§ 43-1409 — Notarized acknowledgment of paternity; rebuttable presumption; admissibility; rescission

Nebraska § 43-1409

• Jurisdiction: Nebraska
• Ch. 43: Infants and Juveniles

Text

The signing of a notarized acknowledgment, whether under section 43-1408.01 or otherwise, by the alleged father shall create a rebuttable presumption of paternity as against the alleged father. The signed, notarized acknowledgment is subject to the right of any signatory to rescind the acknowledgment within the earlier of (1) sixty days or (2) the date of an administrative or judicial proceeding relating to the child, including a proceeding to establish a support order in which the signatory is a party. After the rescission period a signed, notarized acknowledgment is considered a legal finding which may be challenged only on the basis of fraud, duress, or material mistake of fact with the burden of proof upon the challenger, and the legal responsibilities, including the child support obligation, of any signatory arising from the acknowledgment shall not be suspended during the challenge, except for good cause shown. Such a signed and notarized acknowledgment or a certified copy or certified reproduction thereof shall be admissible in evidence in any proceeding to establish support.

Legislative History

Source: Laws 1941, c. 81, § 9, p. 324; C.S.Supp.,1941, § 43-709; R.S.1943, § 13-109; R.S.1943, (1983), § 13-109; Laws 1994, LB 1224, § 58; Laws 1997, LB 752, § 101; Laws 1999, LB 594, § 21. Annotations: 1. Acknowledgment 2. Miscellaneous 1. Acknowledgment A father whose paternity is established by a final, voluntary acknowledgment has the same right to seek custody as the child's biological mother. Benjamin M. v. Jeri S., 307 Neb. 733, 950 N.W.2d 381 (2020). A previous paternity determination, including a properly executed and undisturbed acknowledgment, must be set aside before a third party's paternity may be considered. Tyler F. v. Sara P., 306 Neb. 397, 945 N.W.2d 502 (2020). The proper legal effect of a signed, notarized acknowledgment of paternity is a finding that the individual who signed as the father is in fact the legal father. Tyler F. v. Sara P., 306 Neb. 397, 945 N.W.2d 502 (2020). In cases where a defendant has signed a notarized acknowledgment of paternity but properly challenges the acknowledgment, due process requires that an indigent defendant be furnished appointed counsel at public expense, even if the case was not commenced as a paternity case. State on behalf of Mia G. v. Julio G., 303 Neb. 207, 927 N.W.2d 817 (2019). Where the notarized acknowledgment of paternity establishing the appellant as the child’s legal father was set aside as fraudulent and the evidence conclusively established that the appellant was not the child’s biological father, the juvenile court did not err in excluding the appellant from the juvenile proceedings. In re Interest of Kodi L., 287 Neb. 35, 840 N.W.2d 538 (2013). The provision in this section that the acknowledgment of paternity is a "legal finding" means that it legally establishes paternity in the person named in the acknowledgment as the father. Cesar C. v. Alicia L., 281 Neb. 979, 800 N.W.2d 249 (2011). In a filiation proceeding for support of a child born out of wedlock, evidence of the performance of acts described in this statute is not conclusive on the trier of fact, but constitutes relevant evidence of a biological relationship. State on behalf of J.R. v. Mendoza, 240 Neb. 149, 481 N.W.2d 165 (1992). Furnishing of support was an acknowledgment of paternity. Morimoto v. Nebraska Children's Home Society, 175 Neb. 174, 121 N.W.2d 26 (1963). While a genetic test result may be evidence of paternity and can establish a rebuttable presumption of paternity under section 43-1415, it is not in itself a legal determination of paternity in the same way as a signed and notarized acknowledgment of paternity may be under this section; as such, the four-year statute of limitations set forth in section 43-1411 applies to an action to establish paternity using genetic test results. Evan S. v. Laura H., 31 Neb. App. 750, 990 N.W.2d 27 (2023). 2. Miscellaneous This section provides that one's conduct may indicate or be evidence of paternity. Stratman v. Hagen, 221 Neb. 157, 376 N.W.2d 3 (1985). Where parents of a child born out of wedlock subsequently marry, that child is legitimate. Farmer v. Farmer, 200 Neb. 308, 263 N.W.2d 664 (1978). A child born out of wedlock living with deceased workman at time of his death was entitled to benefits under Workmen's Compensation Act. Copple v. Bowlin, 172 Neb. 467, 110 N.W.2d 117 (1961). This section defines what may be regarded as satisfactory proof in a paternity action. Timmerman v. Timmerman, 163 Neb. 704, 81 N.W.2d 135 (1957).