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Paternity: New Case on Setting Aside Paternity

Not having had time today to catch up on my reading, I dropped in on The Indiana Lawyer Blog to find this:

In In re the Paternity of M.M.; Bryan F. v. Liana M. , a 6-page opinion, Judge Bailey writes:

Bryan F. (?Bryan?) appeals the denial of his motion to rescind a paternity affidavit and request for paternity testing. We reverse and remand for court-ordered genetic testing. * * *

Here, Bryan testified without contradiction that Liana advised him he was the only potential father of M.M. Two genetic tests showed otherwise. Thus, Bryan provided unrefuted testimony of circumstances amounting to either fraud or a material mistake of fact.1 He was the victim of either Liana?s intentional deception or misapprehension of the critical fact of paternity. This, however, can only satisfy the first prong of Indiana Code Section 16-37-2-2.1(i). A paternity affidavit may not be rescinded unless the court, at the request of the legal father, has ordered a genetic test, and the court-ordered test indicates that the man is excluded as the father of the child. See Ind. Code § 16-37-2-2.1(i)(2). Bryan?s request for genetic testing was summarily denied, apparently due to the trial court?s perception that disestablishment of paternity contravenes public policy. As previously discussed, however, some extraordinary circumstances will permit a challenge to paternity despite the strong public policy in favor of the establishment of paternity.

We reverse and remand with instructions to the trial court to order a genetic test in accordance with Indiana Code section 16-37-2-2.1(i)(2).

I will see if there is more to add but this could be an important case. Right now, though, I think anyone thinking they have this problem focus on two words: "extraordinary circumstances".

Full post as published by Sam Hasler's Indiana Divorce & Family Law Blog on July 08, 2008 (boomark / email).