IN THE SUPERIOR COURT #2 JUVENILE DIVISION GRANT COUNTY, INDIANA MAR 11 2009 ake. Fe Bsen > cusnicoce FINDINGS, RECOMMENDATIONS, AND ORDER This matter comes before the Court on the Petition to Set Aside Paternity Affidavit filed by the Respondent ( ) on September 18, 2008. On November 13, 2008, the parties appear in person and by counsel for hearing. Having taken this matter under advisement, the Commissioner recommends the Court find and order as follows: 1. On December 11, 2003, Petitioner (~ “ ) gave birth to XU. On December 12, 2003, ~ was administratively determined to be XU’s father by he and —.... signing a Patemity Affidavit at Marion General Hospital (Indiana). 2. Prior to and after the birth of XU, ~ ° and “ived together in an intimate relationship. Both of their families attended a baby shower for Echo. Before XU’s birth and when the Patemity Affidavit was signed, both parents believed ~ was the father. ~ * did not request genetic testing within 60 days of XU’s birth. The parties lived together until August 2005, when they separated. 3. On April 26, 20071" * filed a Petition to Establish Child Support. On July 12, 2007 an order was entered finding that-...__was duly served with notice and had failed to appear. The Court determined Francisco signed a Paternity Affidavitthat had administratively adjudicated him to be XU’s father and ordered child support of $50 per week. An Income Withholding Order was issued; and, -....__ testified he paid child support from August of 2007 to July of 2008, 4. On August 21, 2007, ~ * » filed correspondence with the Court requesting “.... a court date (be set) for a hearing on changing my son’s last name.” She also wrote: “My son XU, born on December 11, 2003 to T ~, has had no contact whatsoever with his father since August 2005.” Her letter makes no reference that "is not or may not be XU’s father. A hearing was set for September 14, 2007. ~ was directed to provide notice to Francisco, but there is no evidence that this was done. Neither party appeared for the hearing. Four (4) days later filed his Petition to Set Aside Paternity Affidavit, resulting in this hearing, 5. testified that some six (6) months after XU was bom she became suspicious that ~ was not the father, in part because she is Caucasian, is Hispanic, another possible father is African-American; and XU became darker as he aged. There was no evidence that 1... told. bout this concern; and, he offered no testimony regarding the alleged changing complexion of KU. In fact, he continued to live with and XU until August, 2005; and, he paid child support after the separation, 6. su testified that presumably around the time” * s coneeived XU they had gone to a party, during which they had an argument. As a result, he ended up alone with a different woman. He knew! “and aman were also alone together ina separate part of the house. The evidence established both parties knew the other had the ‘opportunity to have sex with someone else at the party. testified she had sex withthe other man at the party and did not tell 1 » testified he did not have sex with the other woman, 7. ’s request to nullify the Paternity Affidavit is based upon Indiana Code 16-37-2-2.1, which provides exception to the rule prohibiting a man from contesting administratively adjudicated paternity if he establishes “fraud, duress or ‘material mistake of fact existed in the execution of the paternity affidavit”. If this threshold issue is proven by a preponderance of the evidence, and thereafter a court- ordered genetic test shows he is not the father, the paternity affidavit may be set aside Francisco alleges and has the burden of proving he signed the paternity affidavit as a result of “fraud and/or a material mistake of fact”. oa asserts that Echo had a legal duty to tell him she had engaged in sexual intercourse with another man; and, that her failure to do so was “fraud and/or a material mistake of fact”. “ _* _»’s counsel submitted a post-hearing Memorandum arguing that the parties’ admitted intimate personal relationship at the time XU was conceived created a duty requiring each to inform the other of sexual intercourse with third parties, 9. »’s Memorandum mistakenly sets forth important language of a recent case to support his conclusion. In Re the Paternity of M.M., 889 NE2d 846 (Ind. App. 2008) ruled an alleged father who had signed a patemity affidavit proved either fraud or material mistake of fact and established extreme and rare circumstances based on evidence that has become available independent of court action when he provided evidence of two (2) genetic tests that showed he was not the father (both tests being performed before father’s filing of a pleading to set aside the Paternity Affidavit),