This article provides information on how paternity may in some cases be considered a 'rebuttable presumption' (an arguable point, rather than a foregone conclusion). Also included are some cites to case law on this matter, and some ideas on the manner in which paternity may be contested.

PATERNITY AND FRAUD: Contesting Paternity

Many of you guys now are wondering if that baby is really yours. Hospitals nowadays are testing for paternity at the time of birth, and if they are not, they ask you (in your state of euphoria) to sign an admission of paternity. Normally this is done to enforce your later Child Support obligation (which has a 50/50 chance of being realized). As I am not an attorney I cannot advise on this matter - but I personally would not sign an admission unless I had proof positive (read DNA from independent sources) that the child is, or is not mine. Another thing to remember is that many DNA testing labs have a financial incentive (though not proven) that the putative father is made to be the proven father. Which is why I would recommend that a test be made by a company that has no affiliation with any court system.

But there are new laws emerging now that allows paternity to be a rebuttable presumption, that is if you claim from the onset of the allegation of paternity in a court action, that the mother engaged in extrinsic fraud in order to procure child support from the putative father.

The law still has not caught up with the issue of child support when the alleged father was duped into believing that he was the father, but there is interesting case law on the California front that addresses unjust enrichment by the county for double-dipping for child support when there is a chance of a putative father who has paid support who is later not found to be the father, then the real father is found and then has to pay the county back for entitlements that the mother received, and/or the mother, as a punitive measure has to pay the county back due to her fraud perpetrated upon the courts.

The problem that most men engage in is that they fail to raise the issue of extrinsic fraud where paternity is alleged in order to preserve their claims for later litigation. It is incumbent upon all men in this arena to present all arguments at the first of the hearing/trial stage in the event that things may end up in appeal and it is preserved for the record. You must remember that an issue cannot be raised on appeal if it was not raised at trial level, and there must be was substantial evidence to support your allegations. The appellate court will not entertain an argument that lacks merit or evidence, and even if taken in the most broadest of terms, if is not likely to alter the disposition of the case, the argument is tossed as being without significance.

Many of you are paying support for children that are not yours - but you have not taken the appropriate steps other than just flat out not paying to raise your objections to this archaic view of the old bastardization laws.

Maybe this works for you - but for those that prefer to work the system from the inside out and destroy by laying dynamite at its pillars of foundation by presenting to the court presumptions that it cannot turn its ugly face on, this civil disobedience does not do abiding citizens any good.

That is not to say that civil disobedience is not the way to go - its just not the way to go for everybody. What I offer here is a legal way those who are faced with supporting a child that is not theirs to go into court with evidence at hand.

First of all we must legally analyze the factors of extrinsic fraud and how it pertains to paternity. Most of the cases I will cite are in the 9th Circuit - because the 9th is the 9th and so the rest will follow. Most of the east coast cases - with an exception of a few token ones are still way behind DNA paternity and simple affidavits are enough to establish paternity (and we all know how affidavits are filled with lies)


WHAT CONSTITUTES EXTRINSIC FRAUD

The most thorough explanation that I have found as to what constitutes extrinsic fraud is the Nevada Case of Love v. Love, 114 Nev. 572, 959 P.2d 523, 127 Ed. Law Rep. 1074 (Nev. 05/19/1998)

"A decision of paternity will not operate as res judicata where extrinsic fraud existed in the original proceeding. Where a claim is fraudulently advanced and that fraud is so successful that the other party is not aware that he has a particular claim or defense, this may be a sufficient basis for equitable relief. Villanon v. Bowen, 70 Nev. 456, 471, 273 P.2d 409, 416 (1954). That which keeps one party away from court by conduct preventing a real trial on the issues is extrinsic fraud and forms a sufficient basis for equitable relief from the judgment. Libro v. Walls, 103 Nev. 540, 543, 746 P.2d 632, 634 (1987); Villanon, 70 Nev. at 471, 273 P.2d at 416; Savage v. Salzman, 88 Nev. 193, 195, 495 P.2d 367, 368 (1972) ; Colby v. Colby, 78 Nev. 150, 153-154, 369 P.2d 1019, 1021 (1962); Murphy v. Murphy, 65 Nev. 264, 271, 193 P.2d 850, 854 (1948)." County of Fresno v. Ruiz, 66 Cal.App.4th 1432, 67 Cal.App.4th 539, 78 Cal.Rptr.2d 665, 79 Cal.Rptr.2d 684 (Cal.App. Dist.5 09/30/1998)

