as: 192 Ariz. 475, 967 P.2d 616)
of Appeals of Arizona,
1, Department C.
and Cheryl STEPHENSON, husband and wife, Petitioners,
Honorable Daniel E. NASTRO, Judge of the Superior Court, in
the State of
In and For the COUNTY OF MARICOPA, Respondent Judge,
THOMAS, Real Party in Interest.
1 CA-SA 98-0238.
order regarding paternity testing is an interlocutory order appropriate for
special action review.
of Appeals would accept special action jurisdiction to review denial
of putative father's request for evidentiary hearing prior to ordering
that parties submit to blood test to determine paternity of
child; issues as to whether
it would be in child's best interests to remove her
from home of putative father and his wife, with whom
she had spent most of her life, and return custody
to mother, and whether mother could collaterally attack her prior
acknowledgement of paternity, were issues of first impression and statewide
importance, and required speedy resolution.
to determine best interests of child was not required prior
to paternity testing, where mother of child was party challenging
paternity, even though child had lived with putative father and
his wife as family unit for most of her life.
A.R.S. § 25-803,
subd. A, par. 1.
father was entitled to statutory presumption of paternity where, although
mother and putative father were never married, they executed notarized
acknowledgement of paternity. A.R.S. § 25-814.
voluntary acknowledgement of paternity is presumed valid and is binding
on the parties until it is rebutted by clear and
convincing evidence, and may only be collaterally attacked on grounds
of fraud, duress or material mistake of fact. A.R.S. § 25-812,
party challenging the validity of a voluntary acknowledgement of paternity
bears the burden of proof, and must make an evidentiary
showing, beyond just a mere allegation, of a permissible basis
for such a challenge. A.R.S. § 25-
bare allegations that her signature on acknowledgement of paternity was
"forged" and that putative father was not biological parent of
child were insufficient, standing alone, to meet her burden of
proof to establish grounds of fraud, duress, or material mistake
of fact that would enable trial court to order mandatory
paternity testing, and unless mother could make such evidentiary showing
to establish threshold basis for relief from presumption of validity
of affidavit of acknowledgement of paternity, putative father's statutory presumption
of paternity precluded mandatory genetic testing over his objection. A.R.S.
presumption that it is in child's best interest to award
custody to parent over nonparent did not apply where mother
sought to regain custody of child from putative father who,
along with mother, had executed notarized acknowledgement of paternity, even
though mother alleged that her signature on acknowledgement of paternity
was "forged" and that putative father was not biological parent
of child. A.R.S. § 25-415,
custody order which found that identity of child's biological father
was unknown did not preclude putative father's assertion of paternity,
where finding was not based upon any evidentiary showing but
only on stipulation by parties, order was entered prior to
mother and father's execution of notarized acknowledgement of paternity, and
mother had not ever alleged that anyone other than putative
father was father of her child.
O'Connor, Cavanagh, Anderson, Killingsworth & Beshears by Christina S. Hamilton,
Phoenix, for Petitioners.
Phillips & Associates by Laura A. Lehan, Phoenix, for Real
Party in Interest.
Petitioner Myron Stephenson, the presumed father of the child involved
in the underlying custody dispute, brings this special action from
the trial court's order requiring him to submit to paternity
[FN1] Petitioner contends that the trial court abused its discretion
in requiring such
testing without a prior determination that paternity testing is in
the best interests of the child, or, in the alternative,
without conducting an evidentiary hearing to determine the merits of
the biological mother's collateral attack on the validity of her
previously executed affidavit of acknowledgement of father's paternity. Although we
disagree with father's first contention, we agree with his second
argument, and for the following reasons, we accept special action
jurisdiction and grant relief.
Petitioner's wife has joined in the petition for special action.
However, because she has not been ordered to submit to
genetic testing, we do not consider her a party aggrieved
by the trial court's order.
AND PROCEDURAL BACKGROUND
The minor child was born to mother, an unmarried woman,
on April 4, 1992. On April 5, 1992, father named
himself as "parent" and signed the child's birth certificate, which
was registered with the state on April 23, 1992. The
child has resided with father and his wife for more
than six years, since she was approximately one month old.
Mother was incarcerated for most of the child's life.
