Legal Question in Family Law in Arizona

Is there a statue of limitations to contest parentalship?

I have 3 children (ages 10, 12 and 16) from my previous marriage. My ex-wife is telling my 12 year old that I am not her father, that someone else is due to a relationship she had when we were separated in 1990. Of course in 1991 when my 12 year old was born, my ex and I were back together and I thought the baby was mine, so I signed her birth certificate and all the papers accordingly.

I want to know the truth, so I will pay for DNA test. If I am NOT her father, is there a statue of limitations (or something) in Arizona that would make me continue to provide child support regardless - perhaps because I didnt contest it in time - or something?

Asked on 7/03/03, 11:38 am

2 Answers from Attorneys

Re: Is there a statue of limitations to contest parentalship?

First thing as long as you where married to the mother when the child was born you are the legal father of the child. If you do DNA testing on your own and the results show you are not the father, you still the legal father of the child and must cont. to pay child support. You should do everything through the Court system. The court might not order DNA testing and you will still be the legal father. the court may order the testing if all parties agree. However, If it is not in the best interest of the child, the Court might not order child support. There is no statute per se, but time is important. Usually when the child is young the court generally orders DNA testing, however when the child is older, the Court is more reluctant. If you would like to discuss this further you can call me at 480-296-2066

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Answered on 7/03/03, 12:55 pm

Keith Knochel Law Offices of Keith Knochel

Re: Is there a statue of limitations to contest parentalship?

I respectfully disagree with the earlier reply posted to this message. Legally, the husband of the mother is PRESUMED to be the father of the child, but this is a legal presumption only. What this means is that, in the absence of evidence to the contrary, the law will conclude that the husband is the father. The law provides, however, that this presumption may be overcome by clear and convincing evidence.

In your case, I assume that you have a judgment ending your former marriage and ordering you to pay support for the children stated to be of that marriage. That judgment was based upon representations by the parties that the 12 year old was your child and on the legal presumption that this child was yours. I believe that you are entitled to attack that judgment, at any time, as having been obtained by fraud and misrepresentations by your wife and that, in such an attack, you would be entitled to compel DNA tests of the children, comparison of their genome with yours, and a determination of whether you are the father. You would have the burden of proof here, but a lab finding that there is a 99.99% chance that you are not the father would be quite enough.

If you were determined to not be the father of one or more of those children, you should be "relieved" of the effect of the judgment to the extent that it requires you to pay child support for a child that is not yours--in other words, once the court found that the child was not yours, you would not have to pay further child support.

While there is no "statute of limitations" to such an action, you need to bring it as soon as possible after you learn of the fraud committed on you or you can lose the right for failure to pursue your remedies timely. Also, you should be aware that, while the court can relieve you of future child support obligations, it cannot and will not give you a refund of child support already paid or let you off the hook for any arrearages.

So, in conclusion:

1. It is likely that you do have a right to challenge the child support judgment which holds you responsible for a child that is not yours;

2. When you bring the action to be relieved of the Judgment, the court should allow you to get genetic testing and to introduce the genetic evidence to prove you are not the father;

3. If you are not the father, the court should relieve you of future child support payments for that child, but will not refund past payments or allow you to avoid paying arrearages.

Feel free to contact our office if you have further questions. (928) 754-3322

H. Paul Honsinger, Attorney at Law

Domestic Relations Associate

Law Offices of Keith S. Knochel, P.C.

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Answered on 7/03/03, 1:52 pm

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