COA reinstates case seeking child support from non-biological father

The Indiana Court of Appeals has reinstated a petition to establish child support from a man who is not the biological father of the child. The panel concluded that time had run out for the man, who signed a paternity affidavit without reading it and waited years before taking judicial action.

Although he was informed by Abriel Gonzalez that he was the father of her child, Johnathan Ortiz was unsure if the child was really his. When Gonzalez allegedly told him that he would not be able to see the child unless he signed the paternity affidavit, Ortiz signed without reading it first.

The affidavit stated, among other things, that “A man should NOT sign this form if he is not sure he is the biological father … After sixty (60) days the father may not be able to reverse paternity even if genetic tests prove he is not the biological father.”

One month after the child’s birth, a DNA test-kit Ortiz purchased revealed he was not, in fact, the child’s biological father. Submitted genetic samples sent to a certified laboratory the following year revealed the same conclusion, which Gonzalez denied. She subsequently sought to initiate a child support proceeding to obtain a court-sanctioned genetic test, but that test also concluded that Ortiz was not the biological father.

Ortiz filed a motion to dismiss a petition to establish child support and sought to have his name removed from the birth certificate. The trial court ultimately granted his motion to dismiss the child support establishment after finding the court-ordered genetic test results showed Ortiz was not the child’s biological father.

In reversing and remanding that decision, the Indiana Court of Appeals concluded that although Ortiz questioned being the child’s father and two DNA tests revealed that he was not, he waited until child support requests were made years after the child’s birth before seeking redress with the trial court.

“We simply cannot find that these facts constitute the extreme and rare circumstances required to set aside paternity after the sixty-day window has closed. As in (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), the only reason Father sought genetic testing was to contest his paternity, meaning that the evidence establishing non-paternity was discovered intentionally rather than inadvertently,” Judge John Baker wrote for the appellate court.

The appellate court concluded that if the trial court’s order were permitted to stand, the child would ultimately be left fatherless, running counter to Indiana public policy.

“We can only find, based upon the plain language of the paternity statute and our Supreme Court’s and this Court’s interpretations thereof, that the trial court erred by granting Father’s motion to dismiss,” it concluded. “Father is Child’s legal father with all attendant legal consequences, and it is too late now to find otherwise.”

The case is Paternity: Abriel Theresa Jenika Gonzalez, et al. v. Johnathan Michael Ortiz, 19A-JP-01957.

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