In January 1996, father and his wife and mother entered
into a "Stipulation
re: Child Custody," in which mother indicated that she was
"unable to care for the child at this time," and
the parties agreed that the court should award custody of
the child to father and his wife, with "reasonable access
to the child" to mother. Regarding paternity, the stipulation stated:
[mother] does not know with certainty the identity of the
biological father of the minor child, and that paternity of
the child has not been established by a court of
On April 29, 1996, an order was entered in Maricopa
County Superior Court, awarding "permanent custody" of the child to
father and his wife, awarding reasonable visitation to mother, and
otherwise adopting the facts set forth in the stipulation.
On May 15, 1996, an "Affidavit of Acknowledgement of Paternity"
was executed, which, on its face, appears to contain notarized
signatures of both mother and father, set forth on a
form provided by the Arizona Department of Health Services, Office
of Vital Records. That affidavit declared father to be the
biological father of the child.
On January 21, 1998, mother filed in superior court a
"Petition for Order to Show Cause Regarding Child Custody and
Visitation," alleging that father and his wife had denied her
any visitation with the child since her recent marriage in
October 1997, and requesting that the prior custody order "be
revoked" with custody
returned to mother, or, in the alternative, that mother be
granted specific visitation rights. Mother stated that she is currently
rehabilitated and a married parent of two other children. As
additional grounds in support of change of custody, mother alleged:
and his wife] have no blood relationship to the child
filed an affidavit of acknowledgement of Paternity with the State
of Arizona, ... that was supposedly signed by [mother] that
is an obvious forgery. This forgery was obviously filed by
[father] and signed by persons unknown. [Father] also filed a
father's affidavit of acknowledgement and filed it with the State
claiming to be the father. His affidavit will be proven
false by a DNA test.
Four months later, on May 27, 1998, mother filed an
"Expedited Motion for Blood Testing," seeking DNA blood testing of
father, the child, and mother, pursuant to Rule 35, Arizona
Rules of Civil Procedure, for the following reasons:
is at issue. Mother contends that [father] is not the
true or adoptive father of [the child.] Custody and visitation
are at issue, as well. Under the statutory scheme now
in effect, a biological parent is presumed to be awarded
the primary custody in the child's best interest against a
testing is also necessary and is in the best interest
of [the child] because she is half American Indian and
her heritage and privilege which comes therewith is at stake.
establishing [father's] legal paternity, no testing was done to date.
[Father and his wife] secured the voluntary acknowledgement of paternity
from the Mother. However, the acknowledgement was not truly voluntary.
Mother was about to be incarcerated at the time these
documents were generated. Further, Mother contends not all the documents
are her actual signatures.
At a hearing on mother's motion for blood testing on
May 28, 1998, the court ordered father, mother, and the
child "to submit to the drawing of blood specimens and
the taking of deoxyribonucleic acid [probe] samples, or both, for
paternity testing." On June 3, 1998, the court heard father's
argument for reconsideration of the paternity issue; the minute entry
from that hearing summarizes father's argument:
Although the minute entry indicates that a court reporter was
present, no transcript has been filed in this special action.
for [father] indicates to the court that there is an
affidavit of acknowledgement of paternity wherein [father] acknowledges paternity, and
that pursuant to A.R.S. 12-582,[
[FN3]] that should constitute a judgment that he
is the parent of the said child. The court declines
to accept that as res judicata, and based upon that,
the court affirms its previous minute entry of May 28,
1998. The court is in receipt of an affidavit of
acknowledgement of the attorney.
Now renumbered as A.R.S. § 25-812,
by Laws 1996, ch. 192, § 14.
for [father] indicates that the affidavit does contain the mother's
signature and he will forward such to the court....
On August 26, 1998, at a telephonic status hearing on
the custody petition, the court considered father's motion for an
evidentiary hearing, and then made the following rulings, which form
the basis for this special action:
provides that "The Court on its own motion, or on
motion of any party to the proceedings, shall order the
mother, her child or children, and the alleged father to
submit to the drawing of blood samples or the taking
of deoxyribonucleic acid probe samples.["] In applying this statute, the
court must specifically consider whether it would be in the
best interest of the child for the case to proceed.
