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COA upholds denial of motion to set aside paternity

February 12, 2018

A legal father seeking to set aside paternity of his two non-biological children has lost his appeal to the Indiana Court of Appeals, which found the father failed to meet the legal requirements for paternity rescission.

After E.S.F. gave birth to B.M., B.S.M. signed a paternity affidavit for the child knowing he was not the biological father. He signed the same affidavit for O.M., though he suspected he also might not have been his biological father, either.  

Several years after the children were born, E.S.F. filed petitions to establish support of B.M. and O.M. based on the paternity affidavits. The Marion Circuit Court entered judgments of paternity and support, which B.S.M. moved to set aside under Indiana Trial Rule 60(B). He also moved for genetic testing of the children.

The results of the genetic tests excluded B.S.M. as the biological father of either child, though those results were later stricken from the record because the tests were erroneously ordered. The trial court then denied B.S.M.’s Rule 60(B) motions, finding he was the only father either child had ever known and that he had voluntarily signed the paternity affidavits.

The Indiana Court of Appeals upheld that decision in a Monday opinion, with Judge James Kirsch writing B.S.M. failed to show the fraud, duress or material mistake of fact necessary to rescind his legal paternity. Further, his request for genetic testing was solely for contesting his paternity in the child support action, Kirsch said.

“Therefore, there was no evidence of non-paternity that had been inadvertently obtained through ordinary medical care unrelated to paternity,” he wrote, referencing precedent in Fairow v. Fairow, 559 N.E.2d 597 (Ind. 1990).

The case is In re the Paternity of B.M. and O.M., B.S.M. v. E.S.F. and State of Indiana, 49A02-1706-JP-1383.

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