"We are satisfied that the record before us establishes the necessary elements to permit an order setting aside the 1989 default and judgment. *fn7 Extrinsic fraud has been defined generally as conduct that deprives the defrauded party of the opportunity to present his or her claim or defense to the court, "that is, where he or she was kept in ignorance or in some other manner, other than from his or her own conduct, fraudulently prevented from fully participating in the proceeding." (In re Marriage of Stevenot, supra, 154 Cal.App.3d at p. 1068.) "[E]xtrinsic fraud is a broad concept that tend[s] to encompass almost any set of extrinsic circumstances which deprive a party of a fair adversary hearing." (Steven W. v. Matthew S. (1995) 33 Cal.App.4th 1108, 1114 [citation and internal quotation marks omitted]; see In re David H. (1995) 33 Cal.App.4th 368, 381.)"

As a non-attorney I cannot give interpretations of the law, but I will purvey to you my take my impressions and with proper consultations - please take this information anyway you see fit as to your situation.

First of all I will give definitions as per Black's Law on certain terms:

Res Judicata: A matter adjudged; a thing judicially judicially acted upon and decided; a thing or matter decided upon judgement. Rule that a final judgement rendered by a court of competent jurisdiction on the merits is conclusive as to the rights of parties and their privies , and, as to them, constitutes and absolute bar to a subsequent action involving the same claim, demand or cause of action. Matchett v. Rose 39 Ill. App 3d 638, 344 N.E. 2d 770, 779. (My take on this - double jeopardy)

Extrinsic Fraud: Fraud which is collateral to the issues tried in cases where the judgement is rendered. Type of deceit which may form basis for setting aside [60(b)] a judgement as for example a divorce granted ex-parte because the plaintiff-spouse falsely tells the court that the court he or she is ignorant of the whereabouts of the defendant-spouse . Patrick v. Patrick, 245 N.C. 195, 93 S.E. 2nd 585.

RULE 60(B) MOTIONS

Dixon v. Pouncy, 979 P.2d 520 (Alaska 05/21/1999)

Following continued disputes over visitation and custody, Irvin, Francine, and the child submitted to single-locus probe DNA testing for paternity.
The tests excluded Irvin as the father of the child. On January 22, 1996, Irvin moved the superior court, pursuant to Rule 60(b), to set aside the portion of the 1993 Decree of Divorce "which determined that he was the father of [C.D.]."...The court held that "the plaintiff's motion for relief from judgment is DENIED as barred by the doctrine of res judicata." The court stated that the Decree of Divorce "was a final judgment of the court which adjudicated Irvin K. Dixon the father of [C.D.]." Furthermore, the court held that the doctrine of res judicata does not require that a claim have been actually litigated; rather, res judicata can also bar a party from relitigating claims that he could have litigated during the prior proceedings. The court found that Irvin had had a clear opportunity to fully litigate the issue of paternity during the divorce proceedings, and thus Irvin was precluded from relitigating the issue now. This appeal followed.

B. Irvin's Rule 60(b) Motion Should Not Have Been Denied Based on Res Judicata.

[28] The superior court's order denying Irvin's Rule 60(b) motion was based solely on the ground that res judicata barred him from litigating the issue of paternity. Res judicata consists of both claim preclusion and issue preclusion. Claim preclusion "prevents a party from suing on a claim which has been previously litigated to a final judgment by that party .