168 Ariz. 196, 812 P.2d 1014 (App.1990).
the present situation [mother] seeks to establish paternity under A.R.S.
which permits the Mother to commence paternity proceedings. [Father] maintains
that [mother] signed an Affidavit of Acknowledgement of Paternity, recognizing
[father] as the father of the child. The validity of
this Affidavit has been challenged by [mother] as a forgery
and the court must disregard it at this point.
requests that if the Court disregards the affidavit and orders
Paternity Testing that a hearing to determine what is in
the best interest of the child be held first.... [Father
and his wife] maintain that the child knows no other
family but [them] and to disrupt that stable family relationship
now by allowing a paternity action is not in the
best interests of the child.
* * *
present [facts] do not suggest the formation of a "family
unit" that would warrant such protection. [Mother] entered into the
Custody Stipulation because she was incarcerated and agreed to give
[father and his wife] custody of the child because she
felt it was at that point to be in the
child's best interest. The Stipulation left open the possibility that
[mother] could regain custody of the child when [mother] was
better able to care for the **620
child. [Father and his wife] were only granted temporary custody
of the child while [mother] was incarcerated and rehabilitating herself,
the "family unit" as put forth in Ban
could not exist because there always existed the possibility [mother]
would return and seek to modify the Custody
Stipulation. Absent a protectable "family unit," the court can order
the parties to submit to paternity tests without first holding
a "best interest" hearing.
to [father's] claim that he is the presumptive father, A.R.S.
25- 814(A)(1) presumes a man to be the father if
"he and the mother of the child were married at
any point in the ten months immediately preceding the birth."
As [father and mother] were never married, and the Affidavit
of Paternity is suspect, [father] cannot be considered the presumed
father. Without this presumption [father] has no special rights that
warrant a hearing prior to the ordering of the test
that will establish the child's paternity.
On this basis, the trial court denied father's request for
an evidentiary hearing and ordered the parties to submit to
paternity testing. Father brought this special action from that order.
One week after this special action was filed, on September
9, 1998, the mother's tribe, the Tohono O'odham Nation, filed
a motion to intervene in the custody action and included
a certificate of approval of the child's enrollment in the
tribe. The tribe also filed a motion to invalidate the
1996 custody order as a "foster care placement" done without
compliance with the provisions of the Indian Child Welfare act,
25 U.S.C. § 1913(a).
the custody determination is not before us in this special
action, the tribe is not a party to these proceedings.
We note that the tribe's involvement is based solely on
its contention that father is a nonparent, which we conclude
has not been established. We therefore find it premature to
address the tribe's role in the custody proceedings, and we
limit our review in this case solely to the order
requiring paternity testing.
¶ 10 An order
regarding paternity testing is an interlocutory order appropriate for
special action review. Antonsen
v. Superior Court,
186 Ariz. 1, 4, 918 P.2d 203, 206 (App.1996). Additionally,
because father raises issues of first impression and statewide importance,
which require speedy resolution because they involve the custody of a
young child, we conclude that special action relief is warranted, and,
in the exercise of our discretion, we accept special action jurisdiction.
v. Quigley, 168 Ariz.
196, 197, 812 P.2d 1014, 1015 (App.1990).
Best Interests of the Child
We first address father's contention that the trial court abused
its discretion by not holding an evidentiary hearing on the
best interests of the
child before ordering paternity testing. He relies primarily on this
court's decision in Ban
in which we recognized Arizona's "strong public policy of preserving
the family unit when neither the mother nor the mother's
husband disavows the latter's paternity of the child." Id.
at 199, 812 P.2d at 1017. Under those specific circumstances,
trial court must specifically consider whether it would be in
the best interests of the child for the case to
proceed before a putative father may be permitted to seek
blood tests in an attempt to rebut the presumption of
the husband's paternity.
we recognized that an attack on paternity by a presumed
stranger outside the "family unit" could have a potentially "irreversible
disruption" in a situation where, "because of bonding it is
in the child's best interest to continue his or her
relationship with the presumed father." Id.
at 200, 812 P.2d at 1018. Because the trial court
had not inquired into the child's best interests before ordering
paternity testing of the presumed father in Ban,
we vacated the order and remanded for an evidentiary hearing.
