TBA Law Blog


Posted by: Peggy Pulley on Jun 1, 2015

Journal Issue Date: Jun 2015

Journal Name: June 2015 - Vol. 51, No. 6

How to Successfully File a Paternity Fraud Lawsuit

It seems as though the old saying made popular by Maury Povich, “You are not the father” is heading to the courtroom. Paternity fraud is becoming more prevalent in the legal community.

During all the excitement of the birth of a baby, there is also the required signing of certain legal documents. Aside from the birth certificate naming the new baby and providing the names of the mother and father, the father can also sign a document to acknowledge that the baby is his child. This document is a voluntary acknowledgment of paternity that once signed “constitutes a legal finding of paternity on the individual named as the father of the child in the acknowledgment.”1

When your client believes the mother of his child has committed paternity fraud, the first thing to do is determine whether the voluntary acknowledgment was signed when the child was born. Pursuant to Tenn. Code Ann. 24-7-113(c), a signatory to a voluntary acknowledgment shall be permitted to rescind the voluntary acknowledgment if (1). s sworn statement refuting the name of the father on the voluntary acknowledgment is filed in the office of vital records within 60 days of the date of completion of the acknowledgment; or (2) within the 60-day period following completion of the acknowledgment, at any judicial or administrative proceeding during that period at which the signatory is a party and which proceeding relates to the child, by completion of the form described in subdivision (c)(1) or by the entry of an order by the administrative or judicial tribunal which directs the rescission of such acknowledgment.

If the client is within the 60 days of the signing the voluntary acknowledgment, the client can simply file a rescission of voluntary acknowledgment. If it has already been 60 days since he signed the voluntary acknowledgment, then, pursuant to Tenn. Code Ann. 24-7-113(e)(1), the acknowledgment may only be challenged on the basis of fraud, whether extrinsic or intrinsic, duress, or material mistake of fact.

To challenge a voluntary acknowledgment after the 60 days have lapsed, the challenging party has five years after the signing of the voluntary acknowledgment to notify the other signatory and institute the proceeding. If based on the evidence the court finds that there is “substantial likelihood that fraud, duress, or a material mistake of fact existed in the execution of the acknowledgment of paternity, then, and only then, the court shall order parentage tests.” The only way to get around the five-year statute of limitations is to allege fraud in the procurement of the acknowledgment by the mother of the alleged child. The relief sought cannot affect the interests of the child, state or any Title IV-D agency.[2]

What does all this mean?

It means that if your client believes he is not the father of a child and he has already signed the voluntary acknowledgment, he has 60 days to rescind the voluntary acknowledgment. If the 60 days has already elapsed, then he has five years from the date of signing the voluntary acknowledgment to file a lawsuit alleging that he signed the voluntary acknowledgment under fraud, duress or there was a material mistake of fact involved when he signed the voluntary acknowledgment. If the court finds that there is a substantial likelihood that one of those things occurred, the court can order a DNA test.

What if the father does not realize he may not be the father until after five years after he signed the voluntary acknowledgment? There is still a remedy available to your client. Your client must prove that there was fraud involved in order to get around the five-year statute of limitations. If your client can prove he signed the acknowledgment based on the fraudulent statement of the mother, the court can then order a DNA test. Once it is determined that the plaintiff is not the biological father of the child, he is no longer required to continue paying child support.

So now your client has proven fraud, obtained a DNA test, and knows it is not his child. What is his recourse? Can he be awarded a judgment for all of the child support he has paid? What about punishment to the mother? We look at Hodge v. Craig[3] to determine what cause of action a person can have when they have conclusive evidence that the child is not biologically theirs. According to Hodge, the Tennessee Supreme Court found that a man who determines he is not the biological father of a child and has been paying child support for that child can pursue a lawsuit against the mother of the child alleging she committed the tort of intentional misrepresentation.

To prevail on a claim of intentional misrepresentation you must prove the following six elements: (1) that the defendant made a representation of a present or past fact; (2) that the representation was false when it was made; (3) that the representation involved a material fact; (4) that the defendant either knew that the representation was false or did not believe it to be true or that the defendant made the representation recklessly without knowing whether it was true or false; (5) that the plaintiff did not know that the representation was false when made and was justified in relying on the truth of the representation; and (6) that the plaintiff sustained damages as a result of the representation.[4]

Keep in mind that there is a three-year statute of limitations on intentional misrepresentation. The time on the statute begins to run when the alleged father finds out he is not the father or when he should have known that it was a possibility that he was not the father. For example, he knew the baby momma was actually dating other men besides him.

If you can prove that the mother committed intentional misrepresentation what exactly can the plaintiff recover? In Hodge, the Supreme Court held that if the plaintiff proves there was an intentional misrepresentation by the defendant, the plaintiff can be awarded as damages for the child support that was paid, medical expenses that were paid, and any insurance premiums.

While not all clients want the drama and notoriety of being on “Maury Povich” and finding out on national television if they are the father; there will be those clients who do not choose Maury Povich. Those clients do have recourse and can pursue a paternity fraud lawsuit through the legal system.

Notes

  1. Tenn. Code Ann. §24-7-113(a).
  2. Tenn. Code Ann. 24-7-113(e)(2).
  3. Hodge v. Craig, 382 S.W.3d 325 (Tenn. 2012).
  4. Spigner v. Spigner, No. E2013-02696-COA-R3-CV (Tenn. Ct. App. Oct. 1, 2014).


 


Peggy Smith PEGGY R. SMITH is a partner at The Law Firm of Martin Sir & Associates where she focuses mainly on family law and other domestic matters. Smith is a graduate of Nashville School of Law and has been licensed to practice law in Tennessee since 2007. She is a member of the Women’s Political Collaborative of Tennessee. In 2007, she was honored as Law Student Volunteer of the Year by the Tennessee Bar Association for her work with returning military soldiers. Smith has been named one of The National Advocates Top 100 Lawyers, and she recently became a member of the American Inns of Court in Williamson County.