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Right to Paternity Test and Grandparent Visitation after Father's Death

Last year the New Mexico Court of Appeals held in the case of Estate of Swift ex rel. Swift v. Bullington, 309 P. 3d 102 - NM: Court of Appeals 2013 that Ricky Swift (grandfather), who was also a legal representative of his deceased son,  had the standing to find out if a child, was the  biological son of the grandfather's deceased son. The Court of Appeals, in the same opinion, granted the grandfather grandparents' visitation rights to see the child, provided the paternity was positively established.


David Swift was the putative dad of a child born to Nicole Bullington. David Swift committed suicide six months before his son was born. The grandfather filed one case in District Court, asking the court to ascertain through paternity testing    whether David was the biological father of the child  and an another case seeking visitation privileges with the child. Ms. Bullington's response stated that the grandfather did not have the authority to bring a  paternity proceeding and contended that a paternity action does not survive the death of the father. The District Court accepted the argument denying the relief sought by the grandfather.


The grandfather appealed the decision to the New Mexico Court of Appeals which,  found that the terms of the Uniform Parentage Act ('UPA")  gave the following individuals or entities standing to maintain a proceeding to adjudicate parentage:

A. the child;

B. the mother of the child;

C. a man whose paternity of the child is to be adjudicated;

D. the support-enforcement agency;

E. an authorized adoption agency or licensed child-placing agency; or

F. a representative authorized by law to act for a person who would otherwise be entitled to maintain a proceeding but who is deceased, incapacitated or a minor.


The Court focused specifically on whether the grandfather, as the personal representative of the son's estate, had the right to bring the action. Citing the language of the UPA, the Court  found that a personal representative had the  right to bring a case, as the legal representative of the deceased parent.   Accordingly, if David Swift, as the biological father, had the right before he died to bring a parentage action, then his personal representative certainly did after he died. It noted that another state, North Dakota, whose law is governed by their own UPA, reached a similar result. It relied on the case of  In re Estate of DeLara, 2002-NMCA-004, 131 N.M. 430, 38 P.3d 198, which gave the mother of the child of a deceased putative father the right to file an action to establish paternity and obtain child support against that father, naming the personal representative of the putative father's estate as the respondent in the action. Also, since a child can bring a case to determine parentage even after he or she reaches majority (the age of 18), the UPA envisions an extraordinary statute of limitations giving litigants the right to bring such cases for a long period of time.


Once the  court found the grandfather did  have standing to bring the case, it follows that, should paternity be confirmed, the grandfather  and his wife should have visitation rights as grandparents with the child.


The attorneys at Giddens & Gatton Law, PC represent individuals involved in probate, living will and end-of-life matters in New Mexico and have extensive experience drafting wills consistent with the law of the State of New Mexico. Giddens & Gatton Law, PC is located at 10400 Academy Road N.E., Suite 350 in Albuquerque, New Mexico. Call the office at (505) 633-6298 to set up an appointment or visit the firm's website at 

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