DNA Evidence Allowed When TN Man Wins Re-Opening Paternity

Tennessee law case summary on paternity and parentage in family law from the Court of Appeals.

In Re T.M.S.  – Tennessee divorce paternity

The child at issue in this paternity case was born in 2004, after the mother had an “off and on” sexual relationship with the respondent.  Unbeknownst to him, however, she had also had intimate relations with at least one other man during the relevant time period.  He visited the mother and child in the hospital, and apparently signed the birth certificate.  The mother, however, had not disclosed to him the other relationship.

The next year, the State of Tennessee filed a petition for child support against the respondent, but no action was ever taken until 2010, when a hearing was held.  There was no record as to what exactly occurred at that hearing, but the trial court ordered the respondent to pay $270 per month in child support, with a retroactive award of over $20,000.  After that hearing, the respondent secured a DNA test, which indicated a 0% chance that he was the father.  He then filed a petition to disestablish parentage.  In that petition, he alleged that the mother was reckless with the truth in failing to inform him of the other relationship, and that she had fraudulently informed him that he was the father.

The trial court granted a motion to exclude the DNA test results, and denied the motion to disestablish paternity, since it would not be in the best interest of the child.  The respondent was ordered to continue paying child support.  After an unsuccessful rehearing, the respondent appealed to the Tennessee Court of Appeals.  He argued that the trial court erred in finding that there had been fraud in the procurement of his admission of paternity, and that he should have been allowed to offer evidence of those circumstances.

The trial court had based its holding on the fact that the respondent had signed a Voluntary Acknowledgment of Paternity (VAP).  There are only limited circumstances under which a VAP may be rescinded.  After five years have elapsed, the only grounds for rescinding are fraud, duress, or material mistake of fact.  The trial court had concluded that the VAP had been signed more than five years earlier.  However, the record did not contain a copy of the VAP, and the Court of Appeals had no way to determine whether the five year limit was met.  The Court of Appeals therefore concluded that the VAP was “nonexistent for purposes of this appeal.”   Without the VAP, the Court of Appeals held that the earlier order setting paternity should have been set aside.

Furthermore, the Court of Appeals held that, even if there had been a VAP, the mother’s failure to speak of the earlier affair could be enough to constitute fraud.

Under these facts, the Court of Appeals held that the trial court should have ordered a DNA test, and remanded the case for such a test.  If the test revealed that the respondent is not the father, then the child support obligation should be set aside.  The Court of Appeals also assessed the costs of the appeal against the mother and the state.

No. W2012-02220-COA-R3-JV (Tenn. Ct. App. July 8, 2013).

See original opinion for exact language.  Legal citations omitted.

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