Man’s Paternity Affidavit May be Disestablished if Second Man Files Paternity Action That Confirms He is Biological Father

Family Law Case Review

Case: In Re: The Paternity of I.I.P.: Kailei L. Poteet v. Justin Rodgers and Nathan T. Poteet
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: A man’s paternity, established through the execution of a paternity affidavit, may later be disestablished if a second man files a paternity action that confirms the second man is the biological father of the child.

FACTS AND PROCEDURAL HISTORY:  Near the time of Child’s conception, Mother was in a relationship with Legal Father. Around the same time, Mother also had an intimate relationship with Biological Father, which resulted in Mother ending her relationship with Legal Father. Mother gave birth to Child in November 2012. When Child was approximately four months old, Mother and Legal Father reconciled and subsequently married in 2014. In 2015, Legal Father executed a paternity affidavit to establish paternity of Child.

Legal Father filed a petition to dissolve the marriage. While the dissolution action was pending, Mother rekindled her relationship with Biological Father and she filed a petition to establish paternity, identifying Biological Father as Child’s father. Mother also requested genetic testing, which established that Biological Father was Child’s biological parent.

In early 2017, Legal Father filed a motion to dismiss Mother’s petition to establish paternity. Legal Father alleged that Mother’s petition failed to state a claim. Around the same time, Biological Father filed a petition of his own to establish paternity and simultaneously to disestablish Legal Father’s paternity.

Following a hearing, the trial court determined that Legal Father had executed a paternity affidavit, and that it had not been timely challenged as being a product of fraud, duress, or material mistake of fact. The trial court further concluded that, by signing the paternity affidavit, Mother was estopped from attempting to establish paternity in another man. The paternity matter was dismissed, and Mother and Biological Father appealed.

The Court of Appeals reviewed the matter to determine whether there was any genuine issue of material fact and to determine whether Mother was precluded, as a matter of law, from challenging Legal Father’s paternity.

The Court of Appeals noted that paternity may be established only by either (1) filing a paternity action or, (2) executing a paternity affidavit. Further, an executed paternity affidavit can be set aside only one of two ways. First, a man signing a paternity affidavit has 60 days after executing it to request genetic testing through the court and, if he is excluded as the biological father, the trial court may set aside the paternity affidavit. Second, if more than 60 days have passed since the execution of the paternity affidavit, it may be rescinded only if the trial court determines that fraud, dress, or a material mistake of fact existed in the execution of the paternity affidavit and, at the request of the man who signed the paternity affidavit, genetic testing indicates that the man is excluded as the father of the child.

In this case, it was undisputed that Legal Father established paternity by executing a paternity affidavit. Further, more than 60 days had passed since Legal Father executed the paternity affidavit in 2015. Legal Father never requested genetic testing; rather, it was Mother who sought the genetic testing. This foreclosed any possible way to rescind the paternity affidavit directly.

However, the Court of Appeals determined there was another possible avenue for disestablishing Legal Father‘s paternity. By statute, once paternity is established in one man, doing so indirectly disestablishes paternity in another man. Thus, Biological Father’s paternity action could operate to disestablish the paternity of Legal Father.

The Court of Appeals reviewed the particulars of the trial court pleadings of Mother and Biological Father, finding them to be procedurally defective. However, the Court of Appeals expressed concern that the trial court ignored Mother’s request to amend her paternity petition. Further, while Indiana law generally provides that an action to establish paternity must be filed within two years of the child’s birth, certain statutory exceptions allow for a petition to be filed later. The Court of Appeals concluded that there was a genuine issue of material fact as to whether not such exceptions applied in this case. Therefore, the case was remanded to the trial court for further proceedings.

Judge Baker dissented. His interpretation of Indiana statute was that a paternity affidavit that has already been executed may not be rescinded unless the trial court finds both: (1) fraud, duress, or material mistake of fact existent in the execution of the paternity affidavit, and (2) at the request of the man who executed the paternity affidavit, genetic testing is undertaken which excludes the man as the natural father. Since neither one of those things occurred in this case, Judge Baker concluded that any further relief was unavailable, including via the paternity action statute. He cited to prior case law that provided that “once a mother has signed a paternity affidavit, she may not use the paternity statutes to deprive the legal father of his rights, even if he is not the biological father.”

