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. @ President Snow, like they really read these comments or have the GUTS to show what is the right thing to do. They are just worrying about planning the next retirement party, the others JUST DO NOT CARE about what is right. Its the Good Ol'Boys - they do not care about the rights of the mother or child, they just care about their next vote, which, from what I gather, the mother left the state of Indiana because of the domestic violence that was going on through out the marriage, the father had three restraining orders on him from three different women, but yet, the COA judges sent a strong message, go ahead men put your women in place, do what you have to do, you have our backs... I just wish the REAL truth could be told about this situation... Please pray for this child and mother that God will some how make things right and send a miracle from above.

  2. I hear you.... Us Christians are the minority. The LGBTs groups have more rights than the Christians..... How come when we express our faith openly in public we are prosecuted? This justice system do not want to seem "bias" but yet forgets who have voted them into office.

  3. Perhaps the lady chief justice, or lady appellate court chief judge, or one of the many female federal court judges in Ind could lead this discussion of gender disparity? THINK WITH ME .... any real examples of race or gender bias reported on this ezine? But think about ADA cases ... hmmmm ... could it be that the ISC actually needs to tighten its ADA function instead? Let's ask me or Attorney Straw. And how about religion? Remember it, it used to be right up there with race, and actually more protected than gender. Used to be. Patrick J Buchanan observes: " After World War II, our judicial dictatorship began a purge of public manifestations of the “Christian nation” Harry Truman said we were. In 2009, Barack Obama retorted, “We do not consider ourselves to be a Christian nation.” Secularism had been enthroned as our established religion, with only the most feeble of protests." http://www.wnd.com/2017/02/is-secession-a-solution-to-cultural-war/#q3yVdhxDVMMxiCmy.99 I could link to any of my supreme court filings here, but have done that more than enough. My case is an exclamation mark on what PJB writes. BUT not in ISC, where the progressives obsess on race and gender .... despite a lack of predicate acts in the past decade. Interested in reading more on this subject? Search for "Florida" on this ezine.

  4. Great questions to six jurists. The legislature should open a probe to investigate possible government corruption. Cj rush has shown courage as has justice Steven David. Who stands with them?

  5. The is an unsigned editorial masquerading as a news story. Almost everyone quoted was biased in favor of letting all illegal immigrants remain in the U.S. (Ignoring that Obama deported 3.5 million in 8 years). For some reason Obama enforcing part of the immigration laws was O.K. but Trump enforcing additional parts is terrible. I have listed to press conferences and explanations of the Homeland Security memos and I gather from them that less than 1 million will be targeted for deportation, the "dreamers" will be left alone and illegals arriving in the last two years -- especially those arriving very recently -- will be subject to deportation but after the criminals. This will not substantially affect the GDP negatively, especially as it will take place over a number of years. I personally think this is a rational approach to the illegal immigration problem. It may cause Congress to finally pass new immigration laws rationalizing the whole immigration situation.

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