Tuesday, April 7, 2009

Indiana Paternity Law: An Oddity or Not?

While researching a Motion to Correct Errors for a case under our paternity affidavit statute (go here for all my articles on paternity affidavits), I found Opp v. Davis 133 Ind.App. 365, 179 N.E.2d 298 (1962). The case talks about the social problems of illegitimate children. While the case does not directly touch on my case, I cannot let it go. I do think it has some thing to say to us but in subtle way.

Here are the points I found most interesting. Pardon the length of the quotes and emphases are mine.

...The case, on appeal, is fraught with difficulty which apparently arises out of the change in phraseology and purpose found in said § 3-640, Burns' 1946 Replacement, and § 3-623 thereof, being §§ 1 and 18, ch. 112, Acts 1941, from the phraseology employed in the prior act of 2 R.S.1852, §§ 1 to 22, inclusive, as amended, which were formerly designated as §§ 3-601 to 3-622, Burns' Ann.Sts. The said sections of the latter mentioned act were repealed by § 35 of ch. 112, Acts 1941. The former act, now repealed, was commonly referred to as the 'bastardy' act, and in Saint v. State ex rel. Hosier (1879), 68 Ind. 128, it was held to be a 'civil proceeding' and that 'new trials' could be granted as in other civil cases. The proceedings thereunder were initiated before a 'justice of the peace' by 'any woman' who has been delivered of, or is pregnant with, a 'bastard' child.It may be fair to say that the commonly known opprobrium which unfailingly attached to the defenseless children born as such 'bastard' children, and which frequently attached to innocent, but live-laden and deceived, young girls, and often attached to guiltless, but designed upon, males, exerted a motivating influence for the enactment of said ch. 112 of the Acts of 1941, which, as before stated, repealed the old 'bastardy' act in toto, and also enacted more adequate provisions for the protection of such children and relaxed the rigid code rules of trial procedure which prevailed under the old act of 1852. The whole act, 1941, evinces a consciousness by the Legislature of the fact, as stated by our Supreme Court, that cases of this type, as in juvenile cases, present problems that are 'social rather than legal.' Quotation from State ex rel. Gannon v. Lake Circuit Court et al. (1945), 223 Ind. 375, 385, 61 N.E.2d 168... Consonant, also, with the evident legislative intent to cast these proceedings in a cloak of respectability free from 'scourge of the tongue' (Job 5:21), it is provided in § 3-638, Burns' 1946 Replacement, that 'The court shall exclude the general public from the hearing

The phases of the 1941 act to which we have made reference, together with others that could be mentioned, can lead only to the logical legal conclusion that by the new act of 1941 the legislature sought to wipe out the apparent social inequities of the old act and relax the strict, formal, and rigid rules of trial and grounds for new trial which prevailed under judicial construction of the former act. It is to be noted, also, that the 1941 act in no part thereof provides for a 'trial', with its usual legal connotations. Throughout, it provides only for a 'hearing.' It is a rule of statutory construction that a change of phraseology from that of the original act 'will raise the presumption that a change of meaning was also intended.' Chism et al. v. State of Indiana (1932), 203 Ind. 241, 244, 179 N.E. 718, 719. In changing the provisions of the old act, which had been interpreted by the courts to require a formal trial and a motion for new trial for purposes of a review of the proceedings, to that of a hearing and motion for a new hearing of such proceedings, there can be no more than fragmentary doubt that the end sought thereby was to afford the greatest reasonable latitude in paternity proceedings for the ascertainment of the truth of the accusation made and the consequent protection and welfare of the guiltless children....

Opp v. Davis at 299- 300. And then there is:
...But because of the intimate nature of paternity cases such as this and the almost uncontrovertible ease with which a male may be charged with and found to be the father of an illegitimate child, it seems requisite, in cases such as the present where there exists inferences of access by others than the accused, that such finding should be predicated upon something more than conjecture, chance, or the mere opinion of the mother that the person charged is the father....
Opp v. Davis at 302.

I am bothered by the thought that we are back to the days described in Opp with our use of paternity affidavits.

Oh, for any men thinking we are put upon in paternity cases, let me state that the older paternity statutes allowed for jail time. As always, the law cuts both ways.

Remember, if you want more information about retaining me for a case, please give me a call at 765-641-7906.

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