This situation, however, is distinguishable from Ban,
not only factually, but on a public policy basis as
well. The person challenging paternity in this case is the
biological mother of the child, not a presumed stranger to
the "family unit." In an analogous situation, *480
out that a party may obtain paternity testing without any
showing of " good cause," when one of the statutorily
presumptive parents, as opposed to a stranger to the family
unit, challenges paternity. See
186 Ariz. at 5, 918 P.2d at 207.
we discussed several cases that have required a finding of
the best interests of the child before a paternity blood
test is ordered, including Ban
and we pointed out that they had in common a
situation where "the presumptive parents do not challenge paternity but
a third party attempts to invade the established family structure."
at 6-7, 918 P.2d at 208-09. We distinguished those cases
on the following basis:
Arizona, however, the "best interests of the child" cannot prevent
mandatory paternity testing under A.R.S. section 12-847(C) because "the determination
of the best interest of the child must be made
separately, after the resolution of biological paternity," when the mother
contests the presumptive father's paternity, and when the tests confirm
the presumptive father is not biologically related to the child.
169 Ariz. 92, 94-96, 817 P.2d 37, 39-41 (App.1991). Thus,
this line of cases preventing mandatory testing for policy reasons
does not apply in this case where mother asserts that
husband is not the biological father.
at 7, 918 P.2d at 209.
Father argues that, since Antonsen
was decided, this court recently held
that a best interests determination was necessary even when the
paternity of a presumptive father was challenged by the biological
Worcester v. Worcester,
245 Ariz. Adv. Rep. 15 (App. June 10, 1997). That
case, however, has been vacated by our supreme court, and
is of no precedential value. See
In re the Marriage of Worcester,
270 Ariz. Adv. Rep. 65, 960 P.2d 624 (1998).
In its vacating opinion, the supreme court rejected a biological
mother's challenge to her former husband's presumptive paternity of a
child born during the marriage as "improperly presented to the
trial court in a motion seeking relief from the [dissolution]
decree pursuant to Rule 60(c)." Id.
at 26, 960 P.2d at 626. The court pointed out
that the mother had testified at the dissolution hearing and
attested in the joint parenting plan that her former husband
was indeed the child's father. Because she had "knowingly and
intentionally perpetrated a fraud on another party and the court,"
she was not entitled to relief under the equitable provisions
of Rule 60(c). Id.
in this case, father has alleged that mother has "written
multiple letters to Father, advising him that he is the
father" of the child. Although several of these letters are
included in father's special action appendices, we do not consider
their content or validity because we have
no indication in this record whether they were considered by
the trial court. Father is not precluded, however, from presenting
this evidence on remand to rebut mother's allegations of fraud,
duress, or mistake of fact pursuant to her Rule 60(c)
also note that mother has not sought to establish the
paternity of any other father in this proceeding. The Worcester
court also found this factor significant, observing, albeit in dictum,
"We find no suggestion in the statutes that the court
must or may permit the presumption to be rebutted unless
the mother is seeking child support from another." Id.
at 27, 960 P.2d at 627.
Father also relies on a Kansas case cited in the
re Marriage of Ross,
245 Kan. 591, 783 P.2d 331 (Kan.1989). The Ross
court, relying on Ban
held that the trial court had erred in refusing to
hold a best interests hearing before ordering paternity testing of
the presumptive father at the request of the biological mother.
[FN6] The court reasoned, "The shifting of paternity from the
presumed father to the biological father could easily be detrimental
to the emotional and physical well-being of any child." Id.
at 338-39. We note that the Ross
court relied on the Uniform Parentage Act, see
783 P.2d at 334, which has not been adopted in
Arizona, although we have found its policies persuasive.
See Ban v. Quigley,
168 Ariz. at 199, 812 P.2d at 1017. Although we
agree with the Ross
court's observation, we are compelled to follow the policies set
forth by our legislature in this area.
Procedurally, the mother's action was dismissed in Ross,
but the guardian ad
for the child proceeded on the motion for blood testing,
arguing that it was in the child's best interest to
obtain a determination of his biological father. 783 P.2d at
333. Although a guardian ad
would not technically be considered a "stranger" to the family
unit, in Ross
the court found that the guardian ad
had not adequately conducted an investigation to be able to
represent the child's best interest at the hearing. 783 P.2d
at 336. Thus, to the extent we categorized Ross
as a case in which an "interloper" attempted to invade
the family unit, we believe that analysis is correct.