To view the text of this opinion in its entirety, click here: In Re: The Paternity of I.I.P.: Kailei L. Poteet v. Justin Rodgers and Nathan T. Poteet

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James A. Reed and Michael R. Kohlhaas of Bingham Greenebaum Doll represent clients in a wide spectrum of relationship transition and wealth planning matters, including premarital agreements, estate planning, cohabitation, separation, divorce (especially involving high net worth individuals and/or complex asset issues), custody, parenting arrangements, adoption, and domestic partnerships. Bingham Greenebaum Doll, a multidisciplinary law firm serving regional, national, and international clients, is the fourth-largest law firm in Indiana. The firm’s main practices include corporate, property, litigation, labor, government law, and personal services law. Visit the firm’s website at www.bgdlegal.com.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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By Virtue of Executing the Consent of Adoption, Biological Mother was Precluded from Seeking Custody of Child

Family Law Case Review

Case: J.R. and C.R. v. S.P. and D.P
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: A biological parent’s consent to adoption, followed by a finalized adoption and relinquishment of parental rights, precludes the biological parent from subsequently seeking custody of the child, including pursuant to Indiana Code 31-17-2-3, which otherwise broadly permits a third-party to file a petition seeking custody of a child.

FACTS AND PROCEDURAL HISTORY:  Child was born to Biological Mother in 2003. The day after Child’s birth, Biological Mother signed a consent to adoption, which consented to Mother’s adoption of Child, waived notice of all proceedings connected to the adoption, and relinquished all maternal rights. Four days later, Mother and Father filed a petition to adopt Child, which was subsequently finalized and approved. The parties did not enter into any agreement regarding post-adoption contact between Biological Mother and Child.

Thirteen years later, after reconnecting with Child and learning of apparent friction between Child and the adoptive parents, Biological Mother and her husband filed a petition seeking custody of Child. They relied upon Indiana Code 31-17-2-3, which broadly permits a third-party to file a petition seeking custody of a child.

The adoptive parents filed a motion to dismiss Biological Mother’s petition for failure to state a claim, which the trial court granted after a hearing. Biological Mother appealed.

The Court of Appeals concluded that, by virtue of executing the consent to adoption, the adoption proceedings that were finalized, and the related relinquishment of maternal rights, Biological Mother was precluded from seeking custody of Child. The Court of Appeals also noted the public policy consideration that allowing Biological Mother’s case to move forward would create unnecessary instability and uncertainty in all adoption cases.

The trial court’s dismissal of Biological Mother’s petition was affirmed.

To view the text of this opinion in its entirety, click here: J.R. and C.R. v. S.P. and D.P

 

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James A. Reed and Michael R. Kohlhaas of Bingham Greenebaum Doll represent clients in a wide spectrum of relationship transition and wealth planning matters, including premarital agreements, estate planning, cohabitation, separation, divorce (especially involving high net worth individuals and/or complex asset issues), custody, parenting arrangements, adoption, and domestic partnerships. Bingham Greenebaum Doll, a multidisciplinary law firm serving regional, national, and international clients, is the fourth-largest law firm in Indiana. The firm’s main practices include corporate, property, litigation, labor, government law, and personal services law. Visit the firm’s website at www.bgdlegal.com.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Chaos Strategy

NOTES ON NEGOTIATIONS:
By Marty Latz, Latz Negotiation Institute

“You never know what I’m going to do – and I consider this a negotiation advantage. In fact, I even appear to act irrationally at times. This unpredictability helps, right?”

Yes and no. What do I mean? In very limited circumstances it can help. But much more often, it’s highly counterproductive.

How can we evaluate this? Consider the following.

1.    Future relationship factor
Does anyone really want a business or other relationship with someone who’s completely unpredictable, inconsistent and seemingly irrational?

