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  • 06-23-2013, 05:59 PM
    wv123
    Can I Dismiss Paternity Suit Do to Insufficient Affidavit
    My question involves paternity law for the State of: Wisconsin
    In a paternity suit in Wisconsin, state attorney + unmarried mother are suing to establish paternity under s 49.22 welfare. There was no mother's affidavit when the summons was sent to me. There was only the state's affidavit (apparently based on an unsigned paternity interview) and finally she did her affidavit a month after I got the summons, and the mother's affidavit was pretty much the opposite of the paternity interview and the state's first affidavit. Would the lack of an affidavit at the time the summons was issued, and writing a new mother's affidavit with very different story, be grounds for dismissing the suit? The state's affidavit of course might also be considered falsely sworn, although they only say "on information and belief", so maybe it wouldn't be false swearing due to hearsay, they will just say the mother changed her story and blow it off. The state's affidavit was missing some other things also (it did not specify there was no other possible father, etc) but of course the big issue is they had no probable cause, it seems that WI law requires a mother's sworn affidavit in order to have probable cause to issue a paternity summons.
    So the question is, is the procedural issue (no probable cause) enough to dismiss the case? It is possible that despite the changes in her story, they still have legal basis, maybe even better legal basis, now than before, but it seems they thought they had legal basis before also.
    Thanks!
  • 06-23-2013, 06:06 PM
    Disagreeable
    Re: Can I Dismiss Paternity Suit Do to Insufficient Affidavit
    Lets approach this logically. You are going to be taking the paternity test now or later. What is your goal?
  • 06-23-2013, 06:08 PM
    Dogmatique
    Re: Can I Dismiss Paternity Suit Do to Insufficient Affidavit
    Serious question.

    Why bother? If it's dismissed, they'll simply refile. This won't go away.

    - - - Updated - - -

    Ah. Post hx, folks. :cool:
  • 06-23-2013, 06:12 PM
    Disagreeable
    Re: Can I Dismiss Paternity Suit Do to Insufficient Affidavit
    To facilitate resolving your situation, Google "vaseline coupon".



    Quote:

    Quoting Dogmatique
    View Post
    Serious question.

    Why bother? If it's dismissed, they'll simply refile. This won't go away.

    - - - Updated - - -

    Ah. Post hx, folks. :cool:

  • 06-23-2013, 06:21 PM
    wv123
    Re: Can I Dismiss Paternity Suit Do to Insufficient Affidavit
    It can be dismissed with prejudice. Or they might decide not to refile even if they can. If it does go to trial, it is a jury trial, and they need to prove beyond a doubt, so getting it dismissed because their witness lied makes them look doubtful. I don't see how getting it dismissed can hurt me? It also delays them, and who knows, maybe I find another problem the next time they file.
  • 06-23-2013, 06:23 PM
    Dogmatique
    Re: Can I Dismiss Paternity Suit Do to Insufficient Affidavit
    It won't be dismissed with prejudice.

    Forget that.

    And you're completely not getting how family court works. Seriously.
  • 06-23-2013, 06:34 PM
    wv123
    Re: Can I Dismiss Paternity Suit Do to Insufficient Affidavit
    Your opinion is noted. Maybe someone else who is interested in answering my question will respond.
  • 06-23-2013, 06:38 PM
    Dogmatique
    Re: Can I Dismiss Paternity Suit Do to Insufficient Affidavit
    (hint: "beyond a reasonable doubt" doesn't exist in family court)

    Seriously.
  • 06-23-2013, 06:56 PM
    wv123
    Re: Can I Dismiss Paternity Suit Do to Insufficient Affidavit
    Your opinion (which is wrong) is noted. In Wisconsin if you want a trial for a paternity suit, then it must be proven beyond a reasonable doubt, and you have the right to a jury. But that wasn't the question. So just answer the question that was asked, or shut up.
  • 06-23-2013, 07:06 PM
    Dogmatique
    Re: Can I Dismiss Paternity Suit Do to Insufficient Affidavit
    Quote:

    Quoting wv123
    View Post
    Your opinion (which is wrong) is noted. In Wisconsin if you want a trial for a paternity suit, then it must be proven beyond a reasonable doubt, and you have the right to a jury. But that wasn't the question. So just answer the question that was asked, or shut up.



    Start saving for child support, my friend.