Our statutory scheme provides that a mother may commence a
proceeding to establish paternity. Ariz.Rev.Stat. (A.R.S. § )
After paternity is established, the court may address custody and
visitation issues. A.R.S. § 25-803(B).
If father has established paternity, custody and visitation are determined
pursuant to A.R.S. § 25-408.
A.R.S. § 25-
803(B). Any modification of the child's custody and visitation necessarily
an examination of the child's best interests at that time.
A.R.S. § 25-408(B);
A.R.S. § 25-403(A).
If, however, mother establishes father's nonpaternity, father may still seek
to retain custody as a nonparent pursuant to A.R.S. § 25-415,
which also necessitates an inquiry into the child's best interests.
A.R.S. § 25-415(B)(C).
Thus, the legislature has adequately provided for an inquiry into
the best interests of the child, regardless of the paternity
determination, and has determined that the issue will be addressed
once a paternity determination is made upon request of a
proper party. [FN7]
As we noted in Antonsen,
"the legislature, by definitively narrowing the category of who can
be a 'party' to a paternity proceeding, has thereby implicitly
determined who has 'good cause' to request mandatory paternity testing...."
186 Ariz. at 7, 918 P.2d at 209. Similarly, the
legislature, by providing for a paternity determination upon the request
of a presumptive parent prior to a custody or visitation
determination based on the child's best interests, has not mandated
a best interests hearing prior to paternity testing. Accord
R.A.J. v. L.B.V.,
169 Ariz. 92, 96, 817 P.2d at 37, 41 (App.1991).
We do not address whether the child should be made
a party to these proceedings at that time and have
a guardian ad
appointed to protect her interests. We have pointed out in
the past that conflicts of interest
between the presumptive parents may mandate such a procedure. See
R.A.J. v. L.B.V.,
169 Ariz. 92, 96-97, 817 P.2d 37, 41-42 (App.1991).
¶ 18 In this case, where
the biological mother of the child challenges the paternity of the presumed
father, we cannot conclude that the trial court abused its discretion
in not holding an evidentiary hearing on the best interests of the child
prior to granting mother's motion for paternity testing. Although
we certainly disagree with the trial court's reasoning that father and
the child did not constitute a "family unit," we cannot fault
the court's legal conclusion that a best interests hearing was not required
prior to paternity testing under these circumstances.
Attack on Prior Acknowledgement of Paternity
Father also challenges the trial court's paternity testing order on
the basis that it allows mother to make a statutorily
impermissible collateral attack on her prior acknowledgement of father's paternity.
The trial court's ruling explicitly rejected this argument because mother
had alleged her affidavit was "a forgery and the court
must disregard it at this point." That ruling also explicitly
rejected father's argument that, from the face of that affidavit,
father was a "presumptive parent," because of the "suspect" nature
of the affidavit as well as the fact that father
and mother were never married.
We conclude that the trial court misapplied the burden of
proof and failed to consider the statutory presumptions that apply
in this case.
¶ 20 Mother contends
that father is not entitled to a statutory presumption of paternity because
the parties were never married, and because father failed to comply with
the following provisions of former A.R.S. § 12- 852,
[FN8] in effect at the time father acknowledged paternity:
Former A.R.S. § 12-852,
to which father and the trial court refer, was renumbered
as A.R.S. § 25-812
by Laws 1996, ch. 192, § 24.
The version quoted here was prior to the amendment by
Laws 1997, ch. 219, § 39,
which added subsections that are discussed infra.
Our analysis assumes, without deciding, that the statutory scheme in
effect at the time of its execution applies to the
affidavit of acknowledgement of paternity and that the statutory scheme
in effect at the time of its filing applies to
mother's court challenge of that acknowledgement. We would not reach
a contrary result, however, by application of any of the
subsequent amended versions of the applicable statutes to this case.
A. This state or the parent of a child born
out of wedlock may establish the paternity of a child
by filing one of the following with the clerk of
the superior court:
A birth certificate signed by the mother and father of
a child born out of wedlock.
A notarized statement signed by both parents acknowledging paternity or
separate substantially similar notarized statements acknowledging paternity.
An agreement by the parents to be bound by the
results of genetic testing including any genetic test previously accepted
by a court of competent jurisdiction, or any combination of
genetic testing agreed upon by the parties, and an affidavit
from a certified laboratory that the tested father has been
A birth certificate accompanied by the statement authorized under subsection
D of this section.
