IN RE PATERNITY OF S.R.I.

SHEPARD, Chief Justice.

Appellant W.R. claims S.R.I. is his son. No one disputes his contention. He would like to establish paternity and assume the legal obligation of supporting S.R.I., a responsibility he has undertaken voluntarily for several years. The courts thus far have not allowed it.

The facts reveal that appellees H.I. and V.W.I. were married in 1965. H.I. bore a son, S.R.I., in November 1984. In 1986, H.I. and V.W.I. divorced. In 1990, W.R. filed a petition to establish the paternity of S.R.I. His petition stated that he had been living with H.I., acting in loco parentis to S.R.I., and that he wished to continue supporting the child. Attached to W.R.'s petition were an affidavit acknowledging paternity, and results of blood tests purporting to show that W.R. was indeed S.R.I.'s biological father.1

At an initial hearing on March 15, 1991, the trial court denied W.R.'s petition without commenting about the evidence contained in the affidavits, ruling instead that the question of S.I.'s paternity was res judicata because the dissolution decree for V.W.I. and H.I.'s 1986 divorce found S.R.I. to be a child of the marriage.2 The trial court found res judicata despite the fact that H.I. and V.W.I. expressly waived the defense at the hearing on the paternity petition.3 A divided Court of Appeals concluded that this finding of res judicata was error, but it affirmed the trial court on public policy grounds, citing the need for stability in the relationships between children and parents. In Re Paternity of S.R.I. (1992), Ind. App., 588 N.E.2d 1278. Said the majority:

Id. at 1279-80.

I. Public Policy

We agree with the Court of Appeals majority that stability and finality are significant objectives to be served when deciding the status of children of divorce. On the other hand, there is a substantial public policy in correctly identifying parents and their offspring. Proper identification of parents and child should prove to be in the best interests of the child for medical or psychological reasons. It also plays a role in the just determination of child support; we have already declared that public policy disfavors a support order against a man who is not the child's father. Fairrow v. Fairrow (1990), Ind., 559 N.E.2d 597. Conversely, as Judge Staton noted in his dissent, "there is a substantial public policy which favors a support order against a man who is a child's father." In Re Paternity of S.R.I., 588 N.E.2d at 1281 (Staton, J., dissenting). This is essentially what W.R. seeks, to take responsibility for a child whom he apparently fathered. This responsibility includes financial support, of course, but both parent and child have an interest in the more personal aspects of the relationship — custody, visitation, supervision, and the like.

Indiana Code Ann. § 31-6-6.1-2 (West Supp. 1992) allows a man alleging that he is a child's biological father to file a paternity action. This provision makes no reference to the marital status of the mother. Thus a putative father may establish paternity without regard to the mother's marital status, so long as the petition is timely filed. See Ind. Code Ann. § 31-6-6.1-6 (West Supp. 1992). Of course, the putative father must put forth evidence that is "direct, clear, and convincing" to rebut the presumption that a child born during marriage is legitimate. Fairrow, 559 N.E.2d at 600.

Under these unusual circumstances, W.R. ought to have his day in court and an opportunity to present his evidence. Whether a cause of action like this one would be permitted while the mother's marriage is intact is not presented in this case, and we do not decide that question.

II. Res Judicata

As for the trial court's finding of res judicata, although we agree with the Court of Appeals that waiver disposes of the issue, we observe that the doctrine cannot control in a case such as this where the petitioner was not a party to the dissolution action. See 17 I.L.E. Judgment §§ 380, 417 (1959).4 Furthermore, even if the dissolution decree found S.R.I. to be a child of the marriage of H.I. and V.W.I. (and we can only surmise from this record that if it so stated), it would be error to find res judicata as to paternity based on the order alone. As the Court of Appeals said in A.B. v. C.D. (1971), 150 Ind.App. 535, 560, 277 N.E.2d 599, 616:

In other words, dissolution findings are binding on the parties to the dissolution. S.R.I. was not a party to the dissolution. Thus, in the face of W.R.'s colorable claim of paternity, the dissolution decree amounts to no more than a finding that S.R.I. was born to H.I. during the marriage. It is not a procedural bar to W.R.'s effort to establish paternity.

III. Guardian Ad Litem

Finally, the Court of Appeals majority in the instant case noted with justification that it found it "disturbing that a guardian ad litem was not appointed in this case for the child, the most interested party in the entire proceedings." In Re Paternity of S.R.I., 588 N.E.2d at 1280 n. 2. We agree with the Court of Appeals that it would be appropriate in this unusual case. "Courts are charged with the duty of protecting the rights of infants in controversies over which they acquire jurisdiction, and guardians ad litem serve as their agents in discharge of this duty." Gibbs v. Potter (1906), 166 Ind. 471, 475, 77 N.E. 942, 943-44. See also Ind. Code Ann. § 34-2-3-1 (West 1983). On remand, the trial court should appoint a guardian ad litem for S.R.I. to ensure that his interests are properly represented at the paternity hearing.

We reverse the judgment of the trial court and remand for a hearing on the merits of W.R.'s petition.

DeBRULER, GIVAN, DICKSON and KRAHULIK, JJ., concur.