    :cool:
  • 06-23-2013, 07:33 PM
    Disagreeable
    Re: Can I Dismiss Paternity Suit Do to Insufficient Affidavit
    Quote:

    Quoting wv123
    View Post
    Your opinion is noted. Maybe someone else who is interested in answering my question will respond.

    She is correct. They will simply refile. Contrary to your misunderstanding of the system, they do this all the time.

    - - - Updated - - -

    You can certainly claim they do not have probable cause. The court granted the filing and will rule on any motion you bring. WI law provides the burden of proof rests on you.
  • 06-23-2013, 07:40 PM
    jk
    Re: Can I Dismiss Paternity Suit Do to Insufficient Affidavit
    Quote:

    Quoting wv123
    View Post
    In Wisconsin if you want a trial for a paternity suit, then it must be proven beyond a reasonable doubt, and you have the right to a jury..


    really? That would be interesting to read about. Got anything official to link?



    There is nothing in a paternity suit for a jury to determine. That is why it sounds so odd. You have presumed paternity which arises from being married to the mother in the time frame listed in the law and you have a dna test. Not seeing what a jury would have to do with any of that,.


    and if you have a link to anything that supports your claim that the state cannot initiate a paternity action on their own, that would be appreciated as well.
  • 06-23-2013, 07:45 PM
    Dogmatique
    Re: Can I Dismiss Paternity Suit Do to Insufficient Affidavit
    The actual statute specifically allows the state to initiate a paternity action ;)

    However, our poster doesn't like me. I'm a troll guy who gives everyone bad news, evidently.
  • 06-23-2013, 08:52 PM
    wv123
    Re: Can I Dismiss Paternity Suit Do to Insufficient Affidavit
    It has nothing to do with like or dislike, it has to do with your inability to answer the question (whether dismissal is possible based on an insufficient affidavit) that was posed. If you aren't a troll who gives everyone bad news, prove it, by answering the question.
    I guess burden of proof is not "beyond a reasonable doubt" it is "clear and satisfactory preponderance of the evidence".
    (http://libcd.law.wisc.edu/~wilc/lm/lm_2000_15.pdf)
    "Generally, the existence of
    paternity must be shown by “clear and
    satisfactory preponderance of the evidence.” [s.
    767.47 (8), Stats.] Although the alleged father
    has a right to a trial by jury, a jury trial is held
    only if the alleged father verbally requests a jury
    trial either at the initial appearance or pretrial
    hearing or requests a jury trial in writing prior to
    the pretrial hearing. A jury for a paternity trial
    consists of six persons, five of whom must agree
    on a verdict before the verdict is valid."
  • 06-23-2013, 08:59 PM
    Dogmatique
    Re: Can I Dismiss Paternity Suit Do to Insufficient Affidavit
    I need prove nothing to you, my friend. If I wasn't in good standing here, I wouldn't BE here. Speaks for itself, really. Elementary, my dear Watson.

    Now. A genuine question. When the court orders that you take a paternity test, what are you going to do?

    And yes, there's a reason why I'm asking.
  • 06-23-2013, 09:02 PM
    wv123
    Re: Can I Dismiss Paternity Suit Do to Insufficient Affidavit
    Quote:

    Quoting jk
    View Post
    ...You have presumed paternity which arises from being married to the mother in the time frame listed in the law and you have a dna test. Not seeing what a jury would have to do with any of that... your claim that the state cannot initiate a paternity action on their own, that would be appreciated as well.

    I didn't say the state can't initiate an action. And not all paternity involves marriage. The state has a hearing, a commissioner makes a recommendation, if someone doesn't like the recommendation, they can go to trial. A jury might offer benefits. The point though is to dismiss the case without going to trial.
  • 06-23-2013, 09:06 PM
    Dogmatique
    Re: Can I Dismiss Paternity Suit Do to Insufficient Affidavit
    And once again, even IF you somehow manage to get it dismissed - the State isn't going to drop it. They're just not.