On filing a document required in subsection A of this
section with the clerk of the superior court, the clerk
shall issue an order establishing paternity, which shall include the
social security number of the parents.
On entry of an order by the clerk of the
superior court, the paternity determination has the same force and
effect as a judgment of the superior court.
If the birth of a child born out of wedlock
occurs in a health care institution, the mother and father
may sign a written, notarized statement acknowledging the father's paternity.
This statement shall accompany the certificate of live birth filed
pursuant to § 36-322.
Former A.R.S. § 12-852
After its renumbering as A.R.S § 25-812,
this section was amended by Laws 1996, ch. 170, § 2.
effective July 20, 1996, after father's acknowledgement of paternity, to
allow challenge to that acknowledgement pursuant to Rule 60(c), Arizona
Rules of Civil Procedure. It was subsequently amended in 1997
to its current version, which now provides an additional, alternative
way to establish paternity that blends the former provisions:
state or the parent of a child born out of
wedlock may establish paternity by filing with the department of
health services pursuant to § 36-322
either a notarized statement that contains the social security numbers
of both parents, that is signed by both parents and
that acknowledges paternity or by separate but substantially similar notarized
statements that acknowledge paternity. A notarized statement that acknowledges paternity
may be filed with the department of economic security. These
statements shall be transmitted to the department of health services.
A statement made pursuant to this subsection is a determination
of paternity and has the same force and effect as
a superior court judgment.
Mother asserts that father failed to file with the superior
court either the signed birth certificate or the acknowledgement of
paternity, that he never obtained an order of paternity from
the court, and that he thus failed to obtain a
paternity determination that has the force and effect of a
judgment from the superior court.
We note, however, when the affidavit of acknowledgement of paternity
was executed in 1996, the statutory scheme provided, and presently
provides, the following presumption:
A man is presumed to be the father of the
A birth certificate is signed by the mother and father
of a child born out of wedlock.
A notarized statement is signed by both parents acknowledging paternity
or separate substantially similar notarized statements are signed acknowledging paternity.
Any presumption under this section shall be rebutted by clear
and convincing evidence....
A.R.S. § 25-814.
No requirement of filing a document with the superior court
is mandated for this presumption to attach.
Additionally, at that time, the following provision existed regarding the
filing of a birth certificate:
If the mother of a child is unmarried at the
time of birth of the child and was unmarried throughout
the ten months immediately preceding such birth, the name of
the alleged father, if any, shall not be entered on
the birth certificate unless sworn statements acknowledging such paternity are
voluntarily presented by both the alleged father and the mother,
or unless paternity has been established by a court of
A.R.S. § 36-322(G)
[FN10] Thus, the legislature envisioned that either a sworn acknowledgement
or a court order was sufficient to establish paternity on
the child's birth certificate.
Effective July 20, 1996, two months after the affidavit of
paternity was executed, the legislature amended this section to provide:
the mother of a child is unmarried at the time
of birth of the child and was unmarried throughout the
ten months immediately preceding the birth, the name of the
alleged father, if any shall not be entered on the
birth certificate unless sworn statements that comply with § 25-812,
subsection A, paragraph 2 acknowledging paternity are voluntarily presented by
both the alleged father and the mother, or unless paternity
has been established by a court of competent jurisdiction. The
of paternity that is made pursuant to this subsection is
a determination of paternity and has the same force and
effect as a judgment of the superior court, except that:
The mother or the alleged father may rescind the acknowledgement
at any time within sixty days after presenting the statement
acknowledging paternity by filing with the department of economic security
a notarized rescission of paternity on a form provided by
the department. The department of economic security shall provide a
copy of each rescission of paternity to the state registrar.
A person may challenge a paternity determination pursuant to § 25-
812, subsection D.
(1996). Under both this version, and the subsequent 1997 amendments
to current A.R.S. § 36-322(F),
Laws 1997, ch. 155, § 1,
and ch. 219, § 45,
an affidavit of acknowledgement of paternity acquired the force and
effect of a superior court judgment, without the necessity of
obtaining a court order pursuant to A.R.S § 12-812(B)
The fact that father did not additionally pursue the alternative
procedure of filing these documents with the superior court did
not deprive him of his paternity presumption otherwise acquired under
these alternative statutes. This conclusion is bolstered, in our opinion,
by the legislature's subsequent
1997 amendment to § 25-812
to add subsection D, which now specifically provides an alternative
procedure to acknowledge paternity, and which constitutes a blending of
these former provisions. See
note 10, supra.
