Bryan M. v. Anne B. – Fighting to Establish Paternity

For millennials, out-of-wedlock birth is often the norm. A number of studies have revealed that 64 percent of mothers give birth at least once without exchanging vows. Among women under 30, more than half have had births outside of marriage. And nearly half of all mothers have children without ever saying, “I do.” 

This is not to say that fathers aren’t a part of the children’s lives, but the parents are not in a marital relationship. Even if this has no bearing on the relationship parent has with child, it may have implications for the child’s financial stability.

IC 31-14 sets forth laws regarding establishment of paternity, including methods, persons permitted to file, venue and other provisions. IC 31-14-5-3 spells out some of limitations on paternity actions.

Essentially, both parents, if unmarried have three days after the child is born to establish paternity at the hospital via paternity affidavit. If mother is married, husband is presumed to be the father. A man will also be presumed the father if mother has been divorced or widowed less than 10 months. Otherwise, mother or father will have to go through additional administrative steps – and possibly the courts.

The law says the mother, man alleging to be the child’s father or the state must file a paternity action no later than 2 years after the child is born unless:

• Both mother and father jointly waive the limitation and file jointly;
• Support has been furnished by the father acting on his behalf;
• Father acknowledges in writing he is father;
• Father files petition after mother acknowledges in writing he is child’s biological mother;
• Petitioner was incompetent at time child was born;
• Responding party can’t be served with summons during the two year period.

Even in these situations, the action has to be brought within two years or it is forever lost.

An example of a situation in which paternity rights can be lost by waiting too long to file was recently seen in the case of Bryan M. v. Anne B. This was a matter weighed by the Nebraska Supreme Court, but that state has similar laws regarding limitations on establishment of paternity.

According to court records, a man appealed dismissal of a paternity action by the lower court, brought on behalf of himself and “next friend” of the minor child in question. He sought declaration of paternity and custody of a child who was born 8 years before his action was filed.

In that state, statute of limitations on paternity action is four years. However, he argued the statute should be tolled based on legal doctrines of fraud and equitable estoppel because the mother had made misrepresentations that he was not the father.

Mother was married to another man, and had been since 1999. In five years of marriage, the two tried unsuccessfully to have a child. Plaintiff had been married 25 years and had two children.

In late 2003 and early 2004, mother and plaintiff regularly engaged in an extramarital affair and regularly had sexual intercourse without contraception. Mother also continued relations with her husband.

When mother became pregnant, she ended relationship with plaintiff. Plaintiff repeatedly inquired about whether he was father, but was told he was not. When the child was born in 2004, plaintiff again asked if he was the father and was told no.

Meanwhile, the husband raised the child as his own. Child had only limited contact with plaintiff at meetings that were unplanned. Husband for all intents and purposes was the child’s father.

In 2012, mother and plaintiff resumed their extramarital affair. At that time, plaintiff requested a DNA test to determine whether he was the father. The test showed he was, in fact, the child’s biological father.

But that doesn’t automatically grant legal rights. The following year, plaintiff filed his initial complaint, seeking to establish paternity and custody. In so doing, he alleged the four-year statute of limitations on such actions was unconstitutional, and even if it wasn’t, should be tolled based on mother’s alleged deception.

District court rejected this argument. First, the court found plaintiff hadn’t been deceived, but simply failed to exercise diligence after the child was born. It was also established plaintiff didn’t initially want to be the father because he wanted to salvage his own marriage.

Plaintiff also tried to name himself “next of friend” to child because, while fathers in the state only have four years to establish paternity, someone who is a guardian or “next of friend” to the child can do so anytime before the child’s 18th birthday. (Again, this is just in Nebraska.) However, the court denied him this designation, as the boy lived solely with his biological mother at the time of this action.

The Nebraska Supreme Court upheld this finding.

Those in Indiana exploring the possibility of legally establishing paternity – and all the benefits and implications that come with it – should contact an experienced family law attorney to learn more about your options and obligations.

Indiana Family Law Attorney Burton A. Padove handles divorce and child custody matters throughout northern Indiana, including Gary and Hammond.

Additional Resources:

Bryan M. v. Anne B., Feb. 12, 2016, Nebraska Supreme Court

More Blog Entries:

Gertiser v. Gertiser – Indiana Supreme Court Weighs Spousal Maintenance, Dec. 20, 2016, Gary Child Paternity Lawyer Blog