    They'll simply refile. There is absolutely no chance of getting this dismissed with prejudice. And I rarely, RARELY speak in absolutes.
  • 06-23-2013, 09:10 PM
    wv123
    Re: Can I Dismiss Paternity Suit Do to Insufficient Affidavit
    They can't order a paternity test unless they have a mother's sufficient affidavit alleging sex took place is my understanding. I do not believe they have a sufficient affidavit. They also can't order a dna test until the initial hearing. It seems better to motion to dismiss before the hearing. Then if they file again, I can try to dismiss again. If it gets to the hearing, the commissioner might just say take the test or go to trial. The state said if I get it dismissed, they may not file again, it all depends on why it is dismissed. If they order the test, of course I must take it or be held in contempt. I can still go to trial, even if the test is positive, it is not an adjudication of paternity. But I prefer to avoid trial if I can.
    Quote:

    Quoting Dogmatique
    View Post
    I need prove nothing to you, my friend. If I wasn't in good standing here, I wouldn't BE here. Speaks for itself, really. Elementary, my dear Watson.

    Now. A genuine question. When the court orders that you take a paternity test, what are you going to do?

    And yes, there's a reason why I'm asking.

  • 06-23-2013, 09:16 PM
    Dogmatique
    Re: Can I Dismiss Paternity Suit Do to Insufficient Affidavit
    Okay dokey then.

    Like I said earlier. Start saving that hard-earned (?) money for child support.

    You are seriously piddling into the wind here.

    - - - Updated - - -

    (Yes, you're mistaken. Believe me - we've seen SEVERAL Wisconsin Dads try this. All. Failed. Miserably)
  • 06-23-2013, 09:16 PM
    jk
    Re: Can I Dismiss Paternity Suit Do to Insufficient Affidavit
    Quote:

    Quoting wv123
    View Post
    It has nothing to do with like or dislike, it has to do with your inability to answer the question (whether dismissal is possible based on an insufficient affidavit) that was posed. If you aren't a troll who gives everyone bad news, prove it, by answering the question.
    I guess burden of proof is not "beyond a reasonable doubt" it is "clear and satisfactory preponderance of the evidence".
    (http://libcd.law.wisc.edu/~wilc/lm/lm_2000_15.pdf)
    "Generally, the existence of
    paternity must be shown by “clear and
    satisfactory preponderance of the evidence.” [s.
    767.47 (8), Stats.] Although the alleged father
    has a right to a trial by jury, a jury trial is held
    only if the alleged father verbally requests a jury
    trial either at the initial appearance or pretrial
    hearing or requests a jury trial in writing prior to
    the pretrial hearing. A jury for a paternity trial
    consists of six persons, five of whom must agree
    on a verdict before the verdict is valid."

    ah, a preponderance of the evidence. A much lesser requirement.

    I still see no purpose for a jury trial. This is not a trial per se. It is more of a hearing where evidence is reviewed and used as a basis for a finding. I would be scared of a jury trial. They could make you the father regardless of what the evidence shows where a judge is going to rule based on the factual evidence. I just don't see it; either the DNA shows you are the father or not or the rules to determine presumptive paternity have been fulfilled or not. Not anything I would want the personal opinions of a jury weighing in on.

    I cannot seem to be able to access Wisconsin statutes and admin rules so I cannot even look into it further.
    as to whom can initiate a paternity action, from your link:


    Quote:

    g. The state or an attorney designated to
    represent the county in child support and
    paternity actions if a completed application
    for legal services has been filed with the
    county child support agency or the child’s
    parent receives W-2 benefits.

    h. The state, if there is no father’s name listed
    on the child’s birth certificate.
    they can initiate proceedings against any person believed to be the father. If the mother is on welfare, it is usually a requirement she would be required to provide the state with anybody that could be the father. The state takes it from there.

    The publication speaks to an alleged father. I see nothing requiring the mother complete an affidavit naming a party prior to the state taking action.

    then, we have this:

    Quote:

    The purpose of a pretrial hearing in an action to
    establish paternity is to afford the court or FCC
    the opportunity to make an evaluation of the
    probability of determining the existence or
    nonexistence of paternity at trial. A record or
    minutes of the hearing must be kept. Each party
    may present and cross-examine witnesses,
    request genetic tests and present other evidence
    relevant to the determination of paternity. [s.
    767.46, Stats.]
    if you cannot prove you could not be the father, your case is not going to be dismissed. If there is any possibility remaining, they are not going to dismiss it. If you do not acknowledge paternity, the state can and most likely will seek an order of the court requiring you to submit to a DNA test.

    Quote:

    They can't order a paternity test unless they have a mother's sufficient affidavit alleging sex took place is my understanding.
    just where do you think they got your name from? The mother, by naming you as a possible father, has given them all the info they need to demand a DNA test. She has already admitted or claimed you had sex with her about the time she became pregnant. If she hadn't, it wouldn't be as far as it is already.
  • 06-23-2013, 09:21 PM
    wv123
    Re: Can I Dismiss Paternity Suit Do to Insufficient Affidavit
    Quote:

    Quoting Dogmatique
    View Post
    ...There is absolutely no chance of getting this dismissed with prejudice...

