If Dad Seeks More Time With the Child, Can Mom Dispute His Paternity

Ok I am asking this for my brother in TN.
He is on the birth certificate because he thought he was the father. But I pushed him into a DNA test which revealed he wasn't.
(I feel like a heel- i love my nephew.. and he looks JUST like my brother,,,, we would never have known)

Five years have almost passed. She has never pursued child support and oddly the state hasn't either- even though she recieves plenty of aid.
My brother gets the child every weekend, And some weekdays too.
We all love my nephew and live in fear of having my brother's rights removed.
I read what was posted- and went to the site and read the full document but it contradicted itself.
It said that after 60 days- only fraud can remove paternity in TN
but it also said that the 5 year statue of limitations wouldn't bar a petition from being brought.

Does that mean it can be brought after the 5 years?
By the bio dad ?(if she could convince him to open himself up to the state garnishing his wages)

The bio dad is a worthless drug addict. She HAS dragged the child to meet him once, but she did NOT tell him who he was. He thinks my brother is his father. That child is beloved by my family and if we knew we were safe with the birth certificate we might even ask for more custody.
Sorry for the epic novel- and ty anyone who can help

"We"? "We" aren't getting anything. Your brother is the child's legal father, and unless biological Dad (and please don't start on how worthless he is - Mom thought he was decent enough, and she also picked your brother, remember?) challenges paternity nothing is going to change. What makes him think he could get more custody?

Yes, it means that even after 5 years, biodad still has a shot.

I didn't mean "we" there was no need to be snippy. I meant my brother--- The "we" slipped out because I am authoring this in his stead- and "we"- his family- would be pooling resources with him to fund his suit. My brother would like to file with the courts for more time with his son, or full custody even - but he was afraid if he did that there was a chance the Mother could drag the bio-dad in and get him worked up into filing to have the birth certificate changed. Thank you for the answer though, sobering as it is to know that even after five years the bio-dad could bring suit. I will take a little comfort in the part that said the decision would rest between the judge and the three lawyers- in the best interest of the child- unless someone else with actual experience in TN Law can give me a better understanding of the situation.

---and for the record --the bio-dad IS worthless. She only chose him b/c he looked like my brother and thought she could fool my brother into thinking that the resulting pregnancy was his. She had no relationship with the bio-dad then or now. The man has never ever expressed interest in the child or offered any support- and only met him the one time. That makes him a worthless father to me... sorry if i offended you somehow.

She only chose him because he looked like your brother?

You're surely not buying that, are you?!

Tennessee statutes provide,

Quote:

---

Quoting Tennessee Code, Sec. 24-7-113(e)

---

(1) If the voluntary acknowledgment has not been rescinded pursuant to subsection (c), the acknowledgment may only be challenged on the basis of fraud, whether extrinsic or intrinsic, duress, or material mistake of fact.


(2) The challenger must institute the proceeding upon notice to the other signatory and other necessary parties including the Title IV-D agency within five (5) years of the execution of the acknowledgment, and if the court finds based upon the evidence presented at the hearing 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. Such action shall not be barred by the five-year statute of limitations where fraud in the procurement of the acknowledgment by the mother of the child is alleged and where the requested relief will not affect the interests of the child, the state, or any Title IV-D agency. Nothing herein shall preclude the challenger from presenting any other form of evidence as a substitute for the parentage tests if it is not possible to conduct such tests.


(3) The test results certified under oath by an authorized representative of an accredited laboratory shall be filed with the court and shall be admissible on the issue of paternity pursuant to § 24-7-112(b). If the acknowledged father is found to be excluded by the tests, an action seeking support shall be dismissed or the acknowledgment of paternity shall be rescinded, as appropriate. If the test results show a statistical probability of ninety-five percent (95%) or greater, a rebuttable presumption of paternity shall be established and the issue of paternity shall be tried before the court without a jury. If the test results show a probability of paternity of ninety-nine percent (99%) or greater, the acknowledgment of paternity will become conclusive and no further action shall be necessary to establish paternity unless a motion asserting the defenses of § 24-7-112(b)(2)(C) is successfully brought.


(4) The burden of proof in any such proceeding shall be upon the challenger.


(5) During the pendency of the hearing under this subsection and any appeal from such hearing, the legal responsibilities of the signatory, including any child support obligations, may not be suspended, except for good cause shown.

