8th Oct 2013
Many people, including attorneys, maintain the belief that once a child has been deemed to be the offspring of a man that the presumption of paternity cannot be overturned, even with the assistance of scientific and conclusive DNA testing. This is not the case. Paternity fraud occurs when a Mother leads a man to believe that he is the biological father of a child, although she is aware that he is not, or may not be the child’s father. The laws in Tennessee regarding paternity fraud have evolved during the last decade or so and are balancing more in the favor of the putative father.
In Taylor v. Wilson, 2005 WL 517548, the Tennessee Court of Appeals addressed this issue when the Father alleged that his voluntary legitimation of the minor child was based on the mutually mistaken belief of himself and the child’s mother. He determined that he was not the biological father of the minor child by having an independent DNA testing performed on the minor child, without the benefit of a court order. The test established that the Appellant was not the father. He then filed a Petition to Set Aside Paternity and Modify Arrearage, which was dismissed by the Shelby County Juvenile Court. The Court of Appeals reversed, stating that:
“We believe that all common law presumptions relating to the paternity and legitimacy are rebuttable and the public policy has now been established by the General Assembly that true parentage is the end that should be pursued by the courts in paternity actions.”
The Court went on to state that “In another case, White v. Armstrong, we considered a petition for post-judgment relief from a child support order when the appellant, who had voluntarily legitimated the child in question three years earlier, discovered through genetic testing that he could not be the child’s biological father…We noted that, under Tennessee law, “it is of overriding importance…that one conclusively established in law not to be the father of a child be not declared as the father of that child”… From our review of Richards, Harmons, Granderson, and White, it is apparent that Tennessee law strongly favors requiring biological parents to bear responsibility for their own children, and that this policy also favors relieving putative fathers of the burden of supporting children who have been shown, through conclusive evidence such as DNA testing not to be their natural offspring.”
Oftentimes, in litigation concerning paternity fraud, or even the presumption of paternity fraud before DNA testing is conducted, the Mother, or the State of Tennessee, will make the argument that the Father waived his right to DNA paternity testing by voluntarily acknowledging paternity of the minor child at issue by signing the birth certificate, a voluntary acknowledgment of paternity, or even by holding the child out to be his offspring. This issue was also addressed in Taylor v. Wilson, whereas the State of Tennessee contended that:
“Mr. Wilson waived his right to contest his paternity by failing to request a DNA test during the initial paternity proceeding. However, the law of Tennessee does not recognize such a waiver under these circumstances. Every indication in the record indicates that Mr. Wilson believed that was his natural child when he voluntarily acknowledged paternity and the case law supports granting relief in such a case. Indeed, in the case of White v. Armstrong, we dealt with a situation in which the father had some suspicion-but not conclusive proof-that the child was not his own, and we acknowledged that he may have voluntarily legitimated a child in an attempt “to avoid the public humiliation and embarrassment that would follow the revelation that he was not the father… We concluded that this putative father was entitled to seek prospective relief from the child support order, once he obtained irrefutable evidence that he was not the child’s natural father”. Fathers should have the opportunity to obtain DNA paternity testing of the minor child at issue, and thereby gain such irrefutable evidence as to whether or not they are, indeed, the natural father of the minor child.
In Coppage v. Green, 2007 WL 845909, the Court of Appeals again addressed the issue of paternity fraud and the request for DNA paternity testing and placed significance on the fact the putative father had made prior effort to question the paternity of the minor child at issue. Specifically, the Court stated that:
“[T]he father attempted to get a DNA test within a year of admitting to paternity. The father hired a lawyer who was unable or inadequate to in obtaining access to a DNA test. Furthermore the father lacked the fund or was out of the country during the ensuing years when he should have filed for a DNA test. The Court finds that pursuant to the case of Taylor v. Wilson, such is a case for “exceptional relief”. Justice and equity demand that the truth of the child’s parentage be determined. The Father’s attempt within one year coupled with the father’s military absences, justify a reconsideration of the father’s requested DNA…. The appellate court has observed that “true parentage is the end that should be pursued by the courts in paternity actions. This Court has also stated that, under Tennessee law, “it is of overriding importance…that one conclusively established in law not to be the father of a child be not declared as the father of that child.”
Finally, if the Court finds at a hearing that there is substantial likelihood that fraud, duress, or a material mistake of fact existed in the execution of the acknowledgement of paternity, then the court shall issue parentage tests. “Such action shall not be barred by the five (5) year statute of limitations where fraud in the procurement of the acknowledgment by the mother of the child is alleged and where the requested relief will not affect the interests of the child, the state, or any Title IV-D agency.” However, the Father is not necessarily required to prove “fraud, duress, or a material mistake of fact” by specific and affirmative actions on the part of the Mother, but rather may rely upon her silence as such evidence, as held in In re T.M.S, whereas the Court stated that:
“It is undisputed that Mother failed to disclose to Mr. S, when the child was born and he was asked to sign the child’s birth certificate as the child’s father, that she had had sexual relations with at least one other man during the pertinent time period. Irrespective of any personal belief Mother may have had that Mr. S was the child’s biological father, it is certainly arguable that she had a duty to speak at that time, so her failure to do so was fraudulent concealment.”
Tennessee law strongly favors the requirement that biological parents bear responsibility for their own biological children. The same policy also favors relieving putative fathers of the burden of supporting children who have been shown, through conclusive evidence such as DNA testing, not to be their natural offspring. Although the state, admittedly, has an interest to safeguard public funds by requiring that biological parents provide for their children and the burden of doing so does not fall onto the taxpayers, any such interest of the state does not outweigh the interest of the Father to be free of the financial burden to support a child that he may not have fathered. Know your legal rights when you question the paternity of a child that you have been ordered to pay child support for.