Wednesday, January 28, 2015

Petition to Rescind or Vacate an Indiana Paternity Affidavit - Court of Appeals Opinion

In a recent published opinion the Indiana Court of Appeals addressed the issue of whether a trial court should have granted a father’s petition seeking to rescind or vacate the paternity affidavit which he executed while he was a minor. Generally, minors are not considered competent to make important legal decisions or be held accountable for their actions. This is why minors may not contract and that proceedings for crimes committed by minors are initiated in a juvenile court. As for signing a paternity affidavit there is no requirement that the father be an adult or that an adult or guardian sign on his behalf. In the instant case the father was age 17 when he signed the paternity affidavit [1998] and he did so without counsel. It is upon Father’s challenge to the affidavit that he was under duress when he signed it and did not make an informed decision.

At the time Father executed the paternity affidavit, the Indiana statute provided two ways to establish paternity: either through filing an action for paternity [I.C. 31-14 et seq] or by executing a paternity affidavit [I.C. § 16-37-2-2.1]. The statute provided that “Immediately before or after the birth of a child who is born out of wedlock, a person who attends or plans to attend the birth, including personnel of all public or private birthing hospitals, shall: (1) provide an opportunity for: (A) the child’s mother; and (B) a man who reasonably appears to be the child’s biological father; to execute an affidavit acknowledging paternity of the child[.]” [I.C. § 16-37-2-2.1(1998)]. Any request for genetic testing must be made within sixty days after a paternity affidavit is executed. [I.C. § 16-37-2-2.1(k)(1998)]. “A paternity affidavit that is properly executed [] may not be rescinded more than sixty (60) days after the paternity affidavit is executed except in cases of fraud, duress, or material mistake of fact.” [I.C. § 16-37-2-2.1(i)(1998)].

In this instant case Father alleged that he was under duress and that there was fraud or mistake of fact. Particularly, Father alleged when executing the paternity affidavit, he was seventeen years of age, lived in a foster home, and no parent or guardian was present when he visited Mother and baby in the hospital. Further, he was excited and wanted to see the baby. He readily admitted to having engaged in sexual intercourse with Mother. He stated that, during the visitation, a nurse handed him the paternity affidavit to sign. In establishing mistake or fraud he stated that he believed that signing the affidavit merely would give the child his last name. In establishing duress Father testified that at the time he “actually signed the affidavit,” Mother and Grandmother told him that he would never see the baby if he “didn’t man up and do what [he] was supposed to do. And that they’d go to the group home; run to the news and tell them I’m a child in the group home that had sex with her daughter, and she’d get the group home closed down and things like that.”

Furthermore, Father argued to the appellate panel that while acknowledging that the current statute with regard to the execution of paternity affidavits is not applicable, he should received special consideration because a subsequent “change in the law [] highlights the problematic and coercive situation [Father], a minor, was operating under[.]” It is precisely a scenario like that which father espouses that I envisioned when seeking a modification in the law, which was amended in the year 2010, to include a provision for counsel to a minor.

That section added to statute, now current, states that:
An individual who is (1) a (A) child’s mother; or (B) person identified as the father []; and (2) less than eighteen (18) years of age; must have an opportunity to consult with any adult chosen by the individual regarding the contents of a paternity affidavit before signing the paternity affidavit under this section. A signed paternity affidavit is voidable if the individual does not have the opportunity to consult with an adult chosen by the individual [I.C. § 16-37-2-2.1(t)(1)].

Of import is that the affidavit is now voidable if the minor did not have an opportunity to consult with any adult of his or her choosing prior to signing. Voidable still requires court action. The consultation is optional and the adult providing counsel need have no special expertise. The non-mandatory provisions were made to be so to allow for there to be less of a barrier to getting both parents identified as early as practical.

In the instant case though Mother disputed Father’s testimony that he was unaware of the contents or purpose of the document and did consult with an adult. Mother testified that upon handing Father the paternity affidavit for his signature, the nurse explained “everything” to “both of them.” Also, Mother clarified that prior to signing, Father telephoned his mother and stated to her that “Mom, I know the child is mine, I don’t care what you say and I’m going to sign the papers.”

Based upon the conflicting evidence the trial court was in the position of weighing the evidence and judging witness credibility. Father’s appeal is essentially asking the appellate panel to do just that. The reviewing courts have long held that “We neither reweigh the evidence nor judge the credibility of the witnesses.” [Perkinson v. Perkinson, 989 N.E.2d 758, 761 (Ind. 2013)]. After the trial court denied Father’s request he filed with the trial court a Motion to Correct Errors from which the court’s decision upholding its initial conclusion was the basis for the appeal. The trial court’s decision on a motion to correct error comes to an appellate court cloaked in a presumption of correctness, and the appellant has the burden of proving that the trial court abused its discretion. [Petersen v. Burton, 871 N.E.2d 1025, 1028 (Ind. Ct. App. 2007)].

At the time Father challenged the paternity affidavit the child was 15 years of age, Father had been exercising court ordered parenting time for 13 years, and Father’s recent attempts to get child support payments reduced had failed. While there are proper reasons and times for challenging a paternity affidavit I agree with the trial court that this was not one. Time and again, the appellate courts have emphasized that allowing a party to challenge paternity when the party has previously acknowledged himself to be the father should only be allowed in extreme and rare circumstances. [In re Paternity of R.C., 587 N.E.2d 153, 157 (Ind. Ct. App. 1992)]. This is because it gives the child a filius nullius status -- being the child of no one. This was not one of those rare circumstances.

In crafting the language of Indiana’s New Paternity Law I felt satisfied in maintaining the sixty day period to challenge the affidavit. I based this upon it being sufficient time for the euphoria or general emotion that may override rational thinking to have subsided or for information contradicting parentage to surface. Although neither court specifically addressed it, I feel that after 15 years of being a father to the child it is absolutely improper to challenge paternity even if genetic testing proves the man to not be the biological father of the child. In this instant case Father did not challenge his status as the biological father. Notwithstanding, allowing paternity to be rescinded at such a substantial time after the man has acted as a father to the child would be equivalent to an adoptive parent suddenly proclaiming that I am not the child’s biological parent and no longer want to continue my role as the child’s parent. Therefore, the child can go find a new parent.

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