---

It would be difficult enough for mom to claim that this was an act of unilateral fraud on her part before the five year mark. I know of no jurisdiction that will grant somebody relief based upon their own claimed act of fraud, over the objection of the party they're claiming to have defrauded. The objection up to the five year mark would presumably be one of material mistake. The language of the statute, particularly that relating to relief after the five year mark, seems to me to allow a father to raise a claim that he was defrauded by the birth mother, but not one where the birth mother claims she defrauded the father and thus his parental status should be terminated. See, e.g., In re ANF, in which a Tennessee court describes the claim of fraud in paternity cases and the elements of a claim of fraud.

Note also that unless your brother has shown the poor judgment to be discussing the DNA test with the mother, she doesn't know about it. The statute does not say, "Bring DNA to court to show fraud," it says (in simple terms) "Bring a petition a petition that makes a claim of fraud and, if the court finds it legally sufficient, only then will DNA tests be ordered." That's not to say that the DNA tests you have might not help your brother build a case, but if mom doesn't have them and doesn't know about them what's she going to say? Are we again back to, "I lied, so I should get relief," the same issue discussed above?

A tricky side issue would be, what if the person you believe to be the biological father becomes involved and tries to establish his paternity. That's a different set of statutes and issues. It doesn't sound likely, but it's worth considering.

You don't make clear whether there is an existing custody and support order in effect. If there is, it may be that the state isn't coming after your brother because the support agency is collecting his duly paid child support and applying it to mom's benefits. If there is, it also becomes even more problematic for mom to dispute his paternity, as she would have not only the AOP but also the stipulation in court that your brother is the child's father to overcome.

I think your brother should have a sit down meeting with a family lawyer to discuss the case in full, and to form a strategy. Frankly, if mom's as bad as you say I'm not sure why your brother is merely thinking about getting "more" custody, as opposed to trying to become the primary custodian.

Quote:

---

Quoting Dogmatique

---

She only chose him because he looked like your brother?

You're surely not buying that, are you?!

---

Well- yea. I hated to bring all the sordid details but- yea- i DO buy it.
She & my brother broke up. She wanted him back. She found a guy she knew but never dated-that looked JUST like him- She screwed him. She got knocked up.
She came BACK to my brother claiming to be pregnant with his child. They stayed together through the birth- until the DNA test.
She never dated the dad. The bio-dad has only seen the child once in over 5 years.
So- yea. I am buying it. I will give her an A+ for creativity.

- - - Updated - - -

Mom is even worse than i say. She married a convicted Sex Offender. The family (and his teacher - who brought it to OUR attention ) had fears even in that arena.

See, that was my original question- what MR Knowitall posted- our fear was that the bio-dad would bring suit to change the birth certificate when - and if my brother ever made waves to file for more (or in actuality) custody - since there has never BEEN a custody decision for the child nor has child support ever been stipulated.
The state gives her benefits as if the father has never participated- but our family pays for almost all the child's needs off books- including private school.
And oh of course yes, My brother had the awful judgement to date her- of course he had the awful judgement to tell her immediately about the DNA test (We begged him not to- but we also begged him not to date her, so ...)


I was afraid that he would have to go sit down with a lawyer when i first read the statute Mr Knowitall just quoted months ago- I didn't get why it was so specific about the 5 year fraud limit- if it is just going to turn around and cancel it out ;)
-- thanks so much for the in-depth help-in the interim- I really appreciate it. My father said yesterday they are making an appointment with a family lawyer- as soon as possible ;)

I couldn't be more embarrassed.. the whole thing sounds like an Episode of the Jerry Springer Show.

Why would you be embarrassed over the events that lead to the conception of you beloved nephew? If it hadn't been for those events, you wouldn't have the nephew you loved so much.

You've disparaged both mom and bio dad. You should be embarrassed about that. If it hadn't been for them, you wouldn't have your nephew.

I am embarrassed by the behavior of everyone involved before - but mainly after his birth.
Don't forget my brother- I'm pretty sure i was snarky about him as well :)
Honestly, if you knew the characters involved I have the sneaking suspicion you would find it hard to describe the situation
without being as colorful about the parents AND the bio-dad. I held back, a lot!
Thank you again for your kind help.And if it's allowed - can anyone tell me who the best ( and second best) Paternity Lawyers are in TN?

Your brother is still unable to operate a computer? Huh.

No, we don't provide referrals here.

You're welcome.