Time Limit on Challenging an Acknowledgment of Paternity in Arizona
When a child is born to an unmarried mother, she can establish paternity by means of an acknowledgement of paternity. This document, properly signed and filed, is presumed valid, but can be rescinded or challenged. Both rescission and challenge are subject to legal time limits. Can these time limits be extended by the court when paternity is uncertain and has been uncertain for months? In Andrew R. v. Arizona Dep’t of Economic Security, 224 P.3d 950 (2010) the Arizona Court of Appeals addressed this issue.
Facts and Procedure
In 2007, when mother was 17 years old, she had a child. Mother eventually began living with the father. They signed an acknowledgement of paternity that named the child’s father. A new birth certificate was issued naming the father.
In 2008, mother, father and the child moved in with mother’s brother. Father moved out in mid-March, and a new boyfriend moved in. A few weeks later, the occupants were evicted.
In April, 2008, the Arizona Department of Economic Security (“ADES”) filed a dependency petition. It charged that mother was unable to parent the child due to an unfit home and cocaine abuse. ADES also alleged that father was unable to parent the child due to substance abuse.
At the hearing, the juvenile court found the child dependent as to mother. The court issued a preliminary protective order placing the child in the legal custody of ADES and the physical custody of mother’s mother (grandmother).
On April 28, 2008, the juvenile court held a dependency hearing regarding father. He admitted that he might not be the child’s biological father. However, he argued that he was the child’s legal father because of the acknowledgement of paternity. Father asked for a lot of visitation with the child. He also participated in parent aide services, substance abuse assessment/treatment, and substance abuse testing.
At the June 11, 2008 pretrial conference, ADES agreed to put the child in father’s custody. However, mother and the child’s guardian ad litem objected and requested a paternity test. The court set an evidentiary hearing for June 25, 2008.
At the hearing, the parties discussed changing physical custody of the child to father or mother. The juvenile court scheduled a hearing on changing the physical custody of the child.
On August 1, 2008, mother filed a “Notice of Request for Relief from Judgment of Paternity” pursuant to Rule 60(c). She claimed that paternity was established fraudulently and under duress. Father moved to dismiss this as untimely, but the court denied the motion. The parties submitted written closing arguments.
The child’s guardian ad litem supported mother’s request for relief, and ADES supported father. ADES also moved for a change in physical custody of the child to father.
The juvenile court granted mother’s Rule 60(c) request for relief from the presumption of paternity. It denied ADES’s motion for change of custody to father. Mother’s Rule 60(c) motion was not filed until August 1, 2008. However, the court ruled it timely because the contention that father was not the father was raised at earlier hearings.
The court ruled that relief was appropriate because the parties signed the acknowledgement of paternity without believing he was the father. Father appealed.
Effect of Voluntary Acknowledgement of Paternity
Arizona law allows the parent of a child born to an unmarried couple to establish paternity in a variety of ways. One way is to file a notarized acknowledgement of paternity. This voluntary acknowledgement of paternity is presumed valid and binding unless proven otherwise.
Rescinding or Challenging Voluntary Acknowledgement of Paternity
A voluntary acknowledgement of paternity properly executed and filed has the same force and effect as a superior court judgment. Either parent can rescind the acknowledgement for any reason within 60 days of signing.
Here, mother could have rescinded the acknowledgement within 60 days of December 14, 2007. After the 60 days, you can only challenge the acknowledgement of paternity by claiming fraud, duress, or material mistake of fact. The person challenging it bears the burden of proof.
Under Rule 60(c) of the Arizona Rules of Civil Procedure, this must be made within six months of the acknowledgement date. Here, mother moved under Rule 60(c)(3), her motion for relief was not timely. It was filed on August 1, 2008. This was more than six months after the acknowledgement of paternity was executed on December 14, 2007.
The Court of Appeals disagreed with the lower court’s rationale for extending the six-month time limit. Although father’s paternity was discussed throughout the dependency proceedings, that does not satisfy Rule 60(c)(3). The Rule requires that a motion is filed within the six-month period.
Had mother and father wished to establish paternity through genetic testing before acknowledging paternity, they could have done so. They did not do so. At some point in time, a child’s need for permanency must outweigh the ability of a party who has acknowledged paternity to challenge that acknowledgement. The limitation provided by the Rules fill this need.
The Court of Appeals vacated the juvenile court’s orders and remanded for further proceedings consistent with this decision. That includes reconsideration of the motion for change in physical custody to father.