    The state's affidavit of course says "...on information and belief..." so hard to prove perjury, but I think there may be enough problems with the state's affidavit that they might decide to dismiss.

    - - - Updated - - -

    Yeah, precisely why you're a troll. You're never able to answer a direct question, only give vague negative generalizations.
    Quote:

    Quoting Dogmatique
    View Post
    Okay dokey then.

    Like I said earlier. Start saving that hard-earned (?) money for child support.

    You are seriously piddling into the wind here.

    - - - Updated - - -

    (Yes, you're mistaken. Believe me - we've seen SEVERAL Wisconsin Dads try this. All. Failed. Miserably)

  • 06-23-2013, 09:23 PM
    Dogmatique
    Re: Can I Dismiss Paternity Suit Do to Insufficient Affidavit
    Not my child support problem, dude.

    Yours.

    I believe you're mistaking "Troll" for "someone is telling me something I don't want to hear".

    And that's fine. We get it. Oh, we get it.
  • 06-23-2013, 09:23 PM
    wv123
    Re: Can I Dismiss Paternity Suit Do to Insufficient Affidavit
    And, as mentioned before, how does getting a case dismissed leave you in a worse position than you were in before? Dismissal requires them to refile, gives you another chance, and not really that costly is it to motion to dismiss?
  • 06-23-2013, 09:25 PM
    jk
    Re: Can I Dismiss Paternity Suit Do to Insufficient Affidavit
    Quote:

    wv123;720420]The state's affidavit of course says "...on information and belief..." so hard to prove perjury, but I think there may be enough problems with the state's affidavit that they might decide to dismiss.
    Nope. All they need is an allegation that you could be the father. The mother already provided that. That is how it got this far.

    the only way they are going to dismiss this is if you prove you were someplace the entire time around the time the mother was impregnated where it would have been impossible for you to impregnate her.
  • 06-23-2013, 09:26 PM
    wv123
    Re: Can I Dismiss Paternity Suit Do to Insufficient Affidavit
    The question wasn't if dismissal was ultimately futile or not, it was if it is possible or not. How do you know the relative importance of delaying a court action is to me? Try to stay on point for once and answer the question that is asked, not provide some random answer to a different question.
  • 06-23-2013, 09:27 PM
    Dogmatique
    Re: Can I Dismiss Paternity Suit Do to Insufficient Affidavit
    I'm not a gambling gal. But when this guy is found to be the father, what's the bet he's going to come back telling us how unfit Mom is and asking how can he get custody?

    (I mean not that it'd have anything to do with child support...right?)
  • 06-23-2013, 09:28 PM
    wv123
    Re: Can I Dismiss Paternity Suit Do to Insufficient Affidavit
    They need a sworn affidavit that the allegation is true is my reading of the law. Not just an allegation. They didn't have the affidavit. which all goes back to my original question.
    Quote:

    Quoting jk
    View Post
    Nope. All they need is an allegation that you could be the father. The mother already provided that. That is how it got this far.

    the only way they are going to dismiss this is if you prove you were someplace the entire time around the time the mother was impregnated where it would have been impossible for you to impregnate her.

  • 06-23-2013, 09:29 PM
    Dogmatique
    Re: Can I Dismiss Paternity Suit Do to Insufficient Affidavit
    Quote:

    Quoting wv123
    View Post
    The question wasn't if dismissal was ultimately futile or not, it was if it is possible or not. How do you know the relative importance of delaying a court action is to me? Try to stay on point for once and answer the question that is asked, not provide some random answer to a different question.


    Because Mom is (or was) obviously on some sort of state aid. And that means the state will come after the father.

    You can delay all you like - all it means is that the interest on what's owed will be adding up.

    Your teeny tantrum isn't going to help your cause. If you don't think you're the father, get the thing over with. If you think you are - same.

    This isn't brain surgery, dude.
  • 06-23-2013, 09:37 PM
    wv123
    Re: Can I Dismiss Paternity Suit Do to Insufficient Affidavit
    That is what a troll is, someone who babbles on about unrelated matters to get a rise out of people.
    Quote:

    Quoting Dogmatique
    View Post
    I'm not a gambling gal. But when this guy is found to be the father, what's the bet he's going to come back telling us how unfit Mom is and asking how can he get custody?

