Friday, March 28, 2008

Paternity: Following Up on "Mother Fails In Using Paternity Affidavit Against "Father"

Someone asked how the case I reviewed in Mother Fails In Using Paternity Affidavit Against "Father" when Seger v. Seger from 2002 came to a different result. This question gives me a chance to explain how to read a case.

The facts in Seger are as follows:

  1. The mother and putative father married in April 1996 and lived together until September 11, 2001.
  2. The child was born before the marriage.
  3. Putative father files for divorce and asserts that no children were born of the marriage.
  4. Both parties agreed that putative father was not the biological father.
  5. the trial court entered an order finding, among other things, that the paternity affidavit was executed in a fraudulent manner because both Angela and Rusty knew that Rusty was not C.S.’s biological father.
Mother's argued for upholding the paternity affidavit "because she and Rusty believed that 'signing the Paternity Affidavit made the Husband the minor child’s legal father.'” The Court of Appeals upheld the trial court's setting aside the paternity affidavit.

In In the Matter of the Paternity of H.H., Richard Lucito v. Ericka M. Hughes both parties knew that the man was not the father, neither were married to one another, and the mother sought to set aside the paternity affidavit when the man sought a relationship with the child. The Court of Appeals refused to set aside the paternity affidavit.

Working at home with limited tools, I must admit that there seems to be a major disconnect between Segar and Paternity of H.H.. So how to reconcile the two cases?

First, I find no other case citing Seger. I admit I did a rather crude search of Indiana's online appellate cases but I find the lack of citation of this case surprising. I think I know the reason why but more on that later. For now, let me make the point that Seger does not look like good law and move on.

Ordinarily, I would say that the major difference lies between a paternity case and a divorce case. That might avoid some of the policy points raised in the H.H. opinion (see opinion at page 5-6).

A better clue for research comes from In re the Paternity of E.M.L.G, R.L.J., J.A.J., and N.A.H.:
For example, prior to 2001, Indiana Code section 31-14-7-1 stated that “a man is presumed to be a child’s biological father if . . . (3) the man executed a paternity affidavit in accordance with IC 16-37-2- 2.1.” Relying on this statute, our court held that Indiana Code section 31-14-7-1 provided that the “execution of a ‘paternity affidavit’ operat[ed] to create a legal presumption that the man is the child’s biological father,” and that such presumption could be rebutted. In re Paternity of M.H., slip op. at 4. However, since then, Public Law 138-2001, sec. 6, amended this section by deleting subsection three regarding the presumption for a man who has executed a paternity affidavit.
See page 7 of the opinion. The paragraph following the one quoted above probably damns Seger as good law.

The statute changed since the Seger case. While Seger fails to mention any use of a presumption, that a rebuttable presumption existed at the time of the case does explain the different handling of the case by Indiana's Court of Appeals. More importantly, a change in the statute explains why I cannot find any further citations of Seger.

Of course, what I am describing is raw, first draft research and needs double checking. I hope this little exercise serves a good purpose of showing how several cases can be compared and that with a case based on a statute examine the statute's language and history.


kc said...

do you thnk you can help this mother? do you think this mother wanted the real father to be in the picture? lets say the real dad walk out after finding out she is pregnet. while she is pregnet she mets this man thats going to tell her everthings going to be fine i'll marry you and take care of his child as if it was mine. after giving birth this scared mother signs his name because thats what he tells her to do. after a year this mother relizes she don't love this man has has made a mistake ,he is a real jerk and has not kept any of his promises to her. she gets out for her and her daughters sake. he is not the real father just the legal father how can she get that droped? can you help her?

Sam Hasler said...

Sorry but what mother? All of these cases were decided a while back and have now determined rights. I suggest following my advice in the original post and read the cases.