MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION FOR PATERNITY TESTING

ELPEDIO VITALE, J.

An evidentiary hearing regarding plaintiff's Motion for Paternity Testing, filed June 7, 2010, was held on August 2, 2010. The plaintiff and defendant testified. The guardian ad litem for the minor child, Attorney William R. Bowles, was also present. The minor child at issue, [redacted], has a date of birth of [redacted].

The plaintiff's Motion for Paternity Testing seeks said testing pursuant to C.G.S. § 46b-172. Although the plaintiff and the defendant signed a notarized "Acknowledgment of Paternity," plaintiff's exhibit 1, on May 26, 2006, the plaintiff claims in her motion that said acknowledgment was the product of "mistake and duress." During the hearing on said motion, the plaintiff withdrew her claim of "mistake," and relies now solely on her claim of "duress." The defendant objects to the motion for testing and asserts the absence of duress. Thus the only issue before the court is whether the "Acknowledgment of Paternity" was the product of "duress," as defined by our law.

In reaching its conclusions, the court has fairly and impartially' considered all the evidence presented, evaluated the credibility of the witnesses, assessed the weight, if any, to be given specific evidence, measured the probative force of conflicting evidence, applied relevant statutory criteria and relevant case law, and has drawn such inferences from the evidence or facts established by the evidence it deems reasonable and logical.

C.G.S. § 46b-172(B) states that "a written affirmation of paternity executed and sworn to by the mother of the child shall have the same force and effect as a judgment of the Superior Court." Subsection (2) of § 46b-172 provides that "the mother and the acknowledged father shall have the right to rescind such affirmation or acknowledgment in writing within the earlier of sixty days . . ."

The acknowledgment of paternity was signed in May of 2006, well past the time for rescission under the statute. Although the plaintiff has cast her request in the guise of a Motion for Paternity, in essence she is requesting that the stipulated judgment of paternity be re-opened.

"A motion to open a stipulated judgment, when grounded on mistake or duress, necessarily requires the court to make a factual determination before it can exercise its discretion to grant or deny the motion . . . In making its factual determination whether a stipulated judgment should be opened, the court must inquire into whether the decree itself was obtained by fraud, duress, accident or mistake . . . A stipulated judgment . . . is not voidable on the ground that it was accepted with reluctance, so long as its procurement was not the result of fraud, duress, or mistake . . . To conclude that a stipulated judgment resulted from duress, the finder of fact must determine that the misconduct of one party induced the party seeking to avoid the stipulated judgment to manifest assent thereto, not as an exercise of that party's free will but because that party had no reasonable alternative in light of the circumstances as that party perceived them to be." (Citations omitted; internal quotation marks omitted.) Jenks v. Jenks, 232 Conn. 750, 753, 657 A.2d 1107 (1995). "For a party to demonstrate duress, it must prove [1] a wrongful act or threat, [2] that left the victim no reasonable alternative, and [3] to which the victim in fact acceded, and that [4] the resulting transaction was unfair to the victim." (Internal quotation omitted.) Cox v. Burdick, 98 Conn.App. 167, 177-78 (2006); cert. denied 280 Conn. 951 (2006). "The wrongful conduct at issue could take virtually any form, but must induce a fearful state of mind in the other party, which makes it impossible for the party to exercise his own free will." In Re Travis R., 80 Conn.App. 777, 782 (2004), cert. denied, 268 Conn. 904 (2004).

The court concludes from Jenks and Cox, supra, that duress in this context means that one party must engage in misconduct to induce the other party to assent to the judgment. The plaintiff's mental condition alone, therefore, cannot support a claim of duress. Although the plaintiff admits that plaintiff's exhibit 1 was signed by her on May 26, 2006, and contains the affirmation that her acknowledgment of paternity was "freely and voluntarily" provided, she asserts that she had "no option" because "he [the defendant] was there" and she was "scared to raise my daughter alone." In the fall of 2005, plaintiff engaged in what she characterized as non-consensual sexual relations with a third party a single time during the time she was also engaged in consensual sexual relations with the defendant. The plaintiff was concerned that this third party "would not be around" and that the defendant "would leave" if he found out that the third party was the father.

The defendant has been the child's psychological father for the past four years. The plaintiff's motion was only filed following the end of her relationship with the defendant, and her subsequent co-habitation with James DiPietro. The parties do not effectively communicate with regard to visitation and custody issues concerning the minor child.

Pursuant to the applicable law as applied to the facts of the present case, the plaintiff has failed to satisfy her burden of proof to demonstrate that she was under duress at the time she signed the acknowledgment of paternity. There is insufficient evidence that the defendant engaged in misconduct that induced her to sign the acknowledgment of paternity, or that made it impossible for her to exercise her own free will. For the foregoing reasons, the Motion for Paternity Testing is denied.