As a guardian ad litem (GAL) and domestic relations mediator in New
Mexico, I occasionally meet men confronting the question of whether they can or should seek belated DNA testing to either challenge, or avoid a child support order. As a mediator I can only provide legal information (if competent to do so), not legal advice, so I cannot answer that question directly. However, I often encourage the parent to think of this as not just a legal question, but a personal and moral one
as well. For instance, I suggest he consider what impact such testing could have on him and the child, particularly if there is an existing relationship.
What I usually don't say is that being on the birth certificate; prior admissions of paternity, such as in a Custody and/or Divorce agreement; or having held yourself out as the parent, can result in a presumption of paternity in New Mexico that is difficult to overcome. The New Mexico Court of Appeals, however, has recently issued an interesting decision on this question.
In Human Services Dept. v. Rawls, 2012-NMCA-052 (cert. not applied for), Rawls had a default judgment of paternity entered against him, and thereafter he stipulated to a report and decision concerning child support arrears that adjudicated him the Parent. He stipulated to this report and decision for the purpose of getting his drivers license reinstated. However, he later confirmed by DNA testing that he was not the child's father and sought to have the earlier default judgment and stipulation set aside by Rule 1-060(B)(6).
The Court held "the determination that Rawls is not the child's biological father after his admission early on that he was Child's father is an extraordinary circumstance under Rule 1-060(B)(6). Accordingly, the Court set aside the default judgment and the stipulated order, and "related [him' form his obligation to pay prospective child support." The Court further held that "Rawls should not be burdened with the obligation to pay any accrued child support."
It is difficult to know from reading the decision, however, whether this holding would apply in any situation in which paternity is disproved by DNA. The Court emphasized several times that "[b]asic notions of fairness and justice strongly suggest that Rawls should not be compelled to pay ... child support," but qualified this was so where "he is unerringly determined not to be the biological father ... and found to have had no personal relationsip with the child." The Court also stressed its decision here "was supported by Child's mother's apparent misrepresentation to HSD that Rawls was the father and her later admission in court that another named mas was the biological father." Additionally, it emphasized although the mother had been deported the Child was being cared for by the maternal grandmother.
Thus, it would be unwise to rush forward assuming that any disproof of paternity by DNA could be used to unwind prior adjudications of paternity and child support. It appears the Court will instead make a case-by-case analysis, looking in part to whether there is an existing relationship and whether there is other support out there for the child.
In Human Services Dept. v. Rawls, 2012-NMCA-052 (cert. not applied for), Rawls had a default judgment of paternity entered against him, and thereafter he stipulated to a report and decision concerning child support arrears that adjudicated him the Parent. He stipulated to this report and decision for the purpose of getting his drivers license reinstated. However, he later confirmed by DNA testing that he was not the child's father and sought to have the earlier default judgment and stipulation set aside by Rule 1-060(B)(6).
The Court held "the determination that Rawls is not the child's biological father after his admission early on that he was Child's father is an extraordinary circumstance under Rule 1-060(B)(6). Accordingly, the Court set aside the default judgment and the stipulated order, and "related [him' form his obligation to pay prospective child support." The Court further held that "Rawls should not be burdened with the obligation to pay any accrued child support."
It is difficult to know from reading the decision, however, whether this holding would apply in any situation in which paternity is disproved by DNA. The Court emphasized several times that "[b]asic notions of fairness and justice strongly suggest that Rawls should not be compelled to pay ... child support," but qualified this was so where "he is unerringly determined not to be the biological father ... and found to have had no personal relationsip with the child." The Court also stressed its decision here "was supported by Child's mother's apparent misrepresentation to HSD that Rawls was the father and her later admission in court that another named mas was the biological father." Additionally, it emphasized although the mother had been deported the Child was being cared for by the maternal grandmother.
Thus, it would be unwise to rush forward assuming that any disproof of paternity by DNA could be used to unwind prior adjudications of paternity and child support. It appears the Court will instead make a case-by-case analysis, looking in part to whether there is an existing relationship and whether there is other support out there for the child.
If you are
interested in child-related mediation, advisory consultation, or GAL (guardian ad litem) services,
please contact Pilar Vaile, P.C. at
(505) 247-0802, or info@pilarvailepc.com.
