Mother fraudulently acknowledged husband’s paternity in her Arizona petition for divorce. The husband was awarded joint custody, yet did not adopt the child and was not added to the birth certificate. Two years after divorcing, the former spouses were parties in Mr. Chao’ action to establish paternity. The Superior Court set aside that portion of the divorce consent decree awarding parental rights to the former husband based upon mother’s false paternity claim. The former spouses sought relief through this special action. The Court of Appeals accepted jurisdiction in the best interests of the child, but denied relief and let stand the lower court’s order.
Child’s Looks Do Not Establish Paternity
When she became pregnant in 2004, the mother was romantically involved with two men: Mr. Ramirez and Mr. Chao (self-identified as Asian American). When Chao learned of the pregnancy, he asked the mother if she would contact him after the birth and tell him whether the child looked like him. When the child was born in February 2005, no father was identified on the birth certificate. A few months later, the mother told Chao her baby “doesn’t look anything like you at all,” lacked “Asian characteristics,” and insisted Ramirez was “100 percent” the biological father.
When the child was a two-year-old, the mother married Ramirez (2007). However, they divorced in 2012 with a consent decree entered. During the marriage, the child’s only legal parent was the mother. Her husband did not adopt the child and the birth certificate was not amended to add his name.
In her petition for divorce, the mother knowingly made a false statement by asserting that her child was “born to or adopted by” her husband. This declared acknowledgement of Ramirez’ paternity was untrue. In husband’s responsive pleading, he likewise acknowledged paternity. The Superior Court entered the divorce decree awarding joint custody to the husband as legal parent. He was not ordered to pay child support.
Mother Posted Photographs of Child to Social Media
In 2014, Chao viewed photographs of the child on the mother’s social media account. Chao thought the child had “Asian characteristics” resembling his own. Again, he asked the mother if the child was his. This time she answered in the affirmative, “Yes, I do think you are the biological father. When it first happened I didn’t think so, but as she has gotten older she looks a lot like you.” She admitted that, “I do not think a DNA test is necessary since she looks just like you.”
Initially, the mother agreed Chao should be part of the child’s life. She agreed to complete DNA testing. And that Chao should “pay for child support and counseling to properly introduce him” to their daughter. About three months later, however, the mother changed her mind. At which point, Chao sought to assert father’s rights and filed a petition to establish paternity, seek legal decision-making, and obtain child support orders.
Following an evidentiary hearing on paternity, the mother was found by clear and convincing evidence to have committed a “fraud upon the court” by falsely acknowledging her husband’s paternity in the divorce petition. (Secondarily, if not a fraud upon the court, then material mistake. See ARS § 25-812.) By contrast, the ex-husband was not found to have engaged in any fraud or misconduct.
The court granted Chao’s Rule 85(C)(1) Motion (seeking relief from a judgment or order for stated reasons) to set aside that portion of the divorce decree that awarded parenting rights to the former husband, vacating all parenting rights awarded to him. Despite standing in loco parentis to the child, the former husband was stripped of legal decision-making with no visitation rights. The former spouses filed a joint petition for special action arguing the trial court erred citing ARS § 25-812(E) and ARFLP Rule 85(C)(1)(f).
Divorce Judgment Set Aside for Mother’s Fraud Upon the Court
The former spouses claimed the mother did not intentionally commit fraud. First, they argued her conduct did not rise to the level of “the most egregious conduct involving a corruption of the judicial process itself,” citing Alvarado v. Thomson, 240 Ariz. 12 (Ariz. Ct. App. 2016). Second, they argued the court wrongly applied “an ignorance of the truth standard” in finding mother guilty of fraud upon the court when the movant failed to prove fraud was deliberate. They also argued the court unfairly extinguished the former husband’s parental rights when he was found to have been “innocent of wrongdoing.” The Court of Appeals rejected these arguments.
The family court has authority to set aside a divorce judgment whenever the movant (that is, Chao) “proves [by clear and convincing evidence] the judgment was the product of fraud upon the court.” The lower court applied the correct standard in finding the mother guilty. At best, Ramirez stood in loco parentis to the child, having “put himself in the situation of a lawful parent by assuming the obligations incident to the parental relation.” Citing Garay Uppen v. Superior Court, 116 Ariz. 81 (Ariz. Ct. App. 1977). The parental legal rights that Ramirez enjoyed existed only because the child’s mother committed fraud upon the court. If the former husband desires visitation, legal decision-making, or placement of the child with him, then he may petition the court to assert rights as a third party in accordance with ARS § 25-409.
What Is Fraud Upon the Family Court?
A party commits fraud upon the court by concealing material facts and suppressing the truth with the intention of misleading the court. Citing Cypress on Sunland Homeowners Ass’n v. Orlandini, 227 Ariz. 288 (Ariz. Ct. App. 2011). The mother intentionally misled the court before the divorce decree was entered by concealing material facts regarding the child’s actual biological father. The contrived declaration of paternity acknowledgment was a fraud upon the court that damaged the “integrity of the judicial process” and those institutions designed to “protect and safeguard the public.”
Knowing her child’s biological father was not her spouse, the mother obtained a divorce decree awarding joint legal custody to the husband “by concealing material facts and suppressing the truth with the intent to mislead the court.” In so doing, she skirted the law to avoid court proceedings necessary to assess the child’s best interests, as with proceedings for adoption or permanent guardianship.
Under Arizona law, the spouses could have executed a valid acknowledgment of paternity according to ARS § 25-812(A). The process is easy and straightforward. Any such acknowledgment would have been presumed valid and binding, having the same force and effect as a court judgment. But these spouses took no action during the marriage. Because the mother presented a false claim under ARS § 25-403, and did so with knowledge that her claim was false, Chao was awarded attorneys’ fees and costs assessed in this special action.
Clark & Ramirez v. Hon. J. Kreamer/Chao, 1 CA-SA 17-0141 (Ariz. Ct. App. Nov. 14, 2017)
For precise language, read the court’s original opinion. Legal citations omitted.
Paternity establishment is a necessary step in seeking legal decision-making, parenting time, and child support orders. For an overview of what to expect with paternity establishment proceedings in Arizona family law, visit this discussion on our website and contact a fathers rights lawyer.