Monday, February 1, 2010

Getting Divorced and Wife Pregnant - How Not to Rebut Presumption of Paternity

The law setting out the presumption of paternity is found at Indiana Code section 31-14-7-1. This 2004 Indiana Court of Appeals opinion, Richard v. Richard, 812 NE 2d 222, gives us an idea of how not to address a questionable child of the marriage:

In the case at bar, Carl and Carmen's divorce was finalized on September 15, 2000, and C.R.R. was born on June 1, 2001—well within the 300 day period set forth in I.C. § 31-14-7-1(1)(B). In addition, DNA testing indicated that there is a 99.999% probability that Carl fathered C.R.R. Nevertheless, the presumption may be rebutted by direct, clear, and convincing evidence that the husband: (1) is impotent; (2) was absent so as to have no access to the mother; (3) was absent during the entire time the child must have been conceived; (4) was present with the mother only in circumstances which clearly prove there was no sexual intercourse; (5) was sterile during the time the child must have been conceived; or (6) can show that the DNA test of another man indicates a 99% probability that the man is the child's father combined with uncontradicted evidence that the man had sexual intercourse with the mother at the time the child must have been conceived. Minton v. Weaver, 697 N.E.2d 1259, 1260 (Ind.Ct.App.1998), trans. denied. However, the record reveals no such evidence here.

To the contrary, Carl's testimony shows that, although he adamantly denies having sex with Carmen, he had access to her during the period of time that C.R.R. would have been conceived. Likewise, he presented no evidence that he was impotent or sterile. Our supreme court has previously held: "[f]or the putative father to merely state that he did not have relations with his wife when he had opportunity to, regardless of the quality or credibility of his testimony, is not sufficient to set aside the presumption." L.F.R. v. R.A.R., 269 Ind. 97, 99, 378 N.E.2d 855, 857 (Ind.1978).

Despite Carl's contentions, we find nothing in Charles' testimony that constitutes 228 the direct, clear, and convincing proof necessary to overcome the statutory presumption that Carl is the biological father of C.R.R. See Minton, 697 N.E.2d at 1260. Thus, in the same vein that our supreme court has held that a putative father cannot overcome the presumption by merely denying he had relations with his wife, we hold that Carl cannot overcome the statutory presumption of paternity by merely presenting testimony of his identical twin brother that the child is probably his and he is willing to pay child support. See L.F.R. 378 N.E.2d at 857. As a result, we hold that the trial court committed no error in determining that Carl is the biological father of C.R.R.

No comments: