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Husband’s Name on Birth Certificate Does Not Bar Father’s Arizona Paternity Suit

Father’s paternity action was not barred and birth certificate is not legal equivalent of voluntary acknowledgment of paternity where child was not born out of wedlock in Arizona case summary.

Bill W. Castillo v. Thania N. Lazo

Extramarital Affair While Husband Is Overseas

While married, the mother had an extramarital affair with the father. The parties’ sexual relationship took place from September 2012 through April 2013. The child was born in July 2013. The mother’s husband was employed overseas throughout the period of conception and, therefore, could not be the biological father. Husband was listed on the child’s birth certificate as “father.”

The alleged biological father provided support to the mother. He and his family also enjoyed frequent visitations with the child.

In December 2015, the father filed a paternity action seeking joint legal decision-making and parenting time. The mother filed a motion to dismiss for failure to state a claim upon which relief can be granted (requesting judgment on the pleadings) and claimed, in part, that ARS § 25-812(E) barred the action.

The trial court granted mother’s motion to dismiss. The father filed a timely appeal.

Trial Court Considered Matters Outside the Pleadings

The Court of Appeals reviewed the trial court’s ruling by treating the grant of motion to dismiss for failure to state a claim as a grant of summary judgment. Because matters outside the pleadings were presented by the parties and the trial court seems to have considered those, the reviewing court treats the matter as a motion for summary judgment. Citing Canyon del Rio Inv’rs LLC v. City of Flagstaff, 227 Ariz. 336, 258 P3d 154 (Ariz. Ct. App. 2011).

Arizona Paternity Actions for Child Not Born Out of Wedlock

Beginning its analysis, the appellate court rejected application of ARS § 25-812(E) regarding voluntary acknowledgment of paternity. This statutory provision only applies when the child was born out of wedlock. The mother was married when her child was born. Although her husband was out of the country when the child was conceived, ruling him out as the biological parent. Furthermore, the 60-day period for challenging an acknowledgment of paternity based upon fraud, duress, or material mistake of fact does not apply in the instant case because there was no acknowledgment of paternity.

ARS § 25-812(E) states as follows:

Pursuant to Rule 85(c) of the Arizona Rules of Family Law Procedure, the mother, father or child, or a party to the proceeding on a Rule 85(c) motion, may challenge a voluntary acknowledgment of paternity established in this state at any time after the 60 day period only on the basis of fraud, duress or material mistake of fact, with the burden of proof on the challenger and under which the legal responsibilities, including child support obligations of any signatory arising from the acknowledgment shall not be suspended during the challenge except for good cause shown. The court shall order the mother, her child or children and the alleged father to submit to genetic testing and shall direct that appropriate testing procedures determine the inherited characteristics, including blood and tissue type. If the court finds by clear and convincing evidence that the genetic tests demonstrate that the established father is not the biological father of the child, the court shall vacate the determination of paternity and terminate the obligation of that party to pay ongoing child support. An order vacating the determination of paternity operates prospectively only and does not alter the obligation to pay child support arrearages or, unless otherwise ordered by the court, any other amount previously ordered to be paid pursuant to § 25-809.

When Paternity Action Can Be Brought

Second, regarding the time within which father could institute proceedings, ARS § 25-804 did apply. This statute permits a paternity action to be brought during mother’s pregnancy or at any time after the child is born. (If seeking child support, then the case must be brought before the child turns 18.)

Birth Certificate Not Equal to Voluntary Acknowledgment of Paternity

Third, even though the husband’s name was listed on the birth certificate, that did not bar father’s suit. The father argued (to which mother did not respond), and the appellate court agreed, that a “birth certificate is not the legal equivalent of a voluntary acknowledgment of paternity” and, so, ARS § 25-812(E) did not apply to time bar father’s paternity action.

After the Arizona legislature amended ARS § 25-812 in 2003, one cannot file a birth certificate as a means of establishing paternity, because the birth certificate – with husband’s name as parent – is not a voluntary acknowledgment of paternity. Father’s paternity suit was timely filed under ARS § 25-804, the applicable statute.

Harmonizing Arizona paternity establishment law, the Court of Appeals concluded:

  1. The father may bring an action to establish paternity under ARS § 803(A)(2) as a man who believes he is the child’s biological father;
  2. The mother’s marital status is irrelevant when the father brings the paternity action;
  3. A paternity suit can be brought when the child is not born out of wedlock; and,
  4. The rebuttable presumption of husband’s paternity in Arizona law could never be rebutted if an action could only be brought when a child was born out of wedlock.

Holding for the father, the appellate court reversed and remanded the case for proceedings consistent with its opinion.

Castillo v. Lazo, 2 CA-CV 2016-0122-FC (December 9, 2016)

For precise language, read the court’s original opinion. Legal citations omitted.

For more information about establishing parentage, read the discussion on Arizona law of paternity establishment. If you are a father trying to establish paternity, you may wish to hire a male divorce attorney near you.