    (I mean not that it'd have anything to do with child support...right?)

    - - - Updated - - -

    Your opinion (it won't work, save your money for child support, etc) is noted. Thanks. Maybe you can help someone else now, and someone else will help me.
  • 06-23-2013, 09:53 PM
    jk
    Re: Can I Dismiss Paternity Suit Do to Insufficient Affidavit
    Quote:

    Quoting wv123
    View Post
    They need a sworn affidavit that the allegation is true is my reading of the law. Not just an allegation. They didn't have the affidavit. which all goes back to my original question.

    do you even know what an affidavit is? It is nothing more than a sworn statement. In that statement, if the mother alleges you could be the father, that is adequate to chase you as they are.


    but to the most basic question, from the title of the thread:


    Quote:

    Can I Dismiss Paternity Suit Do to Insufficient Affidavit

    No. A judge is the only entity that can dismiss the suit. You can seek a dismissal by filing whatever you wish but it is the judges discretion to dismiss it or not.

    answer me this:


    if the mother did not allege you are or could be the father, just why has the state filed suit to determine paternity with you as the defendant? Seriously, you are putting way more into this than what there is. The state has been doing this a long time. If you think their suit or supporting evidence is defective and that is a basis to dismiss, then go for it. I am confident the states filings are adequate or, if they are defective, the court will allow them to amend them without ever dismissing the suit.
  • 06-23-2013, 10:07 PM
    Mr. Knowitall
    Re: Can I Dismiss Paternity Suit Do to Insufficient Affidavit
    Quote:

    Quoting wv123
    View Post
    There was no mother's affidavit when the summons was sent to me. There was only the state's affidavit (apparently based on an unsigned paternity interview) and finally she did her affidavit a month after I got the summons, and the mother's affidavit was pretty much the opposite of the paternity interview and the state's first affidavit.

    So not just one affidavit, but two?

    I expect that this is the statute that caught your attention:
    Quote:

    Quoting Wisconsin Statutes, Sec. 49.225.  Ordering genetic tests.
    (1) In this section, "genetic test" has the meaning given in s. 767.001 (1m).

    (2) 

    (a) A county child support agency under s. 59.53 (5) may require, by subpoena in substantially the form authorized under s. 885.02 or by other means, a child, the child's mother and a male alleged, or alleging himself, to be the child's father to submit to genetic tests if there is probable cause to believe that the male had sexual intercourse with the child's mother during a possible time of the child's conception. Probable cause of sexual intercourse during a possible time of conception may be established by a sufficient affidavit of the child's mother or the male alleged, or alleging himself, to be the child's father.

    (b) If there is only one male alleged, or alleging himself, to be the father and one or more persons required to submit to genetic tests under par. (a) fail to appear for the scheduled tests, the county child support agency under s. 59.53 (5) may bring an action under s. 767.80 for determining the paternity of the child.

    (3) The fees and costs for genetic tests performed on any person required to submit to the tests under sub.(2) (a) shall be paid for by the county except as follows:

    (a) The county may seek reimbursement from either the mother or male alleged, or alleging himself, to be the father, or from both, if the test results show that the male is not excluded as the father and that the statistical probability of the male's parentage is 99.0% or higher.

    (b) If 2 or more identical series of genetic tests are performed upon the same person, the county child support agency under s. 59.53 (5) shall require the person requesting the 2nd or subsequent series of tests to pay for the tests in advance. If the person requesting the 2nd or subsequent series of tests is indigent, the county shall pay for the tests and may seek reimbursement from the person.


    There is no requirement that the affidavit be served on you at the time you are served with the summons and complaint. Further, the statute says "may be established", not "must be established" - the legislature is simply indicating that if such an affidavit is provided it is sufficient to establish probable cause. Probable cause can be established by other means, not described in the statute, with the evidence reviewed on a case-by-case basis.
    Quote:

    Quoting wv123
    Would the lack of an affidavit at the time the summons was issued, and writing a new mother's affidavit with very different story, be grounds for dismissing the suit?

