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Adoption - Fraud on the Probate Court

C.Z. and J.Z. v. B.G., [Ms. 2170976, Sept. 21, 2018] __ So. 3d __ (Ala. Civ. App. 2018). This decision by Judge Moore affirms the Elmore Probate Court’s judgment setting aside a judgment of adoption and dismissing the petition for adoption on the ground that the probate court’s jurisdiction had been procured by a fraud on the court.

At a hearing regarding adoption of the child, the mother swore to the probate court under oath that T.B. was the biological father of the child. Ms. *7. B.G. subsequently filed an objection to the judgment of adoption, asserting that he was the biological father of the child. Ms. *3. Genetic testing confirmed that B.G. was in fact the father of the child. Ibid.

The probate court set aside the decree of adoption 38 days after its entry. Ms. *12. On appeal, the prospective adoptive parents argued that the probate court lacked jurisdiction to set aside the judgment of adoption. Ibid. The court disagreed, holding that “[a] fraud upon a probate court is committed when a litigant misrepresents and conceals facts essential to the jurisdiction of the probate court.” Ms. *15. Because a probate court only obtains jurisdiction to enter a final judgment of adoption by obtaining all necessary consents, the probate court properly set aside the judgment based upon fraud on the court supported by the court’s determination that the mother had misrepresented that T.B. was the biological father of the child. Ibid.

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