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In our last column we discussed recent developments in paternity actions in which a man was attempting to establish his parental rights over the objection of the mother or presumed father of the child. [NLJ, May 28.] We now turn our attention to those instances in which a man attempts to disaffirm his paternity of a child. This aspect of the law has been the focus of much commentary recently. Nationwide there is a growing movement toward the provision of remedies for men who wish to disaffirm their paternity in order to avoid paying child support for children. This occurs most frequently after they discover that the child is not genetically related to them. On the other sides of the issue are the government, which is concerned about the financial support of children, and advocates for mothers and children, who assert that a child may be harmed when a person whom he or she has come to know as a father disaffirms paternity. The issue can arise in several different contexts. The first is where a child is born during a marriage. The common law presumption adopted by statute in most states is that the husband is the father of the child. This presumption can be rebutted, but there are often limits on both the time in which this can be accomplished and the parties who may do so. On occasion a husband may raise the issue of paternity at the time of the dissolution. He is generally permitted to so particularly if he had been misled as to the paternity of the child by the mother during the marriage. More troubling, however, are those cases in which the father does not raise the issue until sometime after he is obligated to pay support by the divorce court. In those circumstances the courts seem to be divided as to whether he can disaffirm his paternity in order to escape his financial obligations. Some states hold that the doctrines of res judicata or collateral estoppel apply to paternity assertions made at the time of the divorce. Opening judgments through fraud or mistake More recently, fathers are relying on statutes that permit the opening of judgments on the basis of fraud or mistake. Whether a misrepresentation of paternity rises to the level of “fraud or material mistake” has been the subject of numerous court proceedings. In Parker v. Parker, 950 So. 2d 388 (Fla. 2007), the husband failed to raise the issue of paternity at the time of the divorce, but two years later sought to open the judgment and sought damages from the wife based on her misrepresentations. The Florida Supreme Court rejected his claim, finding that the claim of fraud related to an issue that was pertinent to the initial action (intrinsic fraud), and would therefore have had to have been raised within one year of the adjudication. Other courts find that the father’s subsequent conduct may bar him from denying paternity. For instance, in S.R.D. v. T.L.B., Formerly T.L.D., 174 S.W.2d 502 (Ky. Ct. App. 2005), the former husband was equitably estopped from denying legal parentage when he waited to raise the issue six years after he learned that he may not be the child’s biological father. In the meantime, he continued to have a relationship with the child and even asked the court to allow him to continue visiting the child while at the same time relieving him of the obligation to support her. The court focused on the best interest of the child, finding among other things that the former husband’s dilatory conduct could have prejudiced the child by precluding a search for the actual biological father. The more common scenario concerning disaffirmation occurs after an acknowledgment of paternity is signed by the alleged father or a default judgment is entered against him when he fails to appear for genetic testing. It is these cases that have brought public attention to the issue. Father’s rights advocates argue that it is fundamentally unfair to require a man to support a child that is not biologically his in spite of the fact that he signed an acknowledgment or averted the legal process by which he could challenge the finding. Their pleas have been heard by state legislatures in states such as California, Florida and Georgia. In other states, the courts have been responsive. For instance, in State ex rel. Taylor v. Wilson, 2005 WL 517548 (Tenn. Ct. App. 2005), the Tennessee Court of Appeals permitted a father to disaffirm paternity even after he had filed an acknowledgment and did not request DNA testing. The court held that Tennessee law strongly favors requiring biological parents to bear responsibility for their own children, and this policy also favors relieving putative fathers of the burden of supporting children who have been shown, through conclusive evidence such as DNA testing, not to be their natural offspring. Tennessee has recently extended this holding to a father who waited eight years after a paternity establishment to disaffirm. The court noted ameliorating factors such as the alleged father was in the military during the time in question and his prior request for paternity testing had been denied. It also noted that he had no relationship with the child. Coppage v. Green, 2007 WL 845909 (Tenn. Ct. App. 2007). In Maryland, the state Legislature, in response to a court opinion rejecting a disaffimance based on genetic testing, passed a statute that allowed any putative father to set aside a paternity judgment based on genetic tests alone. The state’s highest court found that the statute could be retroactively applied and that the best interests standard was irrelevant when DNA tests excluded the legal fathers as the biological fathers. Langston v. Riffe, 754 A.2d 389 (Md. 2000). At least two other approaches have been taken with respect to this issue. Some states, such as Delaware, Oklahoma, Texas, Washington and Wyoming, have adopted short time limits (usually two years) during which paternity can be challenged. These laws modeled on the revised Uniform Parentage Act seek to protect both parents and children by having an early answer to the paternity question. This allows paternity to be established (or disestablished) before significant emotional bonds are formed and during appropriate legal proceedings. Such time limits also minimize the opportunity for reliance to be established. Other jurisdictions use a “best interest” standard that requires a balancing of the equities. In Weaver v. Malone, 2006 WL 2730452 (Conn. Super. Ct.), the mother bore a child out of wedlock and then sought welfare benefits from the state. In accordance with federal and state regulations she was required to name the alleged father, who was then served with a petition alleging that he had refused and neglected to admit the paternity of the child. He appeared in court, denied paternity and requested genetic testing. He failed to appear thereafter and a default judgment of paternity was entered against him. Seven years after the judgment was entered, the respondent learned through genetic testing that the child was not biologically his and he sought a disaffirmation. The mother opposed the motion because the child believed the respondent to be her father and the mother wished for the relationship to continue. By this time the mother was married to the biological father, who the child regarded as a stepfather. The state opposed the motion, asserting its interest in collecting past-due arrearages and preserving a seven-year judgment. The child’s attorney also opposed the motion, arguing that principles of res judicata should apply, preventing relitigation of the paternity judgment. A balanced ruling in a complicated case The court undertook a thoughtful analysis of all the interests involved. It recognized that the best interest of a child may not always be served by limiting consideration of parenthood to biology alone. It also recognized that relying on principles of estoppel may not be equitable because a parent who has fulfilled his obligations and formed a bond with the child may be “punished” by denying him the opportunity to disaffirm while a parent who avoided his obligations and formed no relationship with the child might be “rewarded” because there would be no emotional loss to the child by his disaffirmance. Finally, the court indicated that those who fail to avail themselves of the genetic testing available to them should be held to the consequences of their acts. In conclusion, the court suggested that the proper analysis would include a consideration of the genetic information available; the past relationship between the child and the man seeking to disaffirm; the benefits of a future relationship with the biological father, including access to medical information and support; and the potential harm that the child might suffer as a result of disturbing the paternity judgment. In the end, the court settled on an unusual result that rejected the father’s request for disaffirmance but discontinued his future obligation to support while requiring him to make payments on the arrearages. Most men who are attempting to disaffirm their paternity are doing so to be relieved of continuing financial obligations. Some asking in addition to have past arrearages discharged or to have custodial parents reimburse them for monies unjustly paid. Again, states are divided on this issue. The Maryland high court that retroactively applied the disestablishment of paternity on the sole evidence of exclusionary test results later vacated all prior financial arrearages in a disaffirmance case. Walter v. Gunter, 788 A.2d 609 (Md. 2002). Mary Kay Kisthardt is a professor of law at the University of Missouri-Kansas City School of Law. She can be reached at [email protected]. Barbara Handschu is a solo practitioner with offices in New York City and Buffalo, N.Y. She can be reached via e-mail at [email protected].

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