    You are free to argue that the mother's statute is not sufficient to establish probable cause, and that the court is not obligated to find probable cause based on the statutory language. Then you are free to argue that the evidence on the whole does not support a finding of probable cause. In the exceptionally unlikely event that the court agrees with you, odds are the court will offer the state the opportunity to supplement its case. But if the only play in your playbook is the "Hail Mary", there you go.
    Quote:

    Quoting wv123
    The state's affidavit of course might also be considered falsely sworn, although they only say "on information and belief", so maybe it wouldn't be false swearing due to hearsay, they will just say the mother changed her story and blow it off.

    Mom is either identifying you as a probable father or she is not. I can't read the affidavit from here. We can figure out the rest, though, from the fact that you're terrified of taking a DNA test.
  • 06-23-2013, 10:54 PM
    wv123
    Re: Can I Dismiss Paternity Suit Do to Insufficient Affidavit
    Quote:

    Quoting Mr. Knowitall
    View Post
    So not just one affidavit, but two?

    There should have been a state's affidavit AND a mother's affidavit, but there was only the state's affidavit. And yes it is 49.225 that caught my eye.
    Quote:

    Quoting Mr. Knowitall
    View Post
    There is no requirement that the affidavit be served on you at the time you are served with the summons and complaint. Further, the statute says "may be established", not "must be established" - the legislature is simply indicating that if such an affidavit is provided it is sufficient to establish probable cause. Probable cause can be established by other means, not described in the statute, with the evidence reviewed on a case-by-case basis.

    I think genetic testing is the only way if it is contested, the 'may' means that the court must consider a few factors (probable cause) before issuing the order to do testing, but once those factors are met, they must order it by the state's affidavit, based on the mother's affidavit, in which those probable cause factors are described, thereby giving them probable cause.

    You are correct they are not required to serve me with the mother's affidavit, but they must have it in order to have probable cause, as the basis for the state's affidavit. But the mother's affidavit is dated almost a month after the state's affidavit, it was not signed until after I had been served. Of course I never would have known that, since they don't serve you, but when I asked about some other stuff in the state's affidavit, I found out that there was no mother's affidavit.

    The putative father can of course agree to being declared the father without dna testing.

    There are some obscure cases where the putative father is deceased with dna testing not possible that were decided based on the petitioner's affidavit alone. The only contested cases I saw without dna testing were older cases before there was dna testing.

    The summons does offer 'no sexual intercourse took place' as a defense. But I think what that boils down to is dna testing cannot be ordered without 'evidence of sexual intercourse'. So the issue is not paternity per se, but the inability of the court to order dna testing without 'evidence of sexual intercourse' and the mother's affidavit that sex took place is the evidence that is required. In her original paternity interview, she said sex did not happen with me, and then later she changed her mind, and made an affidavit to say that it was me.

    Who knows maybe she told them on the phone. But my impression is they needed a sworn affidavit in order to have probable cause. So, when the summons was made, there was only a paternity interview and she had not made an affidavit yet, so there was no affidavit.

    At this point, I don't know if the test would be positive or not, but I don't want to do the test, I think it is easier to dismiss and then see what happens. The alternative is just to do the test but why put your head in the noose until you are forced to?
  • 06-23-2013, 11:01 PM
    Dogmatique
    Re: Can I Dismiss Paternity Suit Do to Insufficient Affidavit
    Don't do the test = be held to be the father by default.

    Do the test = find out for sure.

    Methinks you protesteth too much. You seem to think that you know better than the State. Rest assured, you don't.

    You're welcome. :cool:

    - - - Updated - - -

    And really - how do you intend to prove a negative? Do tell.
  • 06-23-2013, 11:11 PM
    wv123
    Re: Can I Dismiss Paternity Suit Do to Insufficient Affidavit
    Quote:

    Quoting jk
    View Post
    ...the only way they are going to dismiss this is if you prove you were someplace the entire time around the time the mother was impregnated where it would have been impossible for you to impregnate her...

    That is basically what I am trying to do, except that they are the ones who must prove it was me, not me who must prove that it was not me, and as long as they can't test dna, they only have one witness, who has changed her story, and is an interested party. I also think it is possible to squash the mother's affidavit, since the affidavit does not explain why there was a change in her story, it does not say what she says is on 'penalty of perjury', it doesn't say there was no other possible man, etc. I think if she had done the affidavit in the beginning, when they issued the summons, of course it is impossible to fight, but since there was no mother's affidavit when they issued the summons, and her affidavit is different, I can squash it. Yeah sure they can just refile. But I think if I get it dismissed twice, they really have to give up.
  • 06-23-2013, 11:24 PM
    Dogmatique
    Re: Can I Dismiss Paternity Suit Do to Insufficient Affidavit
    No, no they don't. They really don't have to give up - at all.

