Am I obligated to tell my attorney that a paternity test revealed I am not the real father?
Full Question:
Answer:
If the parents of a child were not married when the mother became pregnant or when the child was born, the child does not have a legal father until paternity is established. A man who voluntarily signs a birth certificate is presumed to be the father until this presumption is rebutted by evidence, typically a genetic testing result, which proves otherwise. All states have programs under which birthing hospitals give unmarried parents of a newborn the opportunity to acknowledge the father's paternity of the child. States must also generally help parents acknowledge paternity up to the child's eighteenth birthday through vital records offices or other entities designated by the state. The father will be shown on the birth certificate if he acknowledges paternity when or close in time to the birth, or the court orders the birth certificate to be changed to reflect the father’s name. A father can acknowledge paternity by signing a written admission or voluntary acknowledgment of paternity or paternity may be established by filing a civil lawsuit. Most states will permit a father to execute an affidavit acknowledging paternity, which eliminates the need for a court action. The affidavit must also be signed by both mother and father, notarized, and filed with the court. A court will not automatically order paternity tests simply because a paternity action has been filed. It will review the petition to determine if there is sufficient information contained therein to warrant or justify the compelling of such a test. If the court orders a paternity test, the mother, child, and alleged father will be tested at a court-designated facility.
Unmarried fathers have rights and duties similar to those of married fathers. For a father who wishes to establish that he is the biological parent, he can do so with relative ease of procedure. The father may believe that he has been unjustly denied knowledge of, or access to, children he may have fathered. This may occur following a contentious parting of ways between parents, and the mother wants no further involvement or contact with the father, and does not want the father involved in the child's life. In most states, a paternity action takes the form of a civil lawsuit, and is clearly not a criminal matter. Only certain persons or parties have legal standing to bring a paternity action, including the mother of the child; the mother of an expected child; a man alleging that he is the biological father of a child; a man alleging that he is the biological father of an expected child; the child; a personal representative of the child; the mother and father of a child (a voluntary action filed together); the mother and father of an expected child (a voluntary action filed together); a state social service agency, interceding in cases of child neglect or need; and a prosecutor's office, interceding in cases of child neglect or need.
Typically, in a complaint for custody, the father will state that he is the father of the child. If a statement is made in the complaint or any of the later proceedings or filings with knowledge that the statement is false, it may lead to charges of perjury, fraud on the court, voiding of any orders made based on the misrepresentaion, and other consequences. A person generally cannot be prosecuted for lies or omissions made to an attorney by itself, but when the attorney incorporates the misrepresentations in a court proceeding, the penalties and consequences mentioned above may result. I suggest you consult a local attorney who can review all the facts and documents involved to determine whether any false or misleading representations have been made.
Please see the NM statutes below to determnie applicability:
40-10A-209. Information to be submitted to court.
(a) Subject to local law providing for the confidentiality of
procedures, addresses and other identifying information in a child-custody
proceeding, each party, in its first pleading or in an attached
affidavit, shall give information, if reasonably ascertainable, under
oath as to the child's present address or whereabouts, the places where
the child has lived during the last five years and the names and present
addresses of the persons with whom the child has lived during that
period. The pleading or affidavit must state whether the party:
(1) has participated, as a party or witness or in any other capacity,
in any other proceeding concerning the custody of or visitation with the
child and, if so, identify the court, the case number and the date of the
child-custody determination, if any;
(2) knows of any proceeding that could affect the current proceeding,
including proceedings for enforcement and proceedings relating to
domestic violence, protective orders, termination of parental rights and
adoptions and, if so, identify the court, the case number and the nature
of the proceeding; and
(3) knows the names and addresses of any person not a party to the
proceeding who has physical custody of the child or claims rights of
legal custody or physical custody of, or visitation with, the child
and, if so, the names and addresses of those persons.
(b) If the information required by subsection (a) is not furnished,
the court, upon motion of a party or its own motion, may stay the
proceeding until the information is furnished.
(c) If the declaration as to any of the items described in
subsection (a)(1) through (3) is in the affirmative, the declarant shall give
additional information under oath as required by the court. The court
may examine the parties under oath as to details of the information
furnished and other matters pertinent to the court's jurisdiction
and the disposition of the case.
(d) Each party has a continuing duty to inform the court of any
proceeding in this or any other state that could affect the current
proceeding.
(e) If a party alleges in an affidavit or a pleading under oath that
the health, safety or liberty of a party or child would be jeopardized by
disclosure of identifying information, the information must be sealed and
may not be disclosed to the other party or the public unless the court
orders the disclosure to be made after a hearing in which the court takes
into consideration the health, safety or liberty of the party or child
and determines that the disclosure is in the interest of justice.
