Is There a Statute of Limitations to Disestablish Paternity in Arizona

**hatchling** · 07-30-2009, 11:30 PM

My question involves paternity law for the State of: AZ

Hello... Please bare with me because I really, really need some advice... I will try to make this as concise as possible, but it's a bit complicated. I am in need of some serious guidance on the following scenario:

Current situation-
My ex-husband and I have an 8 year old son (born in 2001) and we've been divorced for 5+ years now (divorced in 2004). Approx. 7 weeks ago, I picked my son up from summer school on a Monday afternoon which followed a weekend that he spent at his dad's. When I arrived, the teacher said I needed to have a talk with my son he was upset that day and was talking to the other students about some very personal family matters. When we got into the car, he started crying and said, "Daddy said you're a cheater and that I'm not his real kid". I couldn't believe my ears! I couldn’t believe that his dad would say that, in the manner that he did, whether it was true or not. It's just so cruel and irresponsible. I was trying to appropriately respond to my heartbroken little boy but without having any prior knowledge of this accusation, it was difficult. Later that evening, I was checking my email and there was something in my inbox from my ex-husband. The email said, "I provided full disclosure to the kid" and there was a DNA test result stating there is a 0% chance my ex-husband is the biological father of my child.

Rewind 9 years-
I got married in 1997 and my husband turned out to be both emotionally and mentally abusive so our relationship was a rollercoaster from the start. My actions, however, are unacceptable and I am in no way saying this excuses what I did. In 2000, I had a one night stand with someone I knew through a friend. A month or two after, I found out I was pregnant. I didn't give it much thought because again, it was only that one time, and I hadn't had any contact with him since then. It was kind of like... out of sight out of mind. He was not married, but he lived with a lady and they had two children together. In 2003, he surfaced after his girlfriend took their two children and fled to Texas to get away from him. He wanted to start a relationship with me, but I wasn't willing. When he didn't get his way, he called my husband and told him that he could be the father of my son. My husband confronted me about it and I told him the truth. I told him I was with the guy once so it was possible, but not likely. He never questioned me about it again and we divorced in 2004.

Back to Current-
A couple of days ago, I received a document from his attorney called, "Petition to Determine Paternity, Amend Birth Certificate, and End Child Support Order". The Petition states that the Respondent Mother (I) perpetrated a fraud on the Petitioner. The DNA test results are also attached. I can't afford an attorney, and I'm not sure what type of action i should take.

The have the following questions:
1. Do I need to file a response with the courts or will a judge simply make a determination without my input?
~The Petition makes no mention of it and there is no specific form for this on the Superior Court website.

2. Is there a statute of limitations to disestablish paternity?
~I would understand if he challenged the paternity 6 years ago when he was told of the possibility, but to do it now seems heartless.

3. Is it acceptable to the courts for a Petition of this nature to have the results of a DNA test attached to it?
~ I read something that said the DNA test needs to be ordered by the judge and that there are decisions that need to be made by the judicial system prior to having knowledge of the test results.

4. If a judge allowed my ex-husband to disestablish paternity, would that terminate any and all rights for visitation with the child?

Points of Concern/Significance:
~My ex-husband has not adhered to the court ordered schedule for parenting time and he has not paid child support since he told my son of this 7 weeks ago. He is supposed to have him every other weekend and every Wednesday night. He has showed up at my son’s school twice to pick him up, randomly and without informing me first, and has shown up at two of my son’s baseball games. Every time this happens, it leaves my son very upset and confused. He always wants to know when he’ll see him again.

~I had the child support modified in February and his obligation doubled. He wasn't very happy about that even though he’s quite wealthy. I'm quite sure this is at least part of the reason he pursued this paternity issue.

~On this Petition, the attorney specifically states that the Petition be assigned to a particular judge. Is that common practice? It seems strange to me.

Thanks for reading this in its entirety, even though it probably sounds like an episode of Jerry Springer! I really love my boy and want what's in his best interest. His emotional well being will always be my #1 priority.