    (The term is "quash", btw)

    Now. Who is trolling here? You are. Because you know better - remember your post history.

    Because we do. :cool:

    Tell us again, why are you so afraid of a DNA test?
  • 06-23-2013, 11:35 PM
    jk
    Re: Can I Dismiss Paternity Suit Do to Insufficient Affidavit
    Quote:

    Quoting wv123
    View Post
    That is basically what I am trying to do, except that they are the ones who must prove it was me, not me who must prove that it was not me, and as long as they can't test dna, they only have one witness, who has changed her story, and is an interested party. I also think it is possible to squash the mother's affidavit, since the affidavit does not explain why there was a change in her story, it does not say what she says is on 'penalty of perjury', it doesn't say there was no other possible man, etc. I think if she had done the affidavit in the beginning, when they issued the summons, of course it is impossible to fight, but since there was no mother's affidavit when they issued the summons, and her affidavit is different, I can squash it. Yeah sure they can just refile. But I think if I get it dismissed twice, they really have to give up.


    You have that wrong. You would be the one seeking a dismissal. That means you would have to prove whatever you claim as the basis for your dismissal. If you cannot prove that, it proceeds to the next stage.


    You obviously are never going to learn. They have adequate justification to seek a DNA test. The mother stating; I think it's wv123 is probable cause. If she did not state that, you would not be in the situation you are now in.

    You have been wasting your time and now you are wasting mine. If you think you have a basis for a dismissal, file it. I have no hesitation saying it is not going to be granted based on your statements here.
  • 06-24-2013, 12:14 AM
    Mr. Knowitall
    Re: Can I Dismiss Paternity Suit Do to Insufficient Affidavit
    Quote:

    Quoting wv123
    View Post
    There should have been a state's affidavit AND a mother's affidavit, but there was only the state's affidavit. And yes it is 49.225 that caught my eye.

    As previously explained, that's not correct. But you have both affidavits now, so even if you were correct it's moot.
    Quote:

    Quoting wv123
    I think genetic testing is the only way if it is contested, the 'may' means that the court must consider a few factors (probable cause) before issuing the order to do testing, but once those factors are met, they must order it by the state's affidavit, based on the mother's affidavit, in which those probable cause factors are described, thereby giving them probable cause.

    Mom either says you're the father or she doesn't. You dance around that issue. But, again, it's clear from your fright of being tested that you're quite certain that you are the father.
    Quote:

    Quoting wv123
    You are correct they are not required to serve me with the mother's affidavit, but they must have it in order to have probable cause, as the basis for the state's affidavit.

    As previously explained, that's not correct. In most cases it's simply the easiest way.
    Quote:

    Quoting wv123
    But the mother's affidavit is dated almost a month after the state's affidavit, it was not signed until after I had been served.

    As previously explained, that's irrelevant.
    Quote:

    Quoting wv123
    In her original paternity interview, she said sex did not happen with me, and then later she changed her mind, and made an affidavit to say that it was me.

    I don't believe for a second that the state filed a paternity case in which the only facts they alleged were that you had never had sexual relations with the mother. But whatever they said, you appear to be stating that there is now on file with the court an affidavit from the mother that meets the statutory criteria to create probable cause, in which case the issue is moot.
    Quote:

    Quoting wv123
    At this point, I don't know if the test would be positive or not, but I don't want to do the test, I think it is easier to dismiss and then see what happens.

    The allegations you've raised here will not cause the petition to be dismissed, so you had best either prepare to be tested or come up with something else.
    Quote:

    Quoting wv123
    The alternative is just to do the test but why put your head in the noose until you are forced to?

    Noose? If you made a baby, you should man up and support your child.
    Quote:

    Quoting wv123
    View Post
    At this point, I don't know if the test would be positive or not, but I don't want to do the test, I think it is easier to dismiss and then see what happens. The alternative is just to do the test but why put your head in the noose until you are forced to?

    Quote:

    Quoting wv123
    View Post
    Quote:

    Quoting jk
    ..the only way they are going to dismiss this is if you prove you were someplace the entire time around the time the mother was impregnated where it would have been impossible for you to impregnate her...

    That is basically what I am trying to do....

