Introduction

Arizona case law in 2021 continues to address father’s rights, particularly on establishing paternity, which is the foundation of all father’s rights.

Fortunately for fathers, the Roger S. v. James S. case proves to provide some relief. Although the case does not exactly expand any rights, it does give some slack for fathers who are trying to establish paternity.

Who’s the Daddy?

In the Roger S. case, both Roger and James had a sexual relationship with the mother. The mother became pregnant and James was the biological father. However, as of the child’s birth, neither Roger nor James formally established paternity.

Even though James later took a DNA test that confirmed he was the father, he did not file any paternity action to formally establish paternity.

The Department of Child Safety ended up taking the child away from the mother and filing a dependency case against her and Roger. The Department indicated that Roger and the mother had filed an acknowledgment of paternity naming him as the father.

Under Arizona law, a mother and a father can sign and file an acknowledgment of paternity, which establishes paternity and is treated the same as a court order of paternity.

This is apparently what happened with Roger and the mother.

The Challenge

James later appeared in the dependency case, and filed a document with the court alleging that he was the father. James also attached his DNA test to his court filing.

Significantly for this case, James did not file a separate paternity action, and did not file a “motion” under Rule 85 alleging fraud, duress, or material mistake of fact.

After various trial proceedings, the court initial ruled against James. However, due to ineffective assistance of counsel, the trial court essentially gave James another chance and ruled in his favor.

In sum, the trial court ruled that there was a material mistake of fact because a DNA test showed that James, not Roger, was the child’s father.

Roger then appealed the case.

Paternity Legal Analysis

On appeal, the Court of Appeals had to analyze whether James challenged the acknowledgment of paternity between the mother and Roger in time to preserve his own paternity.

Under Arizona law, there is a specific framework and set of deadlines surrounding an acknowledgment of paternity.

In short, after an acknowledgment of paternity is signed and filed, the two parents under the acknowledgment have up to 60 days to rescind the acknowledgment.

After that, the acknowledgment can only be challenged under the basis of fraud, duress, or material mistake of fact per Rule 85, which requires that such challenge be brought within 6 months. So, in effect, a person wanting to challenge an acknowledgment of paternity, must do so within 6 months.

Strict Limits to Challenge Paternity

Roger made a smart argument and asserted that James did not file a motion nor paternity action to specifically challenge the acknowledgement on the basis of fraud, duress, or material mistake of fact.

However, the Court of Appeals found substance over form, and interpreted the filing made in the dependency action that included his DNA test a sufficient challenge to the acknowledgment and implicitly asserted mistake of fact since James was saying he was the father, not Roger.

Because this filing was made within 6 months of the acknowledgment being signed and filed, the Court of Appeals affirmed the trial court’s ruling in James’ favor and found he timely challenged Roger’s father status under the acknowledgment.

This new case law doesn’t expand the very limited 6-month window in which a biological father would have to challenge an acknowledgment of paternity signed by another man. However, importantly for all biological fathers, it does relax the requirements a little to allow some slack in what is filed exactly.

In this case, even though it wasn’t a precise motion filed that alleged the specific things identified in the statute, it was interpreted to do such, thereby saving James’ paternity and father rights to his child.

Points to Remember

The main takeaway from the Roger S. v. James S. case is that a biological father’s ability and timeline to challenge an acknowledgment of paternity signed by another man is still limited; however, there is hope and some forgiveness that the substance of a challenging filing will be put above potentially technical flaws in the form of that filing.

If you believe you are the biological father of a child, then you need to act immediately to ensure your paternity is established. Without this foundation, you will have not father’s rights to protect or assert. Contact me here if you want to explore establishing paternity of your child.