The opinion
Eugene Hunt, Judge, dissenting. I disagree with the majority’s opinion. The opinion ignores the fact that Carlos Hall was not present and did not testify at the hearing wherein paternity testing was ordered. Carlos Hall filed his petition for paternity testing on December 27, 2006. In paragraph three of that petition, Hall stated: “That the Plaintiff and Defendant engaged in a relationship which led to the five birth of one (1) child, namely, Carlos Deshaun Hall, whose date ofbirth is November 16, 2002.” In paragraph six of the same petition, Hall stated: “That the Plaintiff prays for an order for paternity testing to determine if he is the biological father of the minor child, Carlos Deshaun Hall.” A hearing was held on May 3, 2007, and the parties were ordered to undergo paternity testing. Based on the abstract of the record, Carlos Hall was not present at this hearing.
Arkansas Code Annotated section 9-10-115(d), provides, inter alia, that:
(1) Beyond the sixty-day period or other limitation set forth in subsection (c) of this section, a person may challenge a paternity establishment pursuant to a voluntary acknowledgment of paternity or an order based on an acknowledgment of paternity only upon an allegation of fraud, duress, or material mistake of fact.
(2) The burden of proof shall be upon the person challenging the establishment of paternity.
Based on the plain language of the statute, the burden of proof was on Carlos Hall to prove that he was entitled to a paternity test. Hall was only required to testify that he initially believed that he was the father of the minor child but later decided his belief was erroneous. He did not do that. The trial court ordered the parties to submit to paternity testing although Carlos Hall was not present to offer any testimony in support of his petition that also contained a declaration that Carlos Hall was the father of Carlos Deshaun Hall. Carlos Hall was not entitled to a paternity test because he failed to meet the threshold requirement set forth in section 9-10-115 (d)(2). The trial court committed error by ordering the paternity test. I respectfully dissent.