What if I was ordered to Pay Child Support but I’m not the Dad?
Depending on what state you are in, you have a limited window of time to address this. If you believe you have been wrongfully declared or determined to be the father of a child who is not yours, time is of the essence in getting this issue addressed.
Non-Paternity in Missouri
Under Missouri’s non-paternity law, effective August 28, 2009, a previous declaration of paternity can be overturned, or “set aside” in circumstances where DNA testing proves that a presumed or legal father is not the biological father of a child.
Prior to the enactment of this law, once a Missouri court determined that a man was the biological father of a child, it was a conclusive order for all purposes, and only in the rarest of situations could that ruling be overturned. This would even include a decree of dissolution of marriage (divorce) where paternity was never even raised, litigated, or expressly ruled upon by the court.
However, now, under Missouri’s non-paternity law, a man who has been found to be the father of a child can have that order overturned, the child support obligation terminated, past due child support eliminated, and any criminal convictions for non-payment of child support expunged from their record. In other words, if you are concerned that you are paying child support for a child that is not yours, you may have a legal way to stop paying child support and get your child support obligations terminated.
What Does the Missouri Statute Say?
The relevant statute is 210.854 RSMo, it states the following in the relevant portion:
Paternity and support, setting aside judgment,
- In the event of the entry of a judgment or judgments of paternity and support, whether entered in one judgment or separately, a person against whom such a judgment or judgments have been entered may file a petition requesting a circuit court with jurisdiction over the subject child or children to set aside said judgment or judgments in the interests of justice and upon the grounds set forth in this section. The petition shall be filed within two years of the entry of the original judgment of paternity and support or within two years of entry of the later judgment in the case of separate judgments of paternity and support and shall be filed in the county which entered the judgment or judgments of paternity and support. Any such petition shall be served upon the biological mother and any other legal guardian or custodian in the same manner provided for service of process in the rules of civil procedure. The child or children shall be made a party and shall have a guardian ad litem appointed for the child or children before any further proceedings are had. If the child or children are recipients of IV-D services as defined in subdivision (8) of section 454.460, the family support division shall also be made a party and shall be duly served.
- The petition shall include an affidavit executed by the petitioner alleging that evidence exists which was not considered before entry of judgment and either:
- An allegation that genetic testing was conducted within ninety days prior to the filing of such petition using DNA methodology to determine the probability or improbability of paternity, and performed by an expert as defined in section 210.834. The affidavit shall also allege that the test results, which are attached thereto, indicate that a person subject to the child support payment order has been excluded as the child's father; or
- A request to the court for an order of genetic paternity testing using DNA methodology.
- The court, after a hearing wherein all interested parties have been given an opportunity to present evidence and be heard, and upon a finding of probable cause to believe said testing may result in a determination of nonpaternity, shall order the relevant parties to submit to genetic paternity testing. The genetic paternity testing costs shall be paid by the petitioner.
- Upon a finding that the genetic test referred to herein was properly conducted, accurate, and indicates that the person subject to the child support payment order has been excluded as the child's father, the court shall, unless it makes written findings of fact and conclusions of law that it is in the best interest of the parties not to do so:
- Grant relief on the petition and enter judgment setting aside the previous judgment or judgments of paternity and support, or acknowledgment of paternity under section 210.823 only as to the child or children found not to be the biological child or children of the petitioner;
- Extinguish any existing child support arrearage only as to the child or children found not to be the biological child or children of the petitioner; and
- Order the Department of Health and senior services to modify the child's birth certificate accordingly.
- The provisions of this section shall not apply to grant relief to the parent of any adopted child.
- A finding under subsection 4 of this section shall constitute a material mistake of fact under section 210.823.
- The provisions of this section shall not be construed to create a cause of action to recover child support or state debt, under subdivision (2) of subsection 1 of section 454.465 and subsection 10 of section 452.340, that was previously paid pursuant to the order. The petitioner shall have no right to reimbursement for any money previously paid pursuant to said order.
