Family Law Case Review: B.M. v. S.K.

Case: Paternity of T.M.; B.M. v. S.K.

Case Summary – by Mike Kohlhaas (with thanks to Kathleen Rudis)

HELD: The Court of Appeals held that the trial court hearing a paternity challenge did not abuse its discretion in refusing to admit a mail-in DNA test, when there was no information in the trial court record establishing a foundation to support the reliability of the results.

FACTS AND PROCEDURAL HISTORY: Child was born in 1995 to unmarried parents.  Father executed a paternity affidavit the day after Child’s birth, claiming to be Child’s natural father.  In 1997, Father and Mother filed a joint petition to establish support and related matters.  Several days later, the court entered an order establishing their parental status.  For the first fourteen years of Child’s life, Father held himself out to be the Child’s father, paid child support, provided health insurance at times, and exercised primary physical custody and parenting time for substantial periods of time.  In 2009, Father’s wife purchased a DNA kit from Walgreens, requiring that Father and Child take mouth swabs and mail them in for testing.  Mother did not give her permission for Child to participate in the test.  The results of the DNA tests were issue by e-mail, informing Father that he was not Child’s biological father.  Then, in 2010 Father moved to set aside his paternity affidavit and for DNA testing.

At the hearing, the trial court did not admit the DNA results into evidence following Mother’s objection on the grounds that they were not properly certified.  Also, at the hearing, Mother testified that she and Father were involved in a sexual relationship at the time of Child’s conception, that she was not seeing anybody else at that time, and that there was no reason for Father not to believe her when she told him he was Child’s father.  The trail court then denied Fathers petition, finding no fraud, duress or mistake of fact.  In denying the petition, the trial court observed that the information relied upon by Father in petitioning to rescind his paternity affidavit resulted from a mail-in paternity test, the results of which were not obtained through the ordinary course of medical care or inadvertent discovery.  The trial court further observed Mother’s testimony regarding her exclusive relationship with Father and found that Mother believed Father was the biological Father.  Father appealed.

The Court found that there was no dispute that Father executed a paternity affidavit in 1995 claiming to be Child’s biological father.   The Court then noted that once a man has executed a paternity affidavit, in accordance with Ind. Code 16-37-2-2.1, he is the child’s legal father unless the affidavit is rescinded pursuant to the same statute.  Considering that Father filed his petition to rescind his paternity fourteen years after he executed it, the Court found that a man who executed a paternity affidavit may not fail to timely request genetic testing under Ind. Code 16-37-2-2.1 and then, as a matter of course, request such testing as a fishing expedition. The Court stated that legal fathers may not disestablish paternity outside of the sixty-day time limitation, absent a claim of fraud, duress or material mistake of fact.  The Court further stated that a legal father may challenge paternity only in extreme and rare instances and the challenge must be made by evidence that has become available independently of court action.

The Court found that admissibility of evidence, such as the admissibility and reliability of the mail-in DNA test, was a matter within the trial court’s discretion and would be reversed only upon a showing of abuse of discretion.  The Court considered that the mail-in DNA kit specifically stated it was not to be used for legal purposes, and there was no information for the purported laboratory where the tests were conducted, or the persons conducting those tests, establishing a foundation to support the reliability of their results.  Moreover, the Court could find no place in the trial court record where Father introduced facts in support of the admissibility and reliability of such tests.

The Court distinguished the matter from In re Paternity of M.M., 889 N.E.2d 846 (Ind. Ct. App. 2008), wherein the court of appeals reversed and remanded for genetic testing when two genetic tests showed that father, who had executed a paternity affidavit, shared no genetic link to the child.  While the Court found that the nature of the tests in M.M. were unclear, the genetic testing therein was purportedly with the consent of both parents, there were two tests, their results were part of the record, the mother offered no testimony, and the trial court denied father’s relief on the apparent grounds that disestablishment of paternity contravenes public policy.  The Court emphasized the importance of the fact that the admissibility of tests in M.M. did not appear to be at issue, but also contrasted the cases based on the number of tests conducted, whether both parents consented, and whether the mothers offered testimony unsupportive of a finding of fraud.

The Court affirmed the trial court’s judgment, finding no abuse of discretion in the trial court’s refusal to admit the test results.

To view the text of this opinion in its entirety, click here: Paternity of T.M.; B.M. v. S.K.

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