dissenting.
I dissent. The wrong public policy has been applied by the Majority. Their public policy rationale of "stability in legally-established relationships" and "avoidance of disruption years later" (Maj. at 1279) is embodied in the statute of limitations provisions of Ind.Code 81-6-6.1-6.
The right public policy is found in Ind. Code 31-6-6.1. The 1979 enactment of the juvenile code permitted a man alleging himself to be a child's father to bring an action to establish paternity, without reference to his or the mother's marital status. Ind. Code 81-6-6.1-2(a)(2).
Too, all parties stipulated that W.R. is S.R.I.'s biological father.1 W.R. is willing and able to provide emotional and financial support for S.R.I. For years, W.R. has faithfully paid support for S.R.I. in accordance with an agreement between him and H.I., the mother of S.R.I. Record, p. 15. Additionally, it is clear from the record that W.R. has enjoyed a "continuing relationship" with S.R.I. Record, p. 22. As the Majority concludes and I agree, the parties waived a potential res judicata defense.2
*1281Moreover, the statute of limitations was tolled by W.R.'s voluntary provision of child support to S.R.I. during the five years preceding the filing of the petition.
Even prior to the enactment of I.C. 31-6-6.1, this court held that the action of an alleged father seeking to establish his paternity could not be summarily dismissed on public policy grounds. A.B. v. C.D., (1971), 150 Ind.App. 535, 277 N.E.2d 599, trans. denied. A.B. sought to be declared the father of a child born during his wife's first marriage (to C.D.). The dissolution decree dissolving the first marriage provided for the custody of the child as a "child of the marriage." The trial court entered summary judgment for the first husband, finding that public policy would not permit the action of the second husband. This court reversed the grant of summary judgment:
[I)n the few instances coming to our attention in which an adulterer has sought a declaration of his illegitimate paternity of a child presumptively the legitimate child of another man, there has been no mention of the possibility of any public policy which would bar him.
Id. at 556; 277 N.E.2d at 614.
Interestingly, both before and after the enactment of LC. 31-6-6.1, this court embraced no "public policy" prohibition of a married mother's action to establish the paternity of her child in a man other than her husband, although the presumably legitimate child was therein declared illegitimate. H.W.K. v. M.A.G. (1982), Ind.App., 426 N.E.2d 129; Crawford v. Beatrice (1952), 122 Ind.App. 98, 102 N.E.2d 915.
The majority discusses Fairrow v. Fairrow (1990), Ind., 559 N.E.2d 597 but distinguishes the instant case in that it: "did not involve a support issue, W.R. was never married to S.R.I's mother, and the only medical evidence was various blood test results attached to the paternity petition which merely excluded V.W.I. as the biological father of S.R.I." [Slip op. at 4]
The instant case does involve a support issue, in that W.R. is willing and able to provide both emotional and financial support to S.R.I. He also seeks to provide S.R.I. the security of a legally-recognized relationship with his undisputed biological father.
Our supreme court stated in Fairrow, supra: "there is a substantial public policy, namely justice, which disfavors a support order against a husband who is not the child's father." Id. at 600. Conversely, there is a substantial public policy which favors a support order against a man who is a child's father. A hollow adherence to a presumption of legitimacy in this matter would both continue an unjust support order against V.W.I. (excluded by paternity testing as S.R.I.'s biological father) and deprive S.R.I. of the security, companionship and financial support willingly offered by his biological father. I would reverse the judgment of the trial court.
. The blood test results attached to W.R.'s petition reflect that the probability of W.R.'s paternity of S.RI. is 99.58%, as compared to an untested, unrelated man of the North American Caucasian population. Record, p. 6.
. A plea of res judicata would be unsuccessful, as the petitioner herein was not a party to the dissolution action. See also In Re Marriage of Moser (1984), Ind.App., 469 N.E.2d 762 (res judicata did not preclude action by alleged father who had divorced mother; the dissolution de*1281cree of the parties recited that no children were born of the marriage).