- Any petitioner who has pled guilty to or been found guilty of an offense for criminal nonsupport under section 568.040, as to a child or children who have been found not to be the biological child or children of the petitioner, may apply to the court in which the petitioner pled guilty or was sentenced for an order to expunge from all official records all recordations of his arrest, plea, trial, or conviction. If the court determines, after hearing, that the petitioner has had a judgment or judgments of paternity and support set aside under this section, the court shall enter an order of expungement. Upon granting of the order of expungement under this subsection, the records and files maintained in any administrative or court proceeding in an associate or circuit division of the circuit court under this section shall be confidential and only available to the parties or by order of the court for good cause shown. The effect of such order shall be to restore such person to the status he or she occupied prior to such arrest, plea, or conviction and as if such event had never taken place. No person as to whom such order has been entered shall be held thereafter under any provision of any law to be guilty of perjury or otherwise giving a false statement by reason of his failure to recite or acknowledge such arrest, plea, trial, conviction, or expungement in response to any inquiry made of him for any purpose whatsoever and no such inquiry shall be made for information relating to expungement under this section.
What does the Kansas Statute say?
The relevant statute in Kansas is KSA 23-2209. It states the following in the relevant portion:
- A child or any person on behalf of such a child may bring an action:
- At any time to determine the existence of a father and child relationship presumed under K.S.A. 2012 Supp. 23-2208, and amendments thereto; or
- at any time until three years after the child reaches the age of majority to determine the existence of a father and child relationship which is not presumed under K.S.A. 2012 Supp. 23-2208, and amendments thereto.
- Except as otherwise provided in this subsection, if an acknowledgment of paternity pursuant to K.S.A. 2012 Supp. 23-2204, and amendments thereto, has been completed the man named as the father, the mother or the child may bring an action to revoke the acknowledgment of paternity at any time until one year after the child's date of birth. The legal responsibilities, including any child support obligation, of any signatory arising from the acknowledgment of paternity shall not be suspended during the action, except for good cause shown. If the person bringing the action was a minor at the time the acknowledgment of paternity was completed, the action to revoke the acknowledgment of paternity may be brought at any time until one year after that person attains age 18, unless the court finds that the child is more than one year of age and that revocation of the acknowledgment of paternity is not in the child's best interest.
The person requesting revocation must show and shall have the burden of proving, that the acknowledgment of paternity was based upon fraud, duress or material mistake of fact unless the action to revoke the acknowledgment of paternity is filed before the earlier of 60 days after completion of the acknowledgment of paternity or the date of a proceeding relating to the child in which the signatory is a party, including, but not limited to, a proceeding to establish a support order.
If a court of this state has assumed jurisdiction over the matter of the child's paternity or the duty of a man to support the child, that court shall have exclusive jurisdiction to determine whether an acknowledgment of paternity may be revoked under this subsection.
If an acknowledgment of paternity has been revoked under this subsection, it shall not give rise to a presumption of paternity pursuant to K.S.A. 2012 Supp. 23-2208, and amendments thereto. Nothing in this subsection shall prevent a court from admitting a revoked acknowledgment of paternity into evidence for any other purpose.
Petition to Set Aside or Vacate an Order for Paternity
An action to set aside an order of paternity is filed in the form of an original petition or a motion to modify, depending on the procedural history of the case. There must be evidence that exists that was not considered before the entry of the original judgment, and a DNA test must show conclusively that the man is not the father of the child. The DNA test generally must have been performed within 90 days of the filing of the petition/motion for non-paternity, or the court must order the parties to submit to DNA testing after the case is filed. The Petitioner is required to pay for the costs of the DNA testing.
The petition generally must be filed within two years of the entry of the original judgment of paternity and/or support. A Guardian Ad Litem must be appointed in all cases to represent the interests of the child.
If all requirements are met, the court has the ability to enter judgment setting aside the previous judgment of paternity and child support, including a previous acknowledgment of paternity, extinguish any existing child support arrearage, and order the Department of Health and Senior Services to modify the child's birth certificate accordingly upon a finding that the genetic test was properly conducted, accurate, and excludes the petitioner as the child's father.
In addition, any petitioner may apply for expungement of criminal nonsupport records to the court in which the petitioner pled guilty or was sentenced. Such expungement shall only apply to records for criminal nonsupport of a child or children for which the petitioner was found not to be the biological father.
The provisions of the non-paternity law do not apply to grant relief to the parent of any adopted child nor will such provisions be construed to create a cause of action to recover child support or state debt previously paid under court order. The petitioner does not have a right to reimbursement of any monies paid previously under said order.
Consult with a Missouri or Kansas Family Law Attorney Today:
If you have questions about filing a paternity case or requesting the court to determine that a previous order of paternity is not valid, reach out to our experienced and knowledgeable team today! Contact Pingel Family Law today by calling (816) 208-8130 to schedule a consultation today.