Ark. Code Ann. § 9-10-104 (2020)

Research References

Ark. L. Notes.

Flaccus, A Grab Bag of Recent Arkansas Cases, 1999 Ark. L. Notes 25.

Ark. L. Rev.

Brittany Horn, Case Note: Who's Your Daddy? State v. Perry and Its Impact on Paternity and the Rights of Adjudicated Fathers in Arkansas, 66 Ark. L. Rev. 1059 (2013).

U. Ark. Little Rock L.J.

Legislative Survey, Family Law, 4 U. Ark. Little Rock L.J. 595.

Fifteenth Annual Survey of Arkansas Law, 15 U. Ark. Little Rock L.J. 427.

U. Ark. Little Rock L. Rev.

Annual Survey of Caselaw, Family Law, 24 U. Ark. Little Rock L. Rev. 1021.

Note: Family Law—Putative Fathers and the Presumption of Legitimacy—Adams and the Forbidden Fruit: Clashes Between the Presumption of Legitimacy and the Rights of Putative Fathers in Arkansas, 25 U. Ark. Little Rock L. Rev. 369.

Case Notes

In General.

It is not against the public policy of this state to allow a third party to attempt to illegitimize a child which was conceived, but not born during marriage. Willmon v. Hunter, 297 Ark. 358, 761 S.W.2d 924 (1988).

Burden of Proof.

In a paternity proceeding brought against a living putative father, even in the absence of blood testing, the mother's burden of proof is a mere preponderance of the evidence, as the proceeding is civil in nature. Erwin L.D. v. Myla Jean L., 41 Ark. App. 16, 847 S.W.2d 45 (1993).

Defenses.

A mother's agreement or assurances that she would not pursue a paternity action to request support cannot validly be interposed by a putative father as a defense. Erwin L.D. v. Myla Jean L., 41 Ark. App. 16, 847 S.W.2d 45 (1993).

Misrepresentation concerning the use of contraceptives is not a defense to paternity; to permit this defense would result in the denial of support to innocent children whom the law was designed to protect. Erwin L.D. v. Myla Jean L., 41 Ark. App. 16, 847 S.W.2d 45 (1993).

Adult child's complaint against her alleged father's estate to establish paternity under this section was barred by res judicata based on her mother's action brought under former § 34-702 in 1980, although the child did not seek child support, and the prior action was dismissed for the mother's failure to appear at a hearing. Mathis v. Estate of McSpadden, 2012 Ark. App. 599 (2012).

Presumptions.

Neither Lord Mansfield's Rule, which provides that the declarations of a father or mother cannot be admitted to illegitimize the issue born after marriage, nor the presumption of legitimacy of children born during the wedlock of two persons, apply where the child is born out of wedlock. Dunn v. Davis, 291 Ark. 492, 725 S.W.2d 853 (1987).

Presumption of legitimacy of a child conceived, but not born, during marriage, is rebuttable. Willmon v. Hunter, 297 Ark. 358, 761 S.W.2d 924 (1988).

Chancellor did not err in ordering a paternity test pursuant to this section, as public policy does not forbid the rebuttal of the presumption of legitimacy by paternity testing. Golden v. Golden, 57 Ark. App. 143, 942 S.W.2d 282 (1997).

Requirement that an action be filed and a condition satisfied within 180 days did not violate a purported beneficiary's federal constitutional equal protection rights or due process rights because she had no right to bring a paternity action on her own behalf since she was a person for whom paternity was presumed. The purported beneficiary was seeking to recover as a pretermitted heir. Bell v. McDonald, 2014 Ark. 75, 432 S.W.3d 18 (2014).

Procedure.

Trial court erred in dismissing a paternity complaint on the basis of collateral estoppel or res judicata when the alleged biological father of the child was not a party, and was not in privy to a party, in an earlier divorce decree proclaiming the mother's husband to be the father of the child, and the matter of paternity had not been fully or fairly litigated in the earlier divorce action. State Office of Child Support Enforcement v. Willis, 347 Ark. 6, 59 S.W.3d 438 (2001).

Standing.

A child conceived and born of a marriage, and thus presumed to be the child of the marital partners, has no standing to bring a paternity action. Hall v. Freeman, 327 Ark. 148, 936 S.W.2d 761 (1997).

The presumption of legitimacy of a child born during marriage is the presumption to which reference is made in subdivision (3) of this section; the General Assembly has seen fit to preserve it as a bar to an action by a child born during a marriage. Hall v. Freeman, 327 Ark. 148, 936 S.W.2d 761 (1997).

Because the legislature was presumed to have known of prior Supreme Court decisions when it amended this section, a putative father had standing to bring an action to determine the paternity of a child born to a woman married to another. R.N. v. J.M., 347 Ark. 203, 61 S.W.3d 149 (2001).

Father who moved to annul a 1966 adoption, on grounds the father was fraudulently induced into believing the child was the father's biological child, was adjudicated to be the biological father in the adoption decree and did not fit within the statutorily-defined group of individuals upon whom standing was conferred to challenge paternity; thus, the trial court properly denied the father's request for paternity testing. McAdams v. McAdams, 353 Ark. 494, 109 S.W.3d 649 (2003).

Father's argument that custodian of the child did not have standing to bring a paternity action was irrelevant as the plaintiff listed in all the pleadings was the Office of Child Support Enforcement (OCSE), and the OCSE had the authority under this section to bring a paternity action. Watt v. Office of Child Support Enforcement, 364 Ark. 236, 217 S.W.3d 785 (2005).

Cited: Roque v. Frederick, 272 Ark. 392, 614 S.W.2d 667 (1981); Fuller v. Robinson, 279 Ark. 252, 650 S.W.2d 585 (1983); In re S.J.B., 294 Ark. 598, 745 S.W.2d 606 (1988); Department of Human Servs. ex rel. Davis v. Seamster, 36 Ark. App. 202, 820 S.W.2d 298 (1991); State Office of Child Support Enforcement v. Harnage, 322 Ark. 461, 910 S.W.2d 207 (1995).