**jacksmom** · 07-31-2009, 05:31 PM

Your ex did nothing but hurt your child, on purpose. A judge will order another DNA test, your ex will have to pay for it since home DNA tests are not admissible. I can only hope and pray it comes up negative. You should get an attorney and set up a payment schedule. The judge will rule on the best interest of the child. You may have to put up with the jerk since the child is 8 and paternity has already been determined legally. I really don't think you want this man near your child, do you? Show up for court with or without an attorney.

**hatchling** · 08-03-2009, 01:38 PM

Jacksmom,
Thanks for your response... As clarification, do you know if there's a document that I need to file in response to the petition? You mention that I should show up for court with or without an attorney but I haven't been notified of any court date on the matter. Should I expect something in the mail? Thanks-

**aaron** · 08-03-2009, 01:58 PM

You should get a lawyer. See if you qualify for legal aid, or if your local legal aid office can suggest somebody who will represent you at a discounted rate.

You will want to file an answer to the petition. That's something a lawyer can help you draft; drafting court pleadings is quite a bit more than we can do here.

Do you have any witnesses or other evidence that you told your ex- about your infidelity during the marriage, and that he was previously aware of the possibility of nonpaternity? If you know, what is he claiming as the basis for his sudden suspicions about his paternity, this many years later?

**jacksmom** · 08-03-2009, 05:32 PM

In my state, you don't have to write a response, just be present for the hearing. I would try to get some legal assistance. You have no hearing date? That puzzles me. Asking for a certain judge may or may not be granted. If you had your support modified in Feb., why did he wait till now to bring a suit? Something should arrive in the mail with a hearing date. My guess is that they want you to do this without going to court and that's that. Usually a summons appears with all info on it. Please get in touch with an attorney soon. Most will set up a payment plan to fit your budget. Again, if this DNA test was taken without your knowledge, another will be ordered by the judge. You can staple not my kid to anything, but unless chain of custody is used (picture i.d.), the judge will throw it out. How's your son doing? Better I hope. Keep us posted.

**hatchling** · 08-05-2009, 04:09 PM

Ugh! I responded to both of you... aaron and jacksmom and when I pushed send, I got the dreaded, "cannot display page" which means my internet connection went away at some point. Needless to say, I lost my entire response! That stinks!

One thing really quick... After 2 months of being virtually MIA, my ex has surfaced and told my son he wants to start back on the normal schedule again.

So let's recap what his goal is here...

He wants his name removed from the birth certificate.
He wants to terminate the existing child support order.

BUT
He wants to be involved in my son's life on a regular basis (as his father, on the surface)

Huh? Does this make any sense whatsoever? Please tell me there is no judge on the planet that would grant such a request?

**jacksmom** · 08-05-2009, 04:48 PM

That's called having your cake and eating it too. No such luck. He will have to pay support or go away. You can't have it both ways. Let's say he gets the BC corrected and support stopped. He "loves" the boy, but does not want his last name for your son and pay no money. Does that make sense? Hell no! What is your son going to think when his last name changes? When your son is older, he may think...gee, this guy loved me so much that he didn't want me to have his last name. You need to tell this guy he's either all in or all out. You either love the child or you don't.

**hatchling** · 08-12-2009, 11:19 PM

In response to Aaron's question- The only witness who knows my ex was told of the possibility he wasn't the father 6 years ago, is the guy who actually told him (the other potential father). Do you think his testimony is important? I don't know why he is claiming to have suspicions about his paternity now, when our son is 8. My gut is that his "live in" girlfriend pushed the issue. I think the monthly child support puts too much of a dent in her shopping money.

Jacksmom- I was formally served this evening with an "Order to Appear" re: Return Hearing on the Petition (whatever that means). I understand the order to appear part, I just don't understand what is meant by "return hearing". The document also states that I can file a response in accordance with the "AZ Rules of Family Law Procedure". There is no specific template or form for this type of response apparently, so if I choose to file a response, it has to be done so in a manner that follows certain family laws and guidelines in AZ. I better start researching this stuff!