Fraud Upon the AZ Court By Fraudulent Paternity Acknowledgment

Categories: Child Custody

Arizona fraudulent paternity acknowledgement case summary.

Ernest Alvarado v. Hon. Peter A. Thompson, Nicholas Murrietta, Vanessa Raquel Trujillo, Yvette Alvarado

The child’s mother and a man who was not the child’s biological father executed a fraudulent paternity acknowledgment. His intention was to get the child outside Arizona’s legal adoption process. This paternity acknowledgement was a “fraud upon the court” because it prevented the judge from conducting a best interests of the child assessment, a requirement in all adoption cases.

This Special Action was accepted by the Arizona Court of Appeals because it involved a legal question of statewide importance relating to the best interests of the child.

Fraudulent Paternity Acknowledgement Executed and Filed

While pregnant in 2011, the mother informed the biological father, Murrietta, of her pregnancy and desire to put their child up for adoption. When he asked about paternity testing, she stopped communicating with him until after the child was born. No paternity test was conducted prior to 2015.

The child was born in November 2011. Without providing specifics, the mother told Murrietta that his child had already been adopted. In fact, there was no adoption. Instead, she agreed to sign a fraudulent paternity acknowledgement listing Alvarado as the father. Under penalty of perjury, they executed the paternity acknowledging so Alvarado’s name would appear on the child’s birth certificate.

The fraudulent paternity acknowledgement was filed with the Arizona Department of Economic Security (DES) with Alvarado added to the certificate of birth. Alvarado explained to his spouse that he had not fathered the child, but did pay the child’s mother to give him the baby. As the “parent,” Alvarado took custody and control of the child which he and his wife raised as their own for the next three years.

Mother Tells Biological Father the Child Was Adopted

Alvarado could not be the child’s legal parent without an adoption. Arizona’s adoption process requires a judicial best-interests of the child determination. By filing a fraudulent paternity acknowledgement – what the court characterized as an “under-the-table adoption” – Alvarado avoided the adoption process and prevented the court from conducting the best interests assessment. See ARS § 8-116(A) on adoption.

Alvarado’s arrangement went undetected and unchallenged until he filed for divorce in December 2014. His petition listed no minor children of the marriage. In his wife’s responsive pleading she disclosed that he was the legal father of the minor child they were raising together.

As part of her divorce case, early in 2015 Mrs. Alvarado asked the child’s mother to have Murrietta take a paternity test. That’s when Murrietta learned there was no adoption.

Setting Aside Paternity Acknowledgment for Fraud

As the biological father, Murrietta motioned to set-aside Alvarado’s acknowledgment of paternity as a fraud upon the court, relying on ARS § 25-812(D). Arizona law allows a parent or child, or other interested party, to challenge an acknowledgment of paternity specifically because of fraud, duress, or material mistake of fact – and at any time.

Alvarado objected to the motion, relying on ARFLP Rule 85(C)(2) which bars such motions if brought over six months after the paternity acknowledgment.

The Court of Appeals affirmed the trial court’s decision. That is, to intentionally create a fraudulent acknowledgment by listing the wrong biological father, and using it to avoid the adoption process, is a fraud upon the court.

Fraud Upon the Court Is Not Time-Barred in Arizona Law

Was the biological father’s request to set aside the paternity acknowledgement time-barred? No. A fraud against the court is not time barred by ARFLP Rule 85(C)(2).

A paternity acknowledgment has the same force and effect as a Superior Court judgment and is presumed valid and binding until proven otherwise. Ordinarily, only a brief period is allowed for challenging the finality of a judgment. In part, that’s because of the need to “advance a child’s best interests by providing … permanency.” However, the time-bar is inapplicable in this case wherein “falsifying information under oath to the court establishes fraud upon the court.”

The appellate court held “the six-month time limit in Rule 85(C)(2) does not apply to fraud upon the court.” First, the trial court properly found the paternity acknowledgment to be a fraud upon the court. Second, Alvarado obtained a judgment by concealing material facts and suppressing the truth with the intent to mislead the court.

This is very serious. An act of fraud upon the court “harms the integrity of the judicial process and is a wrong against the institutions set up to protect and safeguard the public.” (Citing Rogone v. Correia, 236 Ariz. 43, 48 (Ct. App. 2014).)

Paternity Established By Genetic Testing

In the trial court’s findings, the mother and Alvarado executed the paternity acknowledgement “when they both knew full well that [Alvarado] was not the father.” Furthermore, Alvarado’s purpose was to “avoid the adoption process, which would have required due process and notification to [Murrietta,] the biological father.” Murrietta was found to be quite capable of parenting his child. It was in the best interests of the child to set-aside the fraudulent acknowledgement and allow paternity to be established by genetic testing.

The parties were ordered to have Murrietta – proved to be the biological father – placed on the birth certificate.

Alvarado v. Hon. Thompson/Murrietta, et al., 1 CA-SA 16-0051 (May 31, 2016)

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

To learn more, see our discussion on paternity establishment in Arizona law.