Legal determination of paternity set aside; when; guardian ad litem; court orders.
An individual may file a complaint for relief and the court may set aside a final judgment, court order, administrative order, obligation to pay child support, or any other legal determination of paternity if a scientifically reliable genetic test performed in accordance with sections 43-1401 to 43-1418 establishes the exclusion of the individual named as a father in the legal determination. The court shall appoint a guardian ad litem to represent the interest of the child. The filing party shall pay the costs of such test. A court that sets aside a determination of paternity in accordance with this section shall order completion of a new birth record and may order any other appropriate relief, including setting aside an obligation to pay child support. No support order may be retroactively modified, but may be modified with respect to any period during which there is a pending complaint for relief from a determination of paternity under this section, but only from the date that notice of the complaint was served on the nonfiling party. A court shall not grant relief from determination of paternity if the individual named as father (1) completed a notarized acknowledgment of paternity pursuant to section 43-1408.01, (2) adopted the child, or (3) knew that the child was conceived through artificial insemination.
Source:Laws 2008, LB1014, § 47.
This section permits, but does not require, a court to set aside a child support obligation when paternity has been disestablished. It does not authorize any change in child support without such disestablishment of paternity. Stacy M. v. Jason M., 290 Neb. 141, 858 N.W.2d 852 (2015).
The question of whether a paternity decree should be set aside must be determined under this section, applicable to setting aside a judgment of paternity, and not under the provisions of section 25-2001, applicable to vacating judgments in general. Jeffrey B. v. Amy L., 283 Neb. 940, 814 N.W.2d 737 (2012).
This section gives the court discretion to determine whether disestablishment of paternity is appropriate in light of both the adjudicated father's interests and the best interests of the child, and should weigh factors such as (1) the child's age, (2) the length of time since the establishment of paternity, (3) the previous relationship between the child and the established father, and (4) the possibility that the child could benefit from establishing the child's actual paternity. Alisha C. v. Jeremy C., 283 Neb. 340, 808 N.W.2d 875 (2012).
This section is applicable to both adjudicated fathers who were married to the child's mother and those who were not. Alisha C. v. Jeremy C., 283 Neb. 340, 808 N.W.2d 875 (2012).
This section overrides res judicata principles and allows, in limited circumstances, an adjudicated father to disestablish a prior, final paternity determination based on genetic evidence that the adjudicated father is not the biological father. Alisha C. v. Jeremy C., 283 Neb. 340, 808 N.W.2d 875 (2012).