At the time mother filed her challenge to father's voluntary
acknowledgement of paternity, on January 21, 1998, the following statutory
procedure was available to her:
mother, father or child, or a party to the proceeding
on a Rule 60(c) motion may challenge a voluntary acknowledgement
of paternity at any time after the sixty day period
[for rescission, provided in subsection H] only on the basis
of fraud, duress or material mistake of fact, with the
burden of proof on the challenger and under which the
legal responsibilities, including child support obligations of any signatory arising
from the acknowledgement shall not be suspended during the challenge
except for good cause shown. The court shall order the
mother, her child or children and the alleged father to
submit to genetic testing and shall direct that appropriate testing
procedures determine the inherited characteristics, including blood and tissue type.
If the court finds by clear and convincing evidence that
the genetic tests demonstrate that the established father is not
the biological father of the child, the court shall vacate
the determination of paternity and terminate the obligation of that
party to pay ongoing child support.
A.R.S. § 25-812(E)
Father contends, and we agree, that, at a minimum, this
statutory scheme presumes that a purported voluntary acknowledgement of paternity
is valid and binding until proven otherwise. The legislature has
conferred on an affidavit of acknowledgement of paternity a presumption
of validity, which may be rebutted only by clear and
convincing evidence, and has strictly limited the avenues of collateral
attack on such a determination to only those involving "fraud,
duress or material mistake of fact." [FN11]
The current limitations in A.R.S. § 25-812(E)
were recently imposed. See
Laws 1997, ch. 219, § 39.
The prior version of this statute, former A.R.S. § 25-812(D),
allowed an action to challenge a voluntary acknowledgement of paternity
on any ground "[p]ursuant to rule 60(c) of the Arizona
rules of civil procedure...." See
Laws 1996, ch. 170, § 2.
This amendment appears to exhibit the legislature's intent to more
narrowly restrict collateral attacks on voluntary acknowledgements of paternity that
are not timely rescinded.
Here, the trial court ignored the statutorily mandated burden of
proof imposed on mother as the party challenging the validity
of the acknowledgement. Instead, the court accepted as true mother's
bare allegations that the voluntary acknowledgement of paternity was "suspect"
it was challenged as a "forgery" and concluded, erroneously, that
"the court must disregard it at this point." By failing
to afford to father the statutory presumption to which he
was entitled pursuant to A.R.S. § 25-
814(A)(4), the court allowed mother to collaterally attack father's presumed
paternity without first factually establishing the threshold statutory grounds of
fraud, duress, or material mistake of fact by a Rule
60(c) evidentiary hearing. We conclude that this cannot be what
the legislature intended.
Although A.R.S. § 25-812(E) provides for mandatory genetic testing
on motion of a party to a proceeding challenging a voluntary acknowledgement
of paternity, the statute explicitly places the burden of proof on the
challenger, and therefore implicitly requires an evidentiary showing,
beyond just a mere allegation, of a permissible basis for such a challenge.
See, e.g., Eymard v.
Terrebonne, 560 So.2d
887 (La.App.1990) (father did not carry evidentiary burden to prove that
signature on affidavit of paternity was either forged or obtained through
duress). Indeed, even before these statutory restrictions
existed, we historically prohibited a collateral attack on a prior determination
of paternity, absent an evidentiary showing that the prior determination
was "the product of extrinsic fraud" by "affirmative proof
of irregularity." Bill
By and Through Bill v. Gossett,
132 Ariz. 518, 520, 647 P.2d 649, 651 (App.1982).
We conclude that, on this record, mother's bare allegations that her
signature was "forged" and that father is not the biological
parent of the child are insufficient, standing alone, to meet her burden
of proof to establish grounds of fraud, duress, or material mistake of
fact that would enable the court to order mandatory paternity testing
pursuant to A.R.S. § 25-812(E). Unless mother makes
such an evidentiary showing to establish a threshold basis for relief
from the presumption of the validity of the affidavit of acknowledgement
of paternity, father's statutory presumption of paternity precludes the
trial court from ordering mandatory genetic testing over father's objection.
