Thursday, December 11, 2008

Paternity: Checklist for Setting Aside a Paternity Affidavit

Consider this checklist as a work in progress. New cases may come along and change the questions or create new questions. It is also slanted towards a fraud case with only a slight emphasis on mistake of fact. Which means it covers two-thirds of the grounds listed in In re the Paternity of M.M. (See my report of this case here). I may take the time to write why duress will rarely be used as grounds for setting aside a paternity affidavit.

Here is the checklist:

1. Was the affidavit signed more than 90 days ago?

If not, a motion can be filed to set aside the affidavit and request genetic testing.
If so, then go to 2.
2. Has the father had a hearing to set child support?
If not, a motion can be filed to set aside the affidavit and request genetic testing at the time of the hearing.

If so, need grounds of fraud, mistake of fact or duress as grounds for to set aside the affidavit.
3. Has the father reason to believe that the child is not his?

If so, why?
4. Is the reason based on something that he learned outside of court proceedings?
If not, then case ends.
5. Did the mother tell him that he was the only possible father?
Did he believe her?
Was there any reason he should not have?
What was this reason?
How did he become aware of it?
6. Has mother told father that he was not actually the father
7. Has father had any genetic/paternity tests conducted?

8. Do these tests exclude him as father?

9. Generally, why did father sign the paternity affidavit?

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