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Cesar C. v. Alicia L. - 281 Neb. 979, 800 N.W.2d 249 (2011)

Rule:

Neb. Rev. Stat. § 43-1402 (Reissue 2008), regarding the liability of parents to support a child, refers to the "father of a child whose paternity is established either by judicial proceeding or by acknowledgment as hereinafter provided." Section 43-1402 therefore contemplates that paternity may be established by acknowledgment and that establishment of paternity by acknowledgment is the equivalent of establishment of paternity by a judicial proceeding. Reading these statutes together, the provision in § 43-1409 means that the acknowledgment is a "legal finding" to mean that it legally establishes paternity in the person named in the acknowledgment as the father.

Facts:

Cesar and Alicia lived together and had an intimate relationship between 2004 and 2006. During that time, Alicia became pregnant. Cesar and Alicia were not married. In 2006, Alicia gave birth to Jaime; Cesar was present at the birth. On the day after Jaime’s birth, Cesar and Alicia both signed a form provided by the Nebraska Department of Health and Human Services titled “Acknowledgement of Paternity,” in which both Cesar and Alicia acknowledged that Cesar was Jaime’s biological father. Their signatures were notarized. When Alicia learned that she had an outstanding federal warrant for her arrest for conspiracy to deliver methamphetamine, she fled to Lexington without notifying Cesar, leaving Jaime with Cesar. She was arrested, and remained in prison until August 2008.

In 2009, Cesar filed a complaint to establish paternity, custody, and child support with respect to Jaime. Cesar sought an order declaring him to be Jaime's father, granting him custody of Jaime, and ordering Alicia to pay child support. In a separate motion, Alicia asserted that it was possible that Cesar was not Jaime’s biological father, therefore, she requested that the court order Cesar to submit to genetic testing to determine paternity. The court granted the request. After the genetic testing excluded Cesar as being Jaime's biological father, Alicia filed a motion for summary judgment and motions to, inter alia, grant her temporary custody of Jaime and vacate the order directing her to pay child support. Cesar then offered into evidence the notarized acknowledgment of paternity signed by Cesar and Alicia at Jaime's birth. It was admitted as evidence; however, the court did not consider the legal effect of the acknowledgment. The court applied the parental preference doctrine and concluded that Alicia, as the biological parent of Jaime, had the superior right to custody unless such custody would be detrimental to Jaime's welfare. On appeal, Cesar argued that the district court failed to give proper legal effect to the signed, unchallenged acknowledgment.

Issue:

Did the district court err in not considering the legal effect of the signed, unchallenged acknowledgment of Jaime’s paternity?

Answer:

Yes.

Conclusion:

The Court held that the proper legal effect of a signed, unchallenged acknowledgment of paternity was a finding that the individual who signed as the father was in fact the legal father. The district court committed plain error when it failed to give proper legal effect to the acknowledgment. Such failure resulted in the district court's ordering the putative father to submit to genetic testing, which led to a determination that he was not the child's biological father, which led the district court to apply the parental preference doctrine and conclude that the mother had a superior right to custody of the child. If the district court had given proper legal effect to the acknowledgment, it would have viewed both Cesar and Alicia as legal parents to the child.

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