Section 3-303. DENIAL OF PATERNITY. — A presumed father may
sign a denial of his paternity. The denial is valid only if:
A. an acknowledgment of paternity signed or otherwise
authenticated by another man is filed pursuant to Section 3-305 of
the New Mexico Uniform Parentage Act;
B. the denial is on a form provided by the bureau and is signed
or otherwise authenticated under penalty of perjury; and
C. the presumed father has not previously:
(1) acknowledged his paternity, unless the previous
acknowledgment has been rescinded pursuant to Section 3-307 of the
New Mexico Uniform Parentage Act or successfully challenged
pursuant to Section 3-308 of the New Mexico Uniform Parentage Act;
or;
(2) been adjudicated to be the father of the child.
Section 3-304. RULES FOR ACKNOWLEDGMENT AND DENIAL OF
PATERNITY. —
A. An acknowledgment of paternity and a denial of paternity may
be contained in a single document or may be signed in
counterparts, and may be filed separately or simultaneously. If the
acknowledgment and denial are both necessary, neither is valid
until both are filed.
B. An acknowledgment of paternity or a denial of paternity may
be signed before or after the birth of the child.
C. Subject to Subsection A of this section, an acknowledgment
of paternity or denial of paternity takes effect on the birth of
the child or the filing of the document with the bureau, whichever
occurs later.
D. An acknowledgment of paternity or denial of paternity signed
by a minor is valid if it is otherwise in compliance with the New
Mexico Uniform Parentage Act.
Section 3-305. EFFECT OF ACKNOWLEDGMENT OR DENIAL OF
PATERNITY. —
A. Except as otherwise provided in Sections 3-307 and 3-308 of
the New Mexico Uniform Parentage Act, a valid acknowledgment of
paternity filed with the bureau is equivalent to an adjudication of
paternity of a child.
B. Except as otherwise provided in Sections 3-307 and 3-308 of
the New Mexico Uniform Parentage Act, a valid denial of paternity
by a presumed father filed with the bureau in conjunction with a
valid acknowledgment of paternity is equivalent to an adjudication
of the nonpaternity of the presumed father.
Section 3-306. NO FILING FEE. — The bureau shall not charge for
filing an acknowledgment of paternity or denial of paternity.
Section 3-307. PROCEEDING FOR RESCISSION. — A signatory may
rescind an acknowledgment of paternity or denial of paternity only
by means of a judicial proceeding to rescind the acknowledgment or
denial of paternity. A proceeding to rescind an acknowledgment of
paternity or a denial of paternity shall be brought no later than
the earlier of:
A. sixty days after the effective date of the acknowledgment or
denial, as provided in Section 3-304 of the New Mexico Uniform
Parentage Act;
B. in the case of a signatory who was a minor at the time of
acknowledgment, the later of:
(1) sixty days after the eighteenth birthday of the signatory;
or;
(2) sixty days after the effective date of the acknowledgment
or denial, as provided in Section 3-304 of the New Mexico Uniform
Parentage Act; or
C. the date of the first hearing, in a proceeding to which the
signatory is a party, before a court to adjudicate an issue
relating to the child, including a proceeding that establishes
support.
Section 3-308. CHALLENGE AFTER EXPIRATION OF PERIOD FOR
RESCISSION. —
A. After the period for rescission pursuant to Section 3-307 of
the New Mexico Uniform Parentage Act has expired, a signatory to an
acknowledgment of paternity or denial of paternity may commence a
proceeding to challenge the acknowledgment or denial only:
(1) on the basis of fraud, duress or material mistake of fact;
and;
(2) within two years after the acknowledgment or denial is
filed with the bureau or two years after the eighteenth birthday of
the signatory, whichever is later.
B. A party challenging an acknowledgment of paternity or denial
of paternity has the burden of proof.
Section 3-309. PROCEDURE FOR RESCISSION OR CHALLENGE. —
A. Every signatory to an acknowledgment of paternity and any
related denial of paternity shall be made a party to a proceeding
to rescind or challenge the acknowledgment or denial.
B. For the purpose of rescission of or challenge to an
acknowledgment of paternity or denial of paternity, a signatory
submits to the personal jurisdiction of the district courts of this
state by signing the acknowledgment or denial, effective upon the
filing of the document with the bureau.
C. Except for good cause shown, during the pendency of a
proceeding to rescind or challenge an acknowledgment of paternity or
denial of paternity, the district court shall not suspend the legal
responsibilities of a signatory arising from the acknowledgment,
including the duty to pay child support.
