Paternity Testing After an Affidavit of Acknowledgment of Paternity Has Been Signed
Before an Arizona court modifies custody or visitation orders, it must hold a hearing to determine whether it is in the child’s best interests to modify existing orders. Is this best-interests test required before a judge order paternity testing? Also, what kind of showing is required to rebut a voluntary affidavit of paternity?
The Arizona Court of Appeals considered these issues in Stephenson v. Nastro, 967 P.2d 616 (1998).
Facts and Background
Mrs. Thomas had a child in April 1992. Mr. Stephenson signed the birth certificate indicating he was the biological father of the child.
Mrs. Thomas was unable to care for the child because she was in jail. Mr. Stephenson and his wife cared for the child since the child was one month old. In 1996, Mrs. Thomas and Mr. Stephenson entered into a stipulation that Mr. Stephenson and his wife should have custody of the child. They filed their stipulation with the superior court, which then awarded custody of the child to Mr. Stephenson and his wife and provided Mrs. Thomas with reasonable visitation.
An Affidavit and Acknowledgement of Paternity was executed a month later. It appeared to contain the notarized signatures of Mrs. Thomas and Mr. Stephenson.
Mrs. Thomas was incarcerated for most of the first years of the child’s life. However, she was eventually released. In 1998, Mrs. Thomas filed an order to show cause alleging Mr. Stephenson denied her visitation. She also requested that she be awarded custody, claiming that Mr. Stephenson was not related by blood to the child. She claimed the affidavit was a forgery. She requested blood testing.
The court ordered father, mother, and the child to submit to blood tests. Mr. Stephenson asked the court to first determine whether a paternity test was in the child’s best interests. The court denied Mr. Stephenson’s request to first determine if paternity testing was in the child’s best interests before ordering that testing to be completed. Mr. Stephenson brought this special action seeking review of that order.
“Best Interests of the Child” Test Not Required for a Child Born Out of Wedlock
Mr. Stephenson claims the court should have ordered an evidentiary hearing to determine if it was in the child’s best interest to have paternity of the child challenged before ordering paternity testing. The hearing, he argues, should have determined whether the testing is in the child’s best interest. He relies on the case of Ban v. Quigley, 812 P.2d 1014 (1990). That case held that Arizona’s “strong public policy of preserving the family unit” requires a best-interests-of-child determination before paternity testing may be ordered.
However, the Court distinguished the facts in the present case from the Ban facts. In Ban, a third party challenged paternity of a child borne by a married woman; here it is the biological mother. It cited with approval the case of Antonsen v. Superior Court, 918 P.2d 203 (1996), where the court distinguished Ban from cases where the biological mother disputes paternity of a child.
Under Arizona law, a mother may start a proceeding to establish paternity. After paternity is established, the court addresses custody and visitation issues. Any modification of the custody and/ or visitation orders must include an examination of the child’s best interests.
If paternity testing shows that the putative father is not the biological father, the father may seek custody as a non-parent under very limited circumstances. This also requires the court to look into the child’s best interests. The legislature has provided that a paternity determination is made before a custody or visitation determination can be made. A hearing on custody must include a determination of the child’s best interests.
The legislature has not mandated a best interests hearing before paternity testing. Therefore, the lower court did not err in ruling against a best interests hearing before paternity testing involving a child who is born out of wedlock.
Challenging an Affidavit and Acknowledgement of Paternity in Arizona
Mr. Stephenson argued that because of the Affidavit of Acknowledgement of Paternity, he is a “presumptive parent” of the child. Mrs. Thomas claims that Mr. Stephenson is not entitled to a statutory presumption of paternity because he did not file the acknowledgement with the court as the current statutes requires.
However, the Court of Appeals noted that the statute in effect when the affidavit was made did not require it to be filed. The fact that Mr. Stephenson did not file the documents did not deprive him of his presumption of paternity arising from the signed Affidavit of Acknowledgment of Paternity.
Mr. Stephenson argues that, under the law, a voluntary acknowledgement of paternity is presumed valid until proven otherwise. The Court of Appeals agreed. The presumption can only be rebutted by clear and convincing evidence of fraud, duress or material mistake of fact.
Mrs. Thomas might have rescinded the acknowledgement of paternity within 60 days of the date it was entered. After that, she can only challenge it on the basis of fraud, duress or material mistake of fact. She bears the burden of proving one of those elements. If she makes that showing, the court could order the parents and child to submit to genetic testing. If the genetic tests demonstrate that Mr. Stephenson was not the biological father, the court could vacate the determination of paternity.
Here, the trial court ignored the burden of proof imposed on a mother challenging an acknowledgment of paternity. Instead, the court accepted Mrs. Thomas’ bare allegations. Relying on them, it ruled the acknowledgement of paternity to be “suspect”. It concluded, erroneously, that “the court must disregard it”.
The lower court allowed Mrs. Thomas to attack Mr. Stephenson’s presumed paternity without establishing fraud, duress, or material mistake of fact. This was error. One of more of these elements must be established at an evidentiary hearing before the presumption is rebutted.
The Court of Appeals concluded that Mrs. Thomas’s bare allegations of forgery did not meet her burden of proof. She must establish fraud, duress, or material mistake of fact before the court can order mandatory paternity testing. Until she does, Mr. Stephenson’s statutory presumption of paternity precludes the trial court from ordering genetic testing.
The trial court abused its discretion in ordering the parties to submit to genetic testing without first holding this evidentiary hearing. The Court of Appeals vacated the trial court order. It remanded the case back to the trial court for an evidentiary hearing in which Mrs. Thomas must establish grounds to entitle her to relief.