Thursday, December 4, 2008

Is the child mine?

This post has nothing to do with those cute birds in the clocks. It has all to do with what I call cuckoo cases. I thought it wise to explain why I use the term cuckoo and so the excerpt from the Wikipedia article:

The cuckoo is a widespread summer migrant to Europe and western Asia, and winters in Africa. It is a brood parasite, which lays its eggs in the nests of other bird species, particularly of Dunnocks, Meadow Pipits, and Reed Warblers.
A cuckoo case is, for me, a case where the child's biological father may not be the husband. Indiana's law on these cases starts with Fairrow v. Fairrow, 559 N.E.2d 597 (Ind. 1990). Father finds out years later - and after paying much support - that he was not the biological father of the child.

Originally, these cases came up in divorces but more recently we are seeing these cases in regards to paternity cases. Paternity of MMB and AWT, State of Indiana v. McKinzie M. Black (Indiana Court of Appeals, 2007; PDF format) at pages 8 -11 describes the Fairrow decision and its history up to late last year.

What happens in these cases is that the father (generally) moves the court to set aside judgment. Setting aside a judgment is a tricky thing at the best of times and here the father comes up against the presumption against disestablishing paternity.

Here is the general rule from Fairrow:
  1. Clear, direct, and convincing medical evidence of nonpaternity;
  2. Evidence independently of court action;
  3. Inadvertently discovering the genetic evidence against the man being the biological father.
The man cannot actively seek the genetic evidence after judgment is entered.

What does this mean for men? An ounce of prevention being worth a pound of cure, here are my suggestions:
  • For those married men who think that a child may not be their own, you need to ask for DNA testing before the Final Hearing.
  • For those unmarried men, it means asking for a DNA test before signing a paternity affidavit or if the affidavit was signed then at the earliest possible date. For on this read my Paternity: child support and paternity affidavits.
Right now I am awaiting a decision out of Grant Superior Court 2 that is slightly different from the Fairrow cases since we are not using Trial Rule but the paternity affidavit statute itself. We are relying on the same case I mentioned in my Paternity: New Case on Setting Aside Paternity.

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