parenting time of the child.

The Indiana Court of Appeals reversed the trial court. The Court of Appeals held that Ind. Code § 16-37-2-2.1(i) applies only when the mother fraudulently conceals the child's paternity from the alleged father. Neither the statutory language nor public policy supported setting aside a paternity order that was three years old.

Lucito is the only father H.H. has ever known. He was there when she was born, has provided for her financially and emotionally since her birth, and has continued to visit and support her after his separation from Hughes. He is her legal parent and has assumed all responsibilities attendant thereto. Changing his legal status at this late date is not in the best interests of H.H., Lucito, or our State.
Bottom line? Be very, very careful when signing off on a paternity affidavit, but I have tried to make that point before here and here.


Anonymous said...

No where in the appeal does it call out that two party fraud is not a reason to throw out a paternity affidavit. What the appeal says is that the man can have it rescinded due to fraud (either known or unknow) but the woman cannot "revoke" his paternity rights by claiming fraud. It is to protect the rights of fathers that sign and want to be a part of the child's life even if the mother wants to do away with the affidavit and "throw away" the father. Bottom line is the man upon signing the affidavit has the right to keep the affidavit if he wants to in the case of fraud. The woman does not have the right to call "fraud" and rescind the affidavit.

Sam Hasler said...

Yes, you have a point but also miss a couple of others. If the father has tried to get out from under the paternity affidavit, the same reasoning would have left him stuck. The law is about applying the facts of the case to the law of the case. In other words, father got lucky. Which is why I made the point of being careful when signing paternity affidavits.

Anonymous said...

When the Mother and "Father" sign the paternity affidavit knowing that it is false, they commit fraud against the child as well as the biological father (if not informed of the situation). Using the 5 requirements of legal fraud:
1) The mother and father made a false statement of a material fact.
2) Knowledge on the part of the mother and father that the statement was untrue.
3) Intent to deceive the child.
4) The child relies on the statement to define who his/her father is.
5) Injury to the child in the form of mental anguish and suffering when the reality is brought to light either because of guilt on the part of the mother and/or father or a medical need that only the true biological father can fulfill. The basic interactions with the real father ("memories") have been stolen from the child by the lie.
The proper avenue for this sort of sham would have been in an adoption proceeding. The biological father would have been notified and everything would have been done properly.
Indiana needs to mandate that is a Paternity Affidavit is signed an accompanying genetic DNA must be completed before the Affidavit becomes affective.
This eliminates the Fraud of either mother or father and guards the child from damages and potential heartache. If you know the child is not yours file an adoption through the proper channels.

Sam Hasler said...

Interesting idea about the fraud on the child.

I like better requiring some sort of testing along with the affidavit - although the affidavit was meant to streamline matters. We are seeing where too much streamlining goes.

The courts will not add this requirement - it is up to the legislature.