FATHER FOREVER

October 4, 2011 § 7 Comments

I posted here about the new statutory procedure to disestablish paternity.

One of the interesting aspects of the new code section is that it enumerates the reasons that would disqualify a father from attempting to prove he is not the father.

The flip side of the coin, then, is that these are the bases that conclusively establish paternity and preclude the mother or anyone else from denying his parentage. From the statute, the man is the father if he did any one of the following:

(a) Married or cohabited with the mother and assumed parental obligation and support of the child after having knowledge that he was not the biological father;

(b) consented to be named as father on the birth certificate or signed an acknowledgment of paternity and failed to withdraw within the time periods mandated by MCA §§ 93-9-9 and 93-9-28, unless he can prove fraud, duress, or material mistake of fact;

(c) signed a stipulated agreement of paternity that has been approved by order of the court;

(d) signed a stipulated agreement of support that has been approved by order of the court after having knowledge that he is not the biological father;

(e) had been named as legal father or ordered to pay support after he declined to undergo genetic testing; or

(f) failed to appear for a genetic testing draw pursuant to a valid court order.

I am not aware of any other place where these bases for paternity have before been listed in such a handy form.

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§ 7 Responses to FATHER FOREVER

  • LaJuanda Griffin says:

    Greetings Judge,

    I have an interesting case before where the father is petitioning the Warren County chancery court to order his 21 year old daughter to take a paternity test “just to see” if she is his biological father. The father has consented to be named as father on the birth certificate and signed an acknowledgment of paternity, has paid child support for all 21 years and failed to withdraw within the time periods mandated by MCA §§ 93-9-9 and 93-9-28 He cannot prove fraud, duress, or material mistake of fact because he has admitted that although he had some doubt as to whether she was his biological daughter, he still went along with being her “dad” because this was his mom’s first grandchild.

    What I want to know is the best way to proceed on this as her attorney and whether the judge can order the daughter to take the test. Any advice will be much appreciated. Thank you for the much-needed information in your blog posts.

    • Larry says:

      I don’t find your name in the bar directory, and I note that your email address does not match your name. I can’t give legal advice.

      • LaJuanda Griffin says:

        My name is actually listed as LaJuanda Williams-Griffin in the bar directory. I’m emailing you from my personal email because my work email is down at the moment. I’m actually a Judicial Clerk, clerking for Judge Owens in Hinds County, however, this was a case that I handled while in private practice.

  • Dianne Ellis says:

    I have the opposite problem. My client is the legal father of a one-year-old child and considers the child to be his. He was married to the mother at the time of conception and was aware he was not the biological father. My client is now divorcing and the biological father (and the mother) are seeking to disestablish the legal father’s paternity in a separate action from the divorce. It seems to me that the biological father does not have standing to do this. Am I missing something?

    • Larry says:

      I think you have a good point. I don’t really have time to dig around for this right now, but I have done several posts on parentage and disestablishing parentage. You might search for those. Also, read the statute carefully. THere is a dearth of case law on it right now, so the language of the statute is especially important. Good luck.

  • nightshift66 says:

    As a child support attorney for MDHS, I very much appreciate your blog and your insights and takes on chancery practice. This week I was brought in on a suit for disestablishment of paternity, which was my first such case under the new statute 93-9-10.

    It seems that a non-biological legal father is going to be barred from disestablishment if he knew at the time he accepted paternity that he wasn’t, or might not be, the biological father. But the situation I expect to see most often is when more than a year has passed since the petitioner legally acknowledged his paternity and now must prove “fraud, duress, or material mistake of fact” to avoid immediate dismissal of his suit. The first two conditions are defined clearly enough under the law, but I am curious what will be found to constitute material mistake of fact for purposes of this statute. My initial thought is that a mere assertion that he was mistaken in his belief that he was the child’s biological father shouldn’t be sufficient; men would assert that to get around the time bar whether or not it was true. If you saw fit to post on that topic, I would find it interesting and useful.

    Thank you again for your useful blog.

    • Larry says:

      I’m glad the blog is helpful for you.

      Not sure what the answer to the question is without some research. If I run across some case(s), I will try to put up a post addressing this.

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