Because the facts of every circumstance is different, it is important to consult with an attorney regarding any particular circumstance. However, this summary does help provide some important information on this topic.
Paternity Cases Examples
In re the Marriage of Brown, 310 S.W.3d 754 (Mo. App. E.D. 2010):
In In re the Marriage of Brown, there was one unemancipated child who was born prior to the marriage. Although Husband’s name was not on the birth certificate of said child, both parties testified that Husband was in fact the biological father. No one else asserted paternity. Despite the undisputed fact that Husband was the father, the trial court did not make such a finding.
When a trial court makes a finding that an individual is the biological father, the court is statutorily required pursuant to RSMo 210.841 to order that the birth certificate be amended. Both Mother and Father requested this relief, but the trial court did not make a determination as to paternity or order the birth certificate changed. The case was reversed and remanded to the trial court to enter a judgment consistent with the statute.
In re C.M.B., 322 S.W.3d (Mo. App. S.D. 2010):
The Southern District in In re C.M.B. held that a bond need not be posted by a movant in arrears for child support payments when an initial petition for a decree of paternity, custody, or visitation is filed. RSMo Sec. 452.455 requires parents in more than $10,000.00 of arrears to post a bond in the amount of the arrearage prior to filing a motion to modify a custody decree only. It should be noted that RSMo Sec. 452.455 has been repealed by House Bill 481, Sec A.
Nevins v. Green, 317 S.W.3d (Mo. App. W.D. 2010):
In Nevins v. Green, Mother, the custodial parent, bore the burden of offering evidence to rebut the presumptive overnight visitation credit in a paternity proceeding. She failed to present any evidence to rebut the presumptive 29% credit based on Father’s 155 overnights.
Further, the Western District held that when parents alternate receipt of the dependency tax exemption, the parent not receiving the exemption must sign a federal tax form declaring that they would not claim the exemption. To merely award Father the dependency tax exemption in alternating years was insufficient.
Wilson v. Cramer, 317 S.W.3d 206, 210 (Mo. App. W.D. 2010)
In Wilson v. Cramer, the Western District ruled that a finding and order by the Division of Child Support Enforcement did not have any preclusive effect on subsequent litigation pertaining to paternity. A signed acknowledgment of paternity did not deprive another man of standing to bring an action claiming paternity of child with no presumed father. “Despite the potential disruptive effect on the child and on the existing father-child relationship of a putative father coming forward at a late date, courts are bound by the terms of the relevant statutes in determining standing to bring a paternity petition.” RSMo Sec. § 210.826.
A.M.C.B. v. Cox, 292, S.W.3d 428 (Mo. App. E.D. 2009):
In this case, Father filed an action for determination of paternity. He filed a motion to be the child’s next friend, which was never objected to by Mother. However, the motion was never ruled upon and a judgment of paternity with a parenting plan was entered without a next friend. The judgment was reversed on appeal because the child was never joined as a party. The UPA requires that a child be made a party through the appointment of a next friend or guardian.
Courtney v. Roggy, 302 S.W.3d 141 (Mo. App. W.D. 2010):
In Courtney, the putative father (Bryan) filed a paternity action and the trial court declared him to be the natural father, gave him visitation and ordered a child support order. Mother (Gina) and her husband (Mark) appealed. The child was born during the marriage of Gina and Mark when Gina had entered an affair with Bryan. When the child was born, Wife signed the acknowledgment of paternity listing Mark as the father. Bryan had submitted to a paternity test, but Gina used the swab of another child to fake the test. Two years later, Wife asks Bryan to submit to another paternity test, which showed him to be the father. When the child was six years old, the relationship between Gina and Bryan ended and Gina does not Bryan see the child. Bryan then filed a paternity action and Mark files an adoption petition. In Mark’s adoption petition, he asks to stay Bryan’s paternity action. This decision was upheld on appeal. The Court found that Missouri law has never prohibited statutorily enumerated persons or entities from filing a paternity suit to establish the existence of paternity, and it has always been the public policy of the State of Missouri to encourage the creation and maintenance of the father and child relationship.
1. Standard of Proof
a. To establish paternity, the standard of proof is by preponderance of the evidence. Jack Cochran and Nancy A. (Beardsley) Garris, Presumptions of Paternity, 21 Mo. Prac., Family Law. 16, 6 (2009). However, to rebut a presumption of paternity, the standard of proof is by clear and convincing evidence. Id. A presumption of paternity is rebutted when paternity is established by another man. Id. According to Cochran and Garris, if two or more presumptions apply and are conflicting, “the presumption which on the facts is founded on the weightier considerations of policy and logic controls.”
2. Father Presumed
a. State ex. rel. Div. of Child Support Enforcement v. Hill, 53 S.W.3d 137 (Mo. App. W.D. 2009); RSMo 210.822.
i. A man is presumed to be the natural father of a child if:
(1) He and the child’s natural mother are or have been married to each other and the child is born during the marriage, or within three hundred days after the marriage is terminated by death, annulment, declaration of invalidity, or dissolution, or after a decree of separation is entered by a court; or
(2) Before the child’s birth, he and the child’s natural mother have attempted to marry each other by a marriage solemnized in apparent compliance with the law, although the attempted marriage is or could be declared invalid, and:
(a) If the attempted marriage could be declared invalid only by a court, the child is born during the attempted marriage, or within three hundred days after its termination by death, annulment, declaration of invalidity, or dissolution; or
(b) If the marriage is invalid without a court order, the child is born within three hundred days after the termination of cohabitation; or
(3) After the child’s birth, he and the child’s natural mother have married, or attempted to marry each other by a marriage solemnized in apparent compliance with law, although the marriage is or could be declared invalid, and:
(a) He has acknowledged his paternity of the child in writing filed with the bureau; or
(b) With his consent, he is named as the child’s father on the child’s birth certificate; or
(c) He is obligated to support the child under a written voluntary promise or by court order.
Relief from Judgment Permitted
a. A man can seek relief from a judgment declaring paternity under Rule 74.06(b) based on fraud, misrepresentation, and misconduct by the adverse party by making a motion for relief within a reasonable time, but not more than one year after the judgment is entered. In State ex. rel. Div. of Child Support Enforcement v. Hill, a motion for relief was filed eight years after the judgment was entered into and was thus barred under Rule 74.06(b). However, the Western District held that an independent action in equity could be brought to set aside a judgment resulting from extrinsic fraud pursuant to 74.06(d).
b. RSMo Sec. 210.823 provides that a signed acknowledgment of paternity form is considered a legal finding of paternity, but it is subject to rescission by either party. Rescission must be in writing and filed with the bureau within the earlier of sixty days from the date of the last signature or the date of the administrative or judicial proceeding establishing support in which the signatory is a party. After the opportunity for rescission has elapsed, the acknowledgment may thereafter only be challenged on the basis of fraud, duress or material mistake of fact with the burden of proof upon the challenger. Wilson v. Cramer, 317 S.W.3d 206, 210 (Mo. App. W.D. 2010); S.A.S. v. B.P., 314 S.W.3d 348 (Mo. App. E.D. 2010).
Keywords: Paternity, DNA Test and Unmarried Parents