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. File under the Sociology of Hoosier Discipline ... “We will be answering the complaint in due course and defending against the commission’s allegations,” said Indianapolis attorney Don Lundberg, who’s representing Hudson in her disciplinary case. FOR THOSE WHO DO NOT KNOW ... Lundberg ran the statist attorney disciplinary machinery in Indy for decades, and is now the "go to guy" for those who can afford him .... the ultimate insider for the well-to-do and/or connected who find themselves in the crosshairs. It would appear that this former prosecutor knows how the game is played in Circle City ... and is sacrificing accordingly. See more on that here ... http://www.theindianalawyer.com/supreme-court-reprimands-attorney-for-falsifying-hours-worked/PARAMS/article/43757 Legal sociologists could have a field day here ... I wonder why such things are never studied? Is a sacrifice to the well connected former regulators a de facto bribe? Such questions, if probed, could bring about a more just world, a more equal playing field, less Stalinist governance. All of the things that our preambles tell us to value could be advanced if only sunshine reached into such dark worlds. As a great jurist once wrote: "Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman." Other People's Money—and How Bankers Use It (1914). Ah, but I am certifiable, according to the Indiana authorities, according to the ISC it can be read, for believing such trite things and for advancing such unwanted thoughts. As a great albeit fictional and broken resistance leaders once wrote: "I am the dead." Winston Smith Let us all be dead to the idea of maintaining a patently unjust legal order.

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