D. A proceeding to rescind or to challenge an acknowledgment of
paternity or denial of paternity shall be conducted in the same
manner as a proceeding to adjudicate parentage pursuant to
Article 6 of the New Mexico Uniform Parentage Act.
E. At the conclusion of a proceeding to rescind or challenge an
acknowledgment of paternity or denial of paternity, the court shall
order the bureau to amend the birth record of the child, if
appropriate.
Section 5-505. GENETIC TESTING RESULTS — REBUTTAL. —
A. Pursuant to the New Mexico Uniform Parentage Act, a man is
rebuttably identified as the father of a child if the genetic
testing complies with this article and the results disclose that:
(1) the man has at least a ninety-nine percent probability of
paternity, using a prior probability of zero point five zero, as
calculated by using the combined paternity index obtained in the
testing; and;
(2) a combined paternity index of at least one hundred to one.
B. A man identified pursuant to Subsection A of this section as
the father of the child may rebut the genetic testing results only
by other genetic testing satisfying the requirements of this
article that:
(1) excludes the man as a genetic father of the child; or;
(2) identifies another man as the possible father of the child.
C. Except as otherwise provided in Section 5-510 of the New
Mexico Uniform Parentage Act, if more than one man is identified by
genetic testing as the possible father of the child, the court
shall order them to submit to further genetic testing to identify
the genetic father.
Section 6-621. ADMISSIBILITY OF RESULTS OF GENETIC TESTING —
EXPENSES. —
A. Except as otherwise provided in Subsection C of this
section, a record of a genetic-testing expert is admissible as
evidence of the truth of the facts asserted in the report unless a
party objects, in a writing delivered to the adverse party, to the
record's admission within fourteen days after its receipt by the
objecting party. The objecting party shall cite specific grounds
for exclusion. The admissibility of the report is not affected by
whether the testing was performed:
(1) voluntarily or pursuant to an order of the district court
or a support-enforcement agency; or;
(2) before or after the commencement of the proceeding.
B. A party objecting to the results of genetic testing may call
one or more genetic-testing experts to testify in person or by
telephone, videoconference, deposition or another method approved
by the district court. Unless otherwise ordered by the district
court, the party offering the testimony bears the expense for the
expert testifying.
C. If a child has a presumed, acknowledged or adjudicated
father, the results of genetic testing are inadmissible to
adjudicate parentage unless performed:
(1) with the consent of both the mother and the presumed,
acknowledged or adjudicated father; or;
(2) pursuant to an order of the district court pursuant to
Section 5-502 of the New Mexico Uniform Parentage Act.
D. Copies of bills for genetic testing, for child birth and for
prenatal and postnatal health care for the mother and child that are
furnished to the adverse party not less than ten days before the
date of a hearing are admissible to establish:
(1) the amount of the charges billed; and;
(2) that the charges were reasonable, necessary and customary.
24-14-17. New birth certificates following adoption, legitimation and
paternity determination.
A. The state registrar shall establish a new certificate of birth for a
person born in this state when he receives the following:
(1) a report of adoption as provided in this section, a report of
adoption prepared and filed in accordance with the laws of another state
or country or a certified copy of the decree of adoption together with
the information necessary to identify the original certificate of birth
and to establish a new certificate of birth; except that a new
certificate of birth shall not be established if so requested by the
court decreeing the adoption, the adoptive parents or the adopted
person; or
(2) a request that a new certificate of birth be established and
evidence as required by regulation proving that the person has been
legitimated or that a court has determined the paternity of the person.
B. When a new certificate of birth is established, the actual place and
date of birth shall be shown. It shall be substituted for the original
certificate of birth. Thereafter, the original certificate and the
evidence of adoption, paternity determination or legitimation shall not
be subject to inspection except upon order of a court or in accordance
with the provisions of Section 24-14-13 NMSA 1978 or in the case of a
single adoptive parent.
C. Upon receipt of notice of annulment of adoption, the original
certificate of birth shall be restored to its place in the files, and the
new certificate and evidence shall not be subject to inspection except
upon order of a court.
D. If no certificate of birth is on file for the person for whom a new
certificate is to be established under this section, a delayed
certificate of birth shall be filed with the state registrar as provided
in Section 24-14-15 NMSA 1978 before a new certificate of birth is
established.
E. For each adoption decreed by a court in this state, the court shall
require the preparation of a report of adoption on a form prescribed and
furnished by the state registrar. The report shall include such facts as
are necessary to locate and identify the certificate of birth of the
person adopted, shall provide information necessary to establish a new
certificate of birth of the person adopted and shall identify the order
of adoption and be certified by the clerk of the court.