The family law team of Spencer Schiefer, Douglas Gardner and Brittany Skinner recently had a victory in the Arizona Court of Appeals which not only created new case law but also returned a 3-year-old son back to our client.
Here is a summary of the published Opinion in Johnson v. Edelstein.
This opinion affirms that absent a finding of fraud upon the court, an action to attack or set aside a paternity judgment established by a voluntary acknowledgment of paternity must be brought within 6 months of when the acknowledgment is filed.
This opinion also rejects an earlier opinion from 2017, which permitted an attack on a voluntary acknowledgement of paternity by a biological father essentially at any time.
In this case, Johnson (client) and Mother signed an acknowledgment of paternity shortly after the child was born in late 2017. Unbeknownst to them at the time, Johnson was not the biological father of the child. Regardless, per A.R.S. § 25-812, the acknowledgment of paternity is the same as a paternity judgment naming Johnson as the father.
Daniels, the biological father, filed to establish paternity in 2019, nearly two years later. At trial, the court found that there was no fraud upon the court (meaning Johnson and Mother did not sign the acknowledgment fraudulently). However, the trial court did an end run around the statute to set aside Johnson’s paternity in favor of Daniels. As a result, Johnson essentially had his child of 3 years old taken away from him.
We filed a special action to reverse the ruling and reinstate Johnson’s paternity. After briefing and oral argument, the Court of Appeals agreed with our analysis and (1) rejected Daniel’s argument to use the Brummond case to allow a never-ending window for him to establish paternity, (2) rejected the trial court’s basis to set aside Johnson’s paternity, (3) affirmed that absent a finding of fraud upon the court, an action to attack or set aside a paternity judgment established by a voluntary acknowledgment of paternity must be brought within 6 months of when the acknowledgment is filed, (4) vacated Daniels’ paternity, (5) reinstated Johnson’s paternity, and (6) reinstated Johnson’s case with Mother to establish his legal decision-making and parenting time for the child.
As a result of this win our client got his 3 year old son back.
Davis Miles McGuire Gardner, a perennial powerhouse in Family Law in Arizona and New Mexico, is fast becoming the authoritative voice in matters of paternity.