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Divided high court affirms DNA unnecessary to establish paternity

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Indiana Supreme Court justices split 3-2 in affirming that DNA evidence is not required to establish paternity.

Justices issued a published order Thursday in In RE the Paternity of I.B.: K.H. v. I.B., b/n/f L.B., 34A02-1305-JP-401, denying transfer of a Howard Circuit ruling affirmed by the Court of Appeals. The order ends the appeal.

The Supreme Court held oral argument on whether to accept the appeal of K.H., who argued that the trial court lacked sufficient evidence to prove that he is the biological father. The court also ordered K.H. to pay child support after issuing findings that “provided by a preponderance of evidence, if not clearly and convincingly that … K.H. is the biological father of I.B.”

The child was born after mother L.B.’s marriage to C.B. dissolved, and both stipulated that C.B. was not I.B.’s father. K.H. appealed, arguing the trial court erred in concluding that L.B. had rebutted the statutory presumption that C.B. is I.B’s father in the absence of DNA evidence.

Justices Steven David, Mark Massa and Robert Rucker formed the majority that ordered to deny transfer of K.H.’s appeal without opinion, but Chief Justice Brent Dickson wrote a dissent joined by Justice Loretta Rush.

“I respectfully dissent from the denial of transfer and would prefer for this Court to address whether DNA evidence should be required whenever a child may face the risk of losing the presumption of being the biological child of the birth mother’s husband,” Dickson wrote.

“I believe that in any proceeding in which the presumption of biological paternity is potentially impinged, DNA testing, if available, should be mandatory as the exclusive way of providing conclusive, direct, clear, and convincing evidence to rebut the presumption,” he wrote. “Without supporting DNA genetic evidence, courts should not make any judicial determination that a child’s biological father is someone other than the biological mother’s husband when the child was born. Nothing less should suffice.

“I would grant transfer so that this Court can consider adopting this new evidentiary requirement,” Dickson wrote.

 

 

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  1. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  2. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  3. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  4. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  5. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

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