Written by attorney Jeffery Michael Haupt

When a Dad is not a Dad: Undoing Paternity Affidavits in Indiana

It seems like not that long ago, that paternity affidavits weren't worth the paper that they were written on. It was common practice that a paternity affidavit, didn't stop the father's right to a genetic test in a paternity hearing, even if this was not permissible under the current law in place at that time. That all changed in 2007 when the Indiana Court of Appeals had addressed the issue.

Overnight, the paternity affidavit became a document that told many men and children who their legal dad was. Once, signed a paternity affidavit was a great barrier to a man getting the ability to have all parties submit to a court ordered genetic test. Even though the statute allowed for a test in certain circumstances, many people did not quite know how to define those circumstances.

As time has passed we've begun to get a better picutre on when a paternity affidavit dad can successfully challenge the affidavit that he signed.

Mistake of Fact

The Paternity Affidavit Statute in Indiana names three ways that a man can get a genetic test if it has been more than 60 days since he signed the paternity affidavit. Those three ways are mistake of fact, duress, or fraud. The cases to have addressed the issue have dealt with defining instances of when a mistake of fact would exist.

Most recently, actually 6 days ago, the Indiana Court of Appeals dealt with an issue where the mistake of fact argument was raised by the dad, only to be denied by the trial court. However, when you have the mom, the dad, and the State of Indiana saying that there is no way that he can be dad, then you get the result that the Indiana Court of Appeals issued and that is that a mistake of fact existed at the time the paternity affidavit was signed (there was more to it than that, but just to give you a brief overview).

Another instance where the Court of Appeals addressed the definition of material mistake of fact is when a father came to court with a genetic test showing that he was excluded as a possible father for this child.

While these are two extreme examples of when it is clear that there is a material mistake of fact, it does provide some guidance on what you need to look for in your own situation. First and foremost, if you have any doubts do not sign the paternity affidavit. By signing the affidavit, you are acknowledging that you believe yourself to be the father of this child. By not signing the affidavit, you preserve your rights to have a court ordered genetic test if a paternity case is ever filed.

If you have signed the affidavit and now are in court to establish child support for the child in question, you must file any motion to set aside the paternity affidavit or it will be more difficult if not impossible to do at a later time. Once you have filed your motion, you will need to present evidence that shows the material mistake of fact. If it comes down to a he said/she said, and the mother of the child is still stating that you are the father, the chances of the paternity affidavit being set aside are slim.

You will need solid evidence to establish your case, so it is best to talk to an attorney, who can help you show that there is a material mistake of fact that exists thereby opening your door to a genetic test. Some of the evidence that will be helpful are statements or testimony from other people who can testify to any admissions that the mother of the child may have made to them regarding the child not being your child.

Finally, you do not wnat to just sit around and wait for the lawsuit to happen. The sooner that you move forward on this, the better it will be for your case.

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