It’s one thing to be exciting and a risk-taker. This can be productive. In fact, occasionally doing the unexpected and not being 100 percent predictable can unleash creativity and other positive negotiating traits.

However, it’s quite a different story to consistently act and react in ways that no one expects. This scares folks. And it should. You never know what to expect – good or bad.

This is highly problematic in business and other relationships that rely on planning and predictability of actions for success. And this makes partnering or negotiating with them highly dangerous and full of risk (both negotiating within organizations and between them).

The result? An unacceptable risk-reward ratio leading to possible negotiation counterparts just walking away from these folks if they can. Why even engage, even if it appears that you might enjoy some mutual interests?

High likelihood the relationship will just crash and burn at some point. Just not worth it.

2.    Reputational factor
Many years ago, a fellow lawyer told me of a telephone negotiation that got quite heated on one final element. While the lawyers went at it, the clients just listened.

But then everyone started hearing a clicking noise on the phone every 10 seconds or so. Finally, one of the lawyers asked what caused the clicking. One of the clients then drawled, “Don’t worry, fellas. That’s just my shotgun trigger.  It calms me down when I get real upset.”

The lawyers shortly thereafter got the deal done. The notion of a slightly crazy client pulling the trigger of his shotgun – while listening to lawyers arguing – apparently caused his opposing lawyer to concede.

Did this slightly crazy act work? Yes – on that one issue in that one deal. But in today’s highly connected social media world, I expect that client’s slightly crazy act would become known. That’s how reputations get made.

And who would want to do business with him? Not many.

3.    Performance factor
“Hold on,” you might say. “I would still do a deal with him if it’s a one-shot deal with no future relationship and no future performance issues. For example, I would still buy a classic car or a house from him, especially if I couldn’t get a similar car or house anywhere else.”

I agree. But you’d still rather do that deal with someone not a bit crazy and not totally unpredictable. And his actions won’t help him in his deal with you. In fact, it will make it less likely you will reach a solid deal with him.

After all, his tactics will lead you to distrust him and ensure you dot every “i” and cross every “t” and address every possible contingency that might arise. Why? Because you will never know or predict whether or when he would turn around and not perform or renege later.

This makes dealing with him riskier for you and more expensive and time-consuming for everyone – including him. It’s certainly not helping him.

One final note. You don’t want to be entirely predictable either, especially with your moves in the offer-concession stage. But even then, you will want to be relatively consistent with the overall patterns that exist in that environment (like not bidding against yourself, etc.). If you aren’t, you risk getting accused of negotiating in bad faith.

That’s also not helpful.

Latz’s Lesson:  Sending inconsistent signals and acting a little bit crazy and unpredictable in negotiations will lead to predictable results – and they’re not good.

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Marty Latz is the founder of Latz Negotiation Institute, a national negotiation training and consulting company, and ExpertNegotiator, a Web-based software company that helps managers and negotiators more effectively negotiate and implement best practices based on the experts’ proven research.  He is also the author of Gain the Edge! Negotiating to Get What You Want (St. Martin’s Press 2004). He can be reached at 480-951-3222 or Latz@ExpertNegotiator.com

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

Posted in Negotiation/Mediation Blog0 Comments

Challenges Associated with Enforcing Non-Competes, Feb. 13

TOPICS:
* Drafting (or poking holes in) a Non-Compete Agreement
* Tips for Handling Employees who Leave and are Suspected of Taking
Company Property/Competing
* Taking the Non-Compete Into Court:  Injunctions, Damages and
Evidentiary Hurdles
* Non-Competes and Independent Contractors
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FACULTY:
Hannesson I. Murphy – Chair
Barnes & Thornburg LLP, Indianapolis

Blake J. Burgan
Taft Stettinius & Hollister LLP, Indianapolis

John A. Drake
Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Indianapolis

Gregory W. Guevara
Bose McKinney & Evans LLP, Indianapolis

Joseph C. Pettygrove
Kroger Gardis & Regas, LLP, Indianapolis
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3 CLE – Tuesday, February 13;  1:15 P.M. – 4:30 P.M.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

Posted in Law Blogs0 Comments