Any other interpretation of A.R.S. § 25-812(E) would
defeat the legislature's clear intent to narrow an untimely collateral
attack on another person's statutorily presumed paternity.
¶ 30 Mother cites the
rebuttable presumption in A.R.S. § 25- 415(B) that it is in
the child's best interest to award custody to her, as the legal parent.
That presumption, however, applies only when "a person
other than a child's legal parent is seeking custody," and not when,
as here, father is the presumed "legal parent" of the child
as the presumed biological father. See
A.R.S. § 25-415(G)(2) ("Legal parent" means "a
biological or adoptive parent whose parental rights have not been terminated").
¶ 31 Mother further
argues that the prior custody order entered by the superior court "found
that the child's biological father is unknown," and that this judicially-established
fact should preclude father's allegation of paternity.
That order, however, was entered on April 29, 1996, prior
to execution of the affidavit of acknowledgement of paternity on May 15,
1996, and was not based on a evidentiary showing but only on a stipulation
by the parties that mother "does not know with certainty the identity
of the biological father of the minor child, and that paternity of the
child has not been established by a court of law." Even
that stipulation, on its face, does not preclude father's assertion of
paternity. Furthermore, mother has not, in any of these proceedings,
even alleged the identity of another potential biological father, nor
does the prior order establish another **626
person's paternity. We therefore conclude that the prior custody
order has no preclusive effect in the current paternity and custody proceedings.
Mother also points out that, under the Indian Child Welfare
Act, 25 U.S.C. §§ 1901
a nonblood relative has no standing under federal law to
seek custody of the child. Again, because mother has failed
to meet her threshold burden to establish grounds to entitle
her to rebut the clear statutory presumption in this case
that father is the biological parent, those provisions have no
relevance at this point in the proceedings. See
25 U.S.C. § 1903(9)
(" 'parent' means any biological parent or parents of an
Indian child.... It does not include the unwed father where
paternity has not been acknowledged
or established") (emphasis added).
The child's tribe has moved to file a response as
amicus curiae in this special action. For the reasons discussed
herein, we find premature the tribe's involvement in a challenge
to the order for paternity testing, where custody of the
child is not yet an issue. Furthermore, the tribe had
not intervened in the trial court proceedings before this order
was issued. We have therefore denied that motion.
We therefore agree with father that the trial court abused
its discretion in ordering the parties to submit to genetic
testing without first holding an evidentiary hearing to require mother
to establish grounds of fraud, duress, or material mistake of
fact under Rule 60(c).
[FN13] Until mother makes an evidentiary showing of such grounds,
with an opportunity for father to rebut it, father's presumption
of paternity prevents the mandatory testing mother seeks under A.R.S.
Father also argues that mother's challenge on Rule 60(c) grounds
of fraud, duress, or material mistake of fact is untimely
because not brought within six months. Because we find no
indication in the record that this argument was made in
the trial court, we do not address it for the
first time in this special action, without prejudice to father's
right to make this argument on remand.
For the foregoing reasons, we vacate the order requiring the
parties to submit to paternity testing.
[FN14] This matter is remanded for an evidentiary hearing in
which mother must establish grounds to entitle her to relief
under Rule 60(c), in accordance with A.R.S. § 25-812(E),
before paternity testing may be required.
We note that the trial court ordered the parties to
submit to testing by September 2, 1998. No request for
a stay of that order was filed in this court,
and we cannot tell from the limited record before us
whether the trial court stayed the order during the pendency
of this special action.
the event that the testing has already been performed, we
direct the trial court to seal the results. If mother
establishes grounds for relief under Rule 60(c), based on fraud,
duress, or material mistake of fact, pursuant to A.R.S. § 25-812(E),
the trial court may, in its discretion, order the results
unsealed to prevent unnecessary duplicative testing at further expense to
the parties. See
186 Ariz. at 8 n. 6, 918 P.2d at 210
n. 6. If, however, mother is unable to meet her
evidentiary burden, the trial court is directed to keep the
results sealed and deem them inadmissible in the custody proceeding.
Jurisdiction accepted; relief granted.
PATTERSON and EHRLICH, JJ., concur.
192 Ariz. 475, 967 P.2d 616, 281 Ariz. Adv. Rep.