Paternity, and what it actually means.As an experienced paternity attorney in Arizona it is sometimes difficult to explain to a client that you may not be the father, even if you are the biological father.
When a minor child is conceived, it usually requires two people. However, sometimes, a mother is involved with two (or more) different people at the same time, even if she is married to one or neither of them. Therefore, it may be hard for the mother to admit to her infidelity and she may tell her main partner that he is the father, even if she is not 100% sure. While Arizona is a no-fault state for dissolution (which means so long as one party says that the marriage is irretrievably broken, then the Court will grant the dissolution), the issue of infidelity can cause an issue when it comes to who the father of the minor child is.
According to Arizona statutes, aside from the court adjudicating that paternity is established, based on clear and convincing evidence, there are four ways that paternity can be presumed to have been established:
- The man and the Mother of the child were married at any time in the ten months immediately preceding the birth or in the ten months after the marriage is terminated by death, annulment, dissolution, or legal separation;
- Genetic testing affirms at least a ninety-five (95) percent probability of paternity;
- A birth certificate signed by the mother and father of a child born out of wedlock; or
- A notarized acknowledgement of paternity.
So once you have the paternity established, is that it? Not necessarily. A party can rebut the presumption, but their time to do so is very short. Essentially, the party seeking to rebut the presumption has only the earlier of either, (1) sixty (60) days after the last signature is affixed to the acknowledgement of paternity to be able to rescind; or (2) the date of a proceeding relating to the minor child in which the mother OR father are party to the case.
Therefore, if you miss your window, whether you are the biological Father or not, you are that child’s father in the eyes of the Court.
Now some of you may not believe that is fair, because maybe you have been in a situation listed above where your significant other fooled around with another man, and the child just does not look like you, but mother claims that the child is yours and you meet the presumption listed above in the statute. However, it turns out that you find out later that the minor child is not biologically yours, for one reason or another. So then who is the father of the child?
The Arizona Court of Appeals has recently ruled on a case, Johnson v. Edelstein, that answers that question. In the original trial court case, Mr. Johnson had signed and filed a voluntary acknowledgement of paternity, thereby meeting the statutory requirements listed above. A few years later, however, Mr. Daniels filed a paternity action, and the superior court ordered Mr. Daniels to submit to a paternity test. The results of the paternity test indicated that Mr. Daniels was the minor child’s biological father. Therefore, the Superior Court vacated the voluntary acknowledgement of paternity for Mr. Johnson and found Mr. Daniels to be the father.
Thereafter, Mr. Johnson filed his special action with the Arizona Court of Appeals. His reasoning for this was because he believed that the voluntary acknowledgement of paternity was enough to establish him as the father of the minor child, because according to the statutes, an acknowledgment of paternity carried the same weight as a court’s order. The appellate court found that the trial court erred in overturning Mr. Johnson’s voluntary acknowledgement of paternity and putting in place a finding of paternity for Mr. Daniels. Therefore, the appellate court reversed the trial court’s decision and vacated the finding of Mr. Daniels paternity. Thereafter, the appellate court reversed and remanded the case back to the trial court to reinstate the action filed by Mr. Johnson as the father.
Essentially, the finding of the Appellate Court is this, once a set period of time has passed, if you have found a presumption of paternity in accordance with the statute listed above, then that person is that child’s father, regardless if he is the biological father.
The long and short of it is this. If you have any reason to suspect that a minor child may not be yours, then your best option is to challenge the legitimacy of it as soon as possible. If you do not, then no matter what, if you agree that the child is yours, then for the rest of the child’s life, that kid is yours.
We offer free consultations for this and many other family law issues, Please give me call at (480) 833-1113 to schedule your free consultation to discuss your family law case.
Attorney Profile: Stacy L. Porter
My Areas of Law:
Divorce and Family Law Attorney