YOU MAY BE ABLE TO CHALLENGE THE ORDER TO PAY
By Leigh Carson
Under Missouri law, a man may file a Petition requesting a court to set aside a judgment of paternity or support. The right to file such a Petition challenging a judgment that was entered at any time in the past arises under the law that became effective August 28, 2009. This right to file regardless of how old the judgment is that is being challenged expires December 31, 2011. After December 31, 2011, a request to set aside a judgment of paternity or support must be filed within two years of the entry of the judgment for child support.
The Petition must be filed in the same county that entered the original judgment, regardless of where everyone lives now. The Petition must be served upon the mother of the child or children at issue as well as any legal guardian or custodian of the child. The child must be made a party to the lawsuit.
The man filing the Petition must allege that there is evidence that was not considered at the time of the judgment for paternity or support and that either genetic testing indicating that the person who is filing the Petition is NOT the father of the child was done in the 90 days prior to the filing of the Petition (and a copy of the results excluding him as the father must be attached to the Petition) OR requesting genetic (paternity) testing.
The Court may order genetic testing if there is a hearing and the Judge believes that there is probable cause to believe that testing may result in a determination of non-paternity.
If the Court finds that the genetic testing was properly done and the results exclude the man who filed the Petition as the father of the child, the Court may set aside the judgments of paternity and/or support; terminate the child support judgment permanently and modify the child’s birth certificate. The Court, however, may decline to enter any of the relief listed above if it finds the same is not in the best interest of the parties. The law is so new that there is no guidance on when relief will be found not to be in the best interests of the parties.
The granting of relief such as removal of a man’s name from the birth certificate as the child’s father or termination of the child support obligation does not give the man wrongfully named as the father the right to get the child support already paid returned to him. However, men convicted of criminal non-support with respect to children determined by the Court not to be his biological children may apply for an expungement of the conviction (essentially erasure from the record of it).