(dissenting)
I respectfully dissent. I believe the district court has a duty to examine affidavits submitted under Minn.Stat. § 257.62, subd. 1 (2000), and to examine other factors and circumstances in order to determine in its discretion whether there is a “reasonable possibility” that the requisite sexual contact occurred between the parties. I believe that the supreme court acknowledged this discretion in Witso and characterized it as a judicial safeguard against frivolous claims of paternity. Witso v. Overby, 627 N.W.2d 63, 69 (Minn.2001).
The district court here determined that appellant failed to set forth facts to establish a reasonable possibility of the requisite sexual contact between the parties. While the district court is required to assume the truth of an affidavit, it was faced with a type of credibility determination because of respondent’s denial of that contact. Cf. Oreck v. Harvey Homes, Inc., 602 N.W.2d 424, 429 (Minn.App.1999), review denied (Minn. Jan. 25, 2000). For a number of reasons, the district court found respondent more credible and chose to reject appellant’s claim that he and respondent had sexual contact on January 27, 1998.
In particular, the district court found that respondent denied any sexual activity with appellant during the possible conception period and that she “has never wavered in her claim that [appellant] is not the father of this child,” as evidenced by her OFP petition on which she chose not to mark the box entitled “have a child in common.” The court further found that appellant’s “competency as a witness * * * is subject to impeachment not only by his prior inconsistent sworn statement, but his history as a convicted felon.” The court finally took notice of the two OFP’s and found that appellant “has demonstrated a history of harassing and abusing” respondent and that “[t]here is a real risk of [appellant] using the legal system to continue to harass and frighten [respondent].” These findings demonstrate that the district court properly exercised its discretion when it chose to disbelieve appellant’s claim that he and respondent had sexual relations during the possible period of conception.
Because the district court properly examined the record and exercised its discretion, I would affirm its denial of appellant’s motion to compel blood tests under Minn. Stat. § 257.62, subd. 1 (2000).