In re Interest of Kodi L.

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In re Interest of Kodi L.

Caselaw No.
287 Neb. 35
Filed on
Friday, December 13, 2013

SUMMARY: Excluding the party from the proceedings was proper where his notarized acknowledgement of paternity was rebutted by evidence and found to be fraudulent and there was no request to participate on other grounds.

Kodi, DOB 8/12, was born to Shawntel. Shortly after birth, Shawntel and Michael signed a sworn, notarized acknowledgement of paternity naming Michael as Kodi’s biological father. Michael lived with Shawntel and Kodi for several months after his birth. On December 5, 2012, Kodi was removed from the home due to Shawntel’s use and sale of methamphetamine. In the amended petition, Michael was identified as Kodi’s father. On February 15, 2013, Kodi’s guardian ad litem moved to exclude Michael from the proceedings on the basis that the acknowledgement of paternity was fraudulent. On February 21, 2013, the court held a hearing on the motion. Evidence established that both Michael and Shawntel admitted to the caseworker that Michael was not Kodi’s biological father, that they knew such when they signed the acknowledgement of paternity, and that they signed it because they wanted Michael to be Kodi’s father and not the biological dad. A DNA test also established a 0% probability that Michael was Kodi’s father. After the hearing, the court found that the evidence was sufficient to rebut the presumption of paternity from the acknowledgement, that the acknowledgement was fraudulent and that Michael should be excluded and dismissed from the proceedings. Michael appealed.

The Nebraska Supreme Court affirmed the court’s order. It noted a notarized acknowledgement of paternity established a rebuttable presumption of paternity that could be overcome by proof of fraud, duress or material mistake of fact, as provided by N.R.S. 43-1409. Because Michael did not directly challenge the court’s decision to set aside the acknowledgement of paternity on the basis of fraud, the Supreme Court did not review that decision and only addressed Michael’s exclusion from the proceedings. However, the juvenile court had noted that it was excluding him only to the extent he was not Kodi’s father and that Michael never formally requested to participate on other grounds, such as being Kodi’s custodian and caregiver. Therefore, the Supreme Court didn’t consider his argument and instead found no error in the juvenile court excluding Michael from the proceedings after setting aside the acknowledgement of paternity, which was the sole basis for involvement.