COA mulls 'fraud' in paternity affidavit statute

Michael W. Hoskins
January 1, 2008
Back to TopCommentsE-mailPrintBookmark and Share
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.

Post a comment to this story

We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
You are legally responsible for what you post and your anonymity is not guaranteed.
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
Subscribe to Indiana Lawyer
  1. Lori, you must really love wedding cake stories like this one ... happy enuf ending for you?

  2. This new language about a warning has not been discussed at previous meetings. It's not available online. Since it must be made public knowledge before the vote, does anyone know exactly what it says? Further, this proposal was held up for 5 weeks because members Carol and Lucy insisted that all terms used be defined. So now, definitions are unnecessary and have not been inserted? Beyond these requirements, what is the logic behind giving one free pass to discriminators? Is that how laws work - break it once and that's ok? Just don't do it again? Three members of Carmel's council have done just about everything they can think of to prohibit an anti-discrimination ordinance in Carmel, much to Brainard's consternation, I'm told. These three 'want to be so careful' that they have failed to do what at least 13 other communities, including Martinsville, have already done. It's not being careful. It's standing in the way of what 60% of Carmel residents want. It's hurting CArmel in thT businesses have refused to locate because the council has not gotten with the program. And now they want to give discriminatory one free shot to do so. Unacceptable. Once three members leave the council because they lost their races, the Carmel council will have unanimous approval of the ordinance as originally drafted, not with a one free shot to discriminate freebie. That happens in January 2016. Why give a freebie when all we have to do is wait 3 months and get an ordinance with teeth from Day 1? If nothing else, can you please get s copy from Carmel and post it so we can see what else has changed in the proposal?

  3. Here is an interesting 2012 law review article for any who wish to dive deeper into this subject matter: Excerpt: "Judicial interpretation of the ADA has extended public entity liability to licensing agencies in the licensure and certification of attorneys.49 State bar examiners have the authority to conduct fitness investigations for the purpose of determining whether an applicant is a direct threat to the public.50 A “direct threat” is defined as “a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices or procedures, or by the provision of auxiliary aids or services as provided by § 35.139.”51 However, bar examiners may not utilize generalizations or stereotypes about the applicant’s disability in concluding that an applicant is a direct threat.52"

  4. We have been on the waiting list since 2009, i was notified almost 4 months ago that we were going to start receiving payments and we still have received nothing. Every time I call I'm told I just have to wait it's in the lawyers hands. Is everyone else still waiting?

  5. I hope you dont mind but to answer my question. What amendment does this case pretain to?