Paternity Summary

With the release of a recent Arizona Court of Appeals decision, it seems the gamut has been run on the multitude of issues and changing of minds when it comes to Acknowledgments of Paternity.

In McQuillen v. Hufford, the Court of Appeals held that the legal status of paternity established by an Acknowledgment of Paternity overrides a mere presumption of paternity, even genetic testing, when challenged by one of the parties that signed the Acknowledgment.

The takeaway: don’t sign an Acknowledgment of Paternity unless you really want to be the father, or (if you’re the mother) you really want the other person to be the father.

Acknowledgment of Paternity Explained

In Arizona, under A.R.S. 25-812, paternity of a child born out of wedlock can be established by signing an Acknowledgment of Paternity. The Acknowledgment has to be notarized or witnessed and has to contain the social security numbers of the two parents signing it. When an Acknowledgment of Paternity is signed, it gets sent to the State health department and it has the same effect as a court judgment of paternity.

As you can imagine, there have been situations where two people signed an Acknowledgment of Paternity, and the named father in the Acknowledgment is not actually the father. Sometimes this happens unwittingly. Sometimes this happens intentionally. After you sign an Acknowledgment of Paternity, the statute allows you to rescind it within 60 days, or you can challenge it under Rule 85 for fraud (which has a 6 month window).

In the past, there were two cases that dealt with the situation where two parties signed the Acknowledgment of Paternity knowing that the named father was not really the biological father.

Mother Trying to Get Rid of Voluntary Father

In an old case named Andrew R., the Court of Appeal addressed a situation where two people signed an Acknowledgment of Paternity and both knew that the named father (Voluntary Father) was not actually the father of the child. They nevertheless signed the Acknowledgment of Paternity anyways and raised the child for a while.

When their relationship ended, the mother began or restarted her relationship with the biological father. Voluntary Father asserted his legal rights as the father and wanted to have parenting time with the child.

The mother tried to have Voluntary Father removed as the child’s father because he was not actually the biological father, which was a fact and something both she and Voluntary Father knew was a fact.

Despite Voluntary Father not being the biological father, the Court of Appeals held that the mother could not benefit from her own fraud and undo the legal effect of the Acknowledgment of Paternity. Further, the Court of Appeals stated the public policy of maintaining stability for children by not trying to disrupt their parental relationships.

The mother did not avail herself of the two options under the statute to rescind or challenge the Acknowledgment of Paternity, and therefore, the mother was not able to strip Voluntary Father of his rights even though he was not the biological father.

Biological Fathers Can (sometimes) Challenge an Acknowledgment

Years after Andrew R., the Court of Appeals issued another opinion in the Alvarado case. This case differed from Andrew R. in that the biological father was a litigant and wanted to challenge an Acknowledgment of Paternity.

In Alvarado the Court found that the mother and Voluntary Father had signed the Acknowledgment of Paternity knowing that Voluntary Father was not the biological father. The biological father wanted to vacate the Acknowledgment so he could establish paternity for himself and become the child’s father.

Despite more than 6 months passing from the time the Acknowledgment of Paternity had been signed, and despite the public policy noted in Andrew R. to support stability for children by not disrupting their established parental relationships, the Court of Appeals upheld the vacating of an Acknowledgment of Paternity due to what is known as fraud upon the court (even though an Acknowledgment of Paternity does not get filed with the court) and to support a competing public policy to prevent an end run on the adoption statutes and requirements.

In the end, the Court in Alvarado allowed a biological father power to void an Acknowledgment of Paternity signed by a voluntary, but not biological, father for the establishment of paternity rights by the actual biological father.

Biological Fathers Can Also Say No

Now enter the McQuillen v. Hufford case.

In Andrew R., the Court held that a mother (applicable to the signing father too) could not claim fraud when she/he knew of the fraud to void an Acknowledgment of Paternity beyond the time limits set forth in the statute.

In Alvarado, the Court allowed a gateway for biological fathers to void an Acknowledgment of Paternity beyond the time limits set forth in the statute that are applicable to the signors of the Acknowledgment.

In McQuillen, the mother, much like the mother in Andrew R., knew that the Voluntary Father was not the biological father when she signed the Acknowledgment of Paternity. After the time limits to void the Acknowledgment under the statute had passed, the mother changed her mind and wanted to establish paternity for the actual biological father.

So, this is a little different from the other cases because Voluntary Father wasn’t fighting to keep his rights like in Andrew R., and the biological father wasn’t fighting to assert his rights like in Alvarado.

Based on the opinion, it would seem that the mother wanted to (re)establish paternity for child support purposes. Voluntary Father may have left or maybe he did not have a lot of money. Either way, it was clear that the mother wanted to establish paternity for the biological father to create a child support order.

The biological father moved to dismiss the case because the child already had a legal father, Voluntary Father (the one who signed the Acknowledgment of Paternity). The trial court agreed with the biological father and dismissed the case. The mother appealed.

The mother’s position was that the statutory framework was conflicted as there were presumptions of paternity under another statute, A.R.S. 25-814. Without getting into the nuances of the argument, the mother basically asserted that genetic testing proved that the biological father was the father, and so the presumptions of paternity under 25-814 would allow her to establish paternity and trump the Acknowledgment of Paternity signed under 25-812.

The Arizona Court of Appeals agreed with the trial court and biological father. The Court held that the paternity established by the Acknowledgment of Paternity was the same as a court judgment and the mother was unable to legally void that judgment under the statute. The time window to do so had passed, and much like the mother in Andrew R., the mother in McQuillen could not benefit from her own fraud since she knew Voluntary Father was not the actual father.

Without a legal basis to void Voluntary Father’s established paternity, the mother could not try to establish paternity against biological father and so her case was dismissed.

Irony: Biological Fathers Have the Power

Perhaps the great irony here is that biological fathers who have had their rights “taken” from them by another man signing an Acknowledgment of Paternity still hold a great deal of power in determining whether to establish their rights or not.

Now, the biological father’s ability to void the Acknowledgment in Alvarado was based on the particular set of facts. Biological fathers who do not assert paternity rights are not forever protected. In fact, quite the opposite can be true, especially in the context of an adoption.

Nevertheless, based upon the framework of case law established by Alvarado and now McQuillen, it seems that biological fathers, under the right set of circumstances, can hold the cards as to whether to establish paternity or not, and whether to pay child support or not.

The issue wasn’t before the Court in McQuillen because that biological father was avoiding paternity of the child. However, depending on the circumstances, there’s a good chance he could have voided the Acknowledgment of Paternity and established paternity for himself under the case law set forth in Alvarad0–IF he wanted to.

Clearly, the biological father in McQuillen did not want to establish paternity, and he was able to utterly dismiss the mother’s case even though he was clearly the actual father of the child.

Moral of the Story

What does all this mean for you? Signing an Acknowledgment of Paternity is a bid deal. It should not be done lightly and you should do so knowing that there is a very limited window to undo or otherwise challenge it.

If you know the person signing as the father is not really the father, under Arizona law you are limited in challenging it later even if you change your mind while also being susceptible to a challenge by the biological father. In other words, it puts you in a lose/lose situation.

If you’re unsure of whether to sign an Acknowledgment of Paternity, have recently signed one, or think someone signed one to strip you of your paternity rights, it is important that you speak with a good family law attorney right away as there are multiple deadlines that could affect your rights.