When the Law Says a Person is the Father but the Facts Suggest Otherwise

Though many fathers do not like to be put on child support, most of them, as they should, accept it. Kids cost money, and if you have a child, especially one for which you are not the main caregiver, it makes sense that the law has a mechanism for making sure you contribute to the costs of raising him/her.

But occasionally, one who is not (or suspects he is not) the biological father might find himself considered the legal father, and under a child support obligation. For instance, under Arkansas law, the husband of a married woman is presumed to be the father of her child. So, if, for instance, the couple was informally separated but not officially divorced, a situation is created by which the law may view someone who did not actually help create the child as the father. Or, as sometimes happens, an unmarried woman might have a child and the man who signs the Paternity Acknowledgment is not the biological father.

This also might happen if a paternity suit is brought against the man the mother believes to be the father and a default judgment is entered against him due to failure to respond. But even if, as a factual matter, he turns out not to be the father, he is still bound by the legal determination of paternity.

So, what is to be done where the law recognizes a particular person as the father but there is some doubt as to whether this is actually the case? Ark. Code Ann. § 9-10-115 provides several bases for undoing such a determination.

For example, one of the provisions that applies when a man has signed an Acknowledgment of Paternity is Ark. Code Ann. § 9-10-115(c). It allows such a person to rescind the acknowledgment ether before “the date that an administrative or judicial proceeding, including a proceeding to establish a support order, is held relating to the child and the person executing the voluntary acknowledgment of paternity is a party” or “[w]ithin sixty (60) days of executing the voluntary acknowledgment of paternity”, whichever happens first.

Section (d) extends that period under certain circumstances, and applies both to mere Paternity Acknowledgments and court orders based on them:

Beyond the sixty-day period or other limitation set forth in subsection (c) of this section, a person may challenge a paternity establishment pursuant to a voluntary acknowledgment of paternity or an order based on an acknowledgment of paternity only upon an allegation of fraud, duress, or material mistake of fact.

Ark. Code Ann. § 9-10-115(d) (emphasis added). The burden of proof on such an allegation rests with the litigant challenging paternity.

Perhaps the most crucial backstop is § 9-10-115(e). It essentially allows any legal father who came into such status without the benefit of a DNA test to undergo such a test and have a previous adjudication of paternity overturned if it turns out he is not the biological father. It may be invoked at any time that a child support order is in effect:

When any man has been adjudicated to be the father of a child or is deemed to be the father of a child pursuant to an acknowledgment of paternity without the benefit of scientific testing for paternity and as a result was ordered to pay child support, he shall be entitled to one (1) paternity test, pursuant to 9-10-108, at any time during the period of time that he is required to pay child support upon the filing of a motion challenging the adjudication or acknowledgment of paternity in a court of competent jurisdiction.

Ark. Code Ann. § 9-10-115(e)(1)(A).

Some important provisions relating to this provision are:

• Unless there is good cause, any child support orders remain in effect while the motion for genetic testing is pending;

• A negative paternity test entitles the legal father to a canceling of the previous paternity order;

• Though a former legal father is not obligated to pay any child support arrears, he also is not entitled to a refund of any previously paid support.

Important ends of paternity law are securing a place for the biological parent in the life of his child and allowing them to forge that crucial parent-child bond, as well ensuring that a man fulfills his financial responsibilities to his child. If you think you might have a basis to overturn a child support obligation based on non-paternity, wish to establish paternity of a child you believe is biologically yours but for whom someone else is recognized as the legal father, or simply want peace of mind, it’s important to consult with an Arkansas Family Law Attorney as soon as you can. Contact our firm by phone, email, or our contact form if you would like your potential case evaluated.