    You know how babies are made, correct? If so and you "don't know if the test would be positive or not", then quite obviously you're not going to be able to "prove you were someplace the entire time around the time the mother was impregnated". Were that the case, you would know and you wouldn't be at all afraid of being tested.
  • 06-24-2013, 12:42 AM
    wv123
    Re: Can I Dismiss Paternity Suit Do to Insufficient Affidavit
    Thanks your advice is noted, Dogmatique. It is clear we just aren't going to agree. Please just don't respond anymore to my posts or thread.
    Quote:

    Quoting Dogmatique
    View Post
    Don't do the test = be held to be the father by default.

    Do the test = find out for sure.

    Methinks you protesteth too much. You seem to think that you know better than the State. Rest assured, you don't.

    You're welcome. :cool:

    - - - Updated - - -

    And really - how do you intend to prove a negative? Do tell.

    - - - Updated - - -

    My question is pretty clear, "Can I Dismiss Paternity Suit Due to Insufficient Affidavit", it would be most useful to hear from someone who knows of a case where insufficient affidavit was a key factor. Or if someone knows how it would work, that would be great. If you think it isn't possible, please, just remain silent. Then if no one answers, I know the answer is 'no'. Comments such as "you should just pay up" aren't really helpful. There are plenty of people who get trapped in paternity suits that they didn't sign up for. Just like there are people who get caught up in any number of other legal problems from speeding tickets to murder. So if you have a problem with discussing an issue because you find it morally repugnant, then don't discuss it. I'm just interested in solutions to a problem.
  • 06-24-2013, 12:45 AM
    Dogmatique
    Re: Can I Dismiss Paternity Suit Do to Insufficient Affidavit
    Oh honey, you don't get to dictate that. If the Moderators/Admin think I'm out of line they'll step in.

    Now. Why do you think other posters are in the same frame of mind as me?

    Are we all trolls who are negative? Really? Because the respondents so far seem to be on the same page. Why do you think that is?
  • 06-24-2013, 02:27 AM
    wv123
    Re: Can I Dismiss Paternity Suit Do to Insufficient Affidavit
    I know what an affidavit is supposed to be, a sworn statement, and they didn't have one when they swore out the summons, and it seems you're supposed to have the mother's affidavit in order to swear out a summons. They may have the information, but it may not even come from the mother, someone else may have turned my name in, and they took a while to convince her to make an affidavit (sworn statement) but based on information they had from some other source, they swore out a summons. But since they had no affidavit at that time, the summons is insufficient, and in fact may have a few small lies in it, since it claims to be based on information provided by the mother, but there does not seem to be any sworn statement from her. Or maybe she gave it to them on the phone but for whatever reason did not swear out her affidavit until later. I am asking if I can successfully motion for the case to be dismissed based on that procedural problem with the affidavit. They swear out many summons I am sure, it isn't unheard of for the authorities to make small mistakes or shortcuts.
    Quote:

    Quoting jk
    View Post
    do you even know what an affidavit is? It is nothing more than a sworn statement. In that statement, if the mother alleges you could be the father, that is adequate to chase you as they are.


    but to the most basic question, from the title of the thread:


    No. A judge is the only entity that can dismiss the suit. You can seek a dismissal by filing whatever you wish but it is the judges discretion to dismiss it or not.

    answer me this:


    if the mother did not allege you are or could be the father, just why has the state filed suit to determine paternity with you as the defendant? Seriously, you are putting way more into this than what there is. The state has been doing this a long time. If you think their suit or supporting evidence is defective and that is a basis to dismiss, then go for it. I am confident the states filings are adequate or, if they are defective, the court will allow them to amend them without ever dismissing the suit.

    - - - Updated - - -

    I see civil court cases dismissed for insufficient affidavit, but I think it is mainly summary judgments, and I don't think this would be a summary judgment, I am wondering if anyone has seen a paternity case where insufficient affidavit (or defective summons) has been a factor, even if the respondent lost. Unless maybe you have an idea how it could be done successfully. Ideas on how it wouldn't succeed, unless there is actually case law, just not useful. If there is case law, they often times discuss scenarios where it might have worked.

    - - - Updated - - -

    This seems to be a case where it was attempted, but did not work since the guy did not bring up the issue of jurisdiction:

    http://mn.findacase.com/research/wfrmDocViewer.aspx/xq/fac.19660218_0003.MN.htm/qx
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