questions & answers

Question: I have been paying child support for close to ten years and not doing a very good job at it. However, I just found out, through DNA, that the child is not mine and have written proof from the lab showing this fact. What can I do to finally stop the payments legally?

Answer:

In Arizona an action may be filed at any time to overcome paternity under Arizona Revised Statutes 25-812 Voluntary Acknowledgment of Paternity; Action to Overcome Paternity. However, if more than 60 days has passed since the entry of judgment of paternity then certain facts must be present to allow the Court to review the matter.

After the filing of the action, the Court would review the facts to determine if one of the criteria of Rule 60(c) of the Arizona Rules of Civil Procedure has been met. Rule 60(c) states as follows:

Rule 60(c). Mistake; inadvertence; surprise; excusable neglect; newly discovered evidence; fraud, etc. On motion and upon such terms as are just the court may relieve a party or a party's legal representative from a final judgment, order or proceeding for the following reasons:

(1) mistake, inadvertence, surprise or excusable neglect;

 (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(d);

(3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party;

(4) the judgment is void;

(5) the judgment has been satisfied, released or discharged, or a prior judgment on which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or

(6) any other reason justifying relief from the operation of the judgment.

The motion shall be filed within a reasonable time, and for reasons (1), (2) and (3) not more than six months after the judgment or order was entered or proceeding was taken. A motion under this subdivision does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order or proceeding, or to grant relief to a defendant served by publication as provided by Rule 59(j) or to set aside a judgment for fraud upon the court. The procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action. If the Court is satisfied that one of the criteria has been met then it may enter a new order to overcome the paternity. Unfortunately, any back amounts for child support will still be due unless the Court makes the unusual order abating the back amount. It is important to file a Motion with the Court as soon as possible after information becomes available that indicates that the judgment of paternity was incorrect. The Court may find it necessary to order paternity testing and if the individual is not the father of the child then he may lose any rights to visit with the child or to assist in making decisions regarding the child.

Since Family Law cases can be very complicated, you may want to have an attorney assist with this problem. You may want to look at the article titled "Where to Find an Attorney for Specific Legal Advice." A referral for an attorney, if needed, may be obtained by contacting Referral Services at 602-263-8856. Additional legal resources may be found at the State Bar of Arizona website. Further information may be available by calling Lawyers on Call, the 1st Tuesday of the month between 5 and 7 pm. Information and limited assistance may be available at self help centers, locations.