ILNews

COA mulls 'fraud' in paternity affidavit statute

Michael W. Hoskins
January 1, 2008
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A man's paternity cannot be revoked three years after he and the child's mother fraudulently signed an affidavit establishing that he's the legal father, the Indiana Court of Appeals ruled today.

The court's unanimous ruling paves the way for a possible Indiana Supreme Court interpretation of this particular state statute, which this appellate panel believes was designed to protect a man's paternal rights in the event he was defrauded - not when he was the one doing the deception along with the mother.

Judges ruled on the Porter County case of In the Matter of the Paternity of H.H., Richard Lucito v. Ericka M. Hughes, No. 64A03-0709-431, which dates to the fall of 2003 when Hughes and Lucito started dating. She soon discovered she was pregnant, but both knew Lucito wasn't the father. However, they agreed that he would assume the role of father and in April 2004, the couple signed a paternity affidavit to this effect. The two separated in 2006 and he provided financial support, but the mother later objected to his petition to establish custody, support, and parenting time on grounds that he wasn't H.H.'s biological father.

Lucito asserted he had parental rights pursuant to the paternity affidavit, but the court set aside the affidavit because it was fraudulently executed and denied Lucito's request. State statute allows a court to set one aside after more than 60 days if that affidavit was executed in fraud or a biological test later points out that he wasn't, despite belief.

In today's seven-page decision, Judge Melissa May wrote that the legislature didn't intend Indiana Code 16-37-2-2.1(i) to be used to set aside paternity affidavits executed by a man and a woman who both knew the man wasn't the biological father of the child in the first place.

"Rather, we believe the legislature intended to provide assistance to a man who signed a paternity affidavit due to 'fraud, duress, or material mistake of fact,'" the court wrote.

Under the trial court's ruling, a man could maintain his legal relationship with a child in such a situation only if he had genetic proof of his paternity.

"If a woman may 'use' a man to support her and her children until she tires of him, and then 'dispose' of him as both partner and father, an unwed father would have no guarantee his relationship with a child could be maintained without proof of a genetic relationship. This could not be the intent of the legislature. Neither could it further the public policy of this State, where 'protecting the welfare of children ... is the utmost importance,'" Judge May wrote, citing Straub v. B.M.T. by Todd, 645 N.E.2d 597, 599 (Ind. 1994). "Therefore, once a mother has signed a paternity affidavit, she may not use the paternity statutes to deprive the legal father of his rights, even if he is not the biological father."

The case now goes back to the trial court to decide on issues of custody, support, and parenting time between H.H.'s two legal parents.
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  1. Major social engineering imposed by judicial order well in advance of democratic change, has been the story of the whole post ww2 period. Contraception, desegregation, abortion, gay marriage: all rammed down the throats of Americans who didn't vote to change existing laws on any such thing, by the unelected lifetime tenure Supreme court heirarchs. Maybe people came to accept those things once imposed upon them, but, that's accommodation not acceptance; and surely not democracy. So let's quit lying to the kids telling them this is a democracy. Some sort of oligarchy, but no democracy that's for sure, and it never was. A bourgeois republic from day one.

  2. JD Massur, yes, brings to mind a similar stand at a Texas Mission in 1836. Or Vladivostok in 1918. As you seemingly gloat, to the victors go the spoils ... let the looting begin, right?

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  4. Whether you support "gay marriage" or not is not the issue. The issue is whether the SCOTUS can extract from an unmentionable somewhere the notion that the Constitution forbids government "interference" in the "right" to marry. Just imagine time-traveling to Philadelphia in 1787. Ask James Madison if the document he and his fellows just wrote allowed him- or forbade government to "interfere" with- his "right" to marry George Washington? He would have immediately- and justly- summoned the Sergeant-at-Arms to throw your sorry self out into the street. Far from being a day of liberation, this is a day of capitulation by the Rule of Law to the Rule of What's Happening Now.

  5. With today's ruling, AG Zoeller's arguments in the cases of Obamacare and Same-sex Marriage can be relegated to the ash heap of history. 0-fer

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