Roger S. v. James S.
251 Ariz. 555
| Ariz. Ct. App. | 2021Background
- Olivia born July 22, 2019; Mother had sexual relations with both Roger and James around conception.
- Birth certificate (filed July 29, 2019) listed Roger as father via a voluntary acknowledgment of paternity.
- James learned of the birth, performed a home DNA test showing he is the biological father, and sought to intervene in the dependency case.
- DCS obtained a court-ordered DNA test confirming James is the biological father; initial proceedings treated Roger’s acknowledgment as a judgment.
- After an initial hearing affirmed Roger’s paternity, James obtained reconsideration, later presented DNA results and testimony that Mother told James she would wait for testing and that Roger knew James could be the father.
- The superior court found a material mistake of fact in the acknowledgment, set aside Roger’s paternity judgment, entered paternity for James, and Roger appealed.
Issues
| Issue | Roger's Argument | James's Argument | Held |
|---|---|---|---|
| Whether A.R.S. § 25-812(E) restrictions (post-60-day challenge limited to fraud, duress, material mistake) apply to a putative third-party father | §25-812(E) should not bar other challenges by a third-party father (relies on Brummond) | §25-812(E) and corresponding Rule 85 apply; putative father must challenge on fraud/duress/mistake within the statutory procedure | §25-812(E) applies to putative third-party fathers; challenge must follow Rule 85 and the statute’s timing requirements |
| Whether James timely challenged the acknowledgment under Rule 85 (six-month window) | James’s later formal Rule 85 motion was untimely; his pro se filing did not allege fraud/duress/mistake | The December 2 pro se “Request to the Court” plus DNA test put parties on notice within six months and should be construed to satisfy the timing requirement | Court exercised discretion to treat the pro se filing as a timely Rule 85 challenge (substance over form) |
| Whether evidence supported setting aside the acknowledgment for material mistake of fact | No material mistake: Mother and Roger knew the possibility and therefore signed knowingly | Testimony and DNA show both knew James could be the father and that Mother intended to await testing—signing was a material mistake under penalty of perjury | Sufficient evidence of material mistake of fact; acknowledgment set aside and paternity awarded to James |
| Whether James’s failure to register with the Putative Father Registry waived his paternity claim | Failure to file registry within 30 days waived rights | Registry rules apply to notice for adoptions; no adoption was sought here so registry does not bar paternity claim | Registry requirement did not bar James’s paternity claim; inapplicable where no adoption was pursued |
Key Cases Cited
- Garlan v. Garlan, 249 Ariz. 278 (App. 2020) (statutory interpretation reviewed de novo)
- Helvetica Servicing, Inc. v. Pasquan, 249 Ariz. 349 (2020) (mixed questions: defer to factual findings; legal conclusions reviewed de novo)
- Gutierrez v. Fox, 242 Ariz. 259 (App. 2017) (voluntary acknowledgment has the force and effect of a judgment)
- Brummond v. Lucio, 243 Ariz. 360 (App. 2017) (addressed scope of challenges to acknowledgments)
- Andrew R. v. ADES, 223 Ariz. 453 (App. 2010) (Rule 85 timing for challenges to acknowledgments)
- State v. Perez, 233 Ariz. 38 (App. 2013) (unsupported arguments may be declined)