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[¶1] Brooke Pace ("Mother") became involved in a romantic relationship with Camron Richardson ("Father") in late 2018. Mother gave birth to S.L.R. ("Child") on May 19, 2019. Mother and Father executed a paternity affidavit on the date Child was born, establishing Father as Child's legal father. Mother and Father subsequently became involved in a dispute regarding custody and parenting time of Child. During this dispute, Mother attempted to have the previously-executed paternity affidavit overturned, claiming that Father had committed fraud when he signed it because he had known that he was not Child's biological father. The trial court rejected this attempt and denied Mother's subsequent motion to correct error.

[¶2] Mother challenges the denial of her motion to correct error on appeal. For his part, Father argues that the trial court did not abuse its discretion in denying Mother's motion to correct error and requests that we order Mother to pay his appellate attorney's fees. Upon review, we affirm the trial court's denial of Mother's motion to correct error but deny Father's request for appellate attorney's fees.
Pace v. Richardson (In re S.L.R.) (Ind. App. 2022)

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[¶3] Mother and Father became involved in a romantic relationship prior to Child's birth. Child was born on May 29, 2019. On the date of Child's birth, Mother and Father executed a paternity affidavit,[1] establishing Father as Child's legal father. That same day, Mother signed a document entitled "Verification of Birth Facts," in which she listed Father as Child's father. Appellee's App. Vol. II p. 12.

[¶4] Mother and Father subsequently became involved in a custody and parenting time dispute, which led to Father filing a verified petition to establish paternity, custody, parenting time, and child support. On February 4, 2021, Mother responded by filing a motion to dismiss Father as a party, claiming that the previously-executed paternity affidavit should be set aside because Father had admitted that "he was not the biological father of [Child]" and he had known that "he was not the biological father of [Child at] the time he signed the Paternity Affidavit." Appellant's App. Vol. II p. 15.

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[¶9] In this case, Mother attempted to have the paternity affidavit set aside, claiming that it was fraudulently executed because both she and Father had known that Father was not Child's biological father at the time the paternity affidavit was executed. We considered a similar claim in In re Paternity of H.H., concluding that "[w]e do not believe the legislature intended [Indiana Code section 16-37-2-2.1] to be used to set aside paternity affidavits executed by a man and woman who both knew the man was not the biological father of the child." 879 N.E.2d at 1177.

Rather, we believe the legislature intended to provide assistance to a man who signed a paternity affidavit due to "fraud, duress, or material mistake of fact." Ind. Code § 16-37-2-2.1(i).[2] A woman who gives birth knows she is the parent of the child, see In re Paternity of B.M.W., 826 N.E.2d 706, 708 (Ind.Ct.App. 2005) ("We have always been able to tell with absolute certainty who is the mother of a child."), but men do not have the same certainty. See Adoptive Parents of M.L.V. v. Wilkens, 598 N.E.2d 1054, 1059 (Ind. 1992) ("Because it is generally not difficult to determine the biological mother of a child, a mother's legal obligations to her child arise when she gives birth. It is more difficult, however, to determine the biological father."). Frequently, the woman is the only one who could know whether more than one man might be the father of her child. Accordingly, a woman always has the information necessary to question paternity prior to signing the affidavit. A man, however, could easily sign an affidavit without awareness of the questionable nature of his paternity; this is the situation we believe the legislature intended to address.

If mothers could manipulate the paternity statutes in this manner, men would have no incentive to execute paternity affidavits, and thereby voluntarily accept the responsibility to provide for children financially and emotionally, without genetic evidence proving their paternity. If a woman can assert fraud when she and the father defrauded the State Department of Health, she presumably could assert fraud when she alone defrauded the Department and the man who signed the affidavit. Under the trial court's holding, a man could maintain his legal relationship with a child in such a situation only if he had genetic proof of his paternity. If a woman may "use" a man to support her and her children until she tires of him, and then "dispose" of him as both partner and father, an unwed father would have no guarantee his relationship with a child could be maintained without proof of a genetic relationship. This could not be the intent of our legislature. Neither could it further the public policy of this State, where "protecting the welfare of children ... is of the utmost importance." Straub v. B.M.T. by Todd, 645 N.E.2d 597, 599 (Ind. 1994). Therefore, once a mother has signed a paternity affidavit, she may not use the paternity statutes to deprive the legal father of his rights, even if he is not the biological father.

Outcome: Affirmed.

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