Divorce Law Journal

Time Magazine Reports Ky Bio-Dad Decision And Putative Father's Plan To Go To U.S. Supreme Court

The story is online here. Some quotes: Last week, in a decision that underscores the tense relationship between science and law, a divided Kentucky Supreme Court told Rhoades that he could not press his paternity claim, no matter what evidence of fatherhood he might have, because J.N.R. was, and remains, a married woman. When it comes to defining fatherhood in the Bluegrass State, where Ricketts and her husband now live, the marital "I do" mean a lot more than DNA.

The report continues, But unlike the past, such allegations these days are often backed by science, introducing certainty where none before existed. As of a result, the prohibition on third-party challenges to paternity has begun to weaken. By 2000, at least 33 states had adopted rules that allowed challenges by fathers with genetic proof of their paternity, usually restricting such efforts to the first two years of a child's life. The advent of DNA testing has tread a similarly disruptive course in other areas of law, including criminal cases where exonerations once thought impossible are becoming routine. A few states have even begun allowing ex-husbands to present DNA evidence that they were duped by cheating spouses to avoid child support obligations.

What's next? Rhoades said he plans to appeal to the U.S. Supreme Court on constitutional grounds. But he faces long odds there, given that the high court has already ruled once, in 1989, on the same issue, upholding California's explicit bar against paternity challenges like his. That decision too was divided and contentious. The biological father in that case did not get to see his daughter till she had turned 21. "Well, obviously I am not going to give up and say, 'Oh well I lost,'" Rhoades says. "I believe I have a fundamental right to be in my son's life." The trouble is: nature's law isn't the law of the land.

Comments To The Morning After Bio-Dads Lose Big

Comments tend to get lost on this blog. I thought the following exchange was interesting enough to post separately:
Ms. Kates...I respectfully disagree with your analysis as you neglect to consider that individuals under the U.S. Constitution are afforded the right to due process, which I've been denied in this case. In addition, the U.S. Supreme Court has recognized that when there is a relationship between a parent and child it is to be preserved and protected. In the case at issue, I am not a stranger to my son as I had a relationship for the first few months of his young life. Furthermore, the Supreme Court have recognized that natural parents have a fundamental liberty interest in the care, custody, and management of their children that does not evaporate, Santosky v Kramer. There are procedural safeguards when someone tries to terminate a natural parents rights without a hearing, parents and childrens' rights are fundamental in regards to termination of parental rights. Of course you are arguing that no man who is not married to a woman should have any rights. If I've understood your position correctly. Under the recent KY Supreme CT ruling if a married man gets a single woman pregnant and takes possession of the child, as long as his wife and him do not dissolve their marriage the biological mother has no parental rights. In theory I believe this would be correct, but of course we know that would never happen because it goes against common sense. Regardless, we will just have to see how the U.S. Supreme Court feels about the rights of a biological parent who happens to be a parent. I'm one of many who believe the truth does matter and should still play a role in justice.
Posted by: James Rhoades

We share DNA with all living things, yet even some of our very close relatives, such as siblings and grandparents, are not assumed to have automatic legal familial rights. We also recognize parentage that arises from other than biology, e.g. adoption, surrogacy, and gamete donation. We also have institutionalized marriage, which at its inception is the formation of nonbiological "family" which is not dependent at all upon the existence of children before the couple is recognized to be "family" to each other.
In no other area of the law do we recognize property rights in biological body parts, or following body parts that have left the body, whether cells from which vaccines have been made, or hair, or donated organs. In order to consider sperm and ova differently, we would have to make an arbitrary assumption about these half-cells that they are in some way different. Mostly, that assumption is not founded in reason, but in the premises of some (and not all) cultural and religious traditions.
I would argue that the United States constitution recognizes the liberty interests of actual families, families in fact, families that still would exist as coresidential and ocmmitted social units in the absence of law -- and not the asserted property rights of individuals in and to the products of their discarded gametes.
I think it is an unwarranted presumption that sperm donors (or egg donors) automatically, and without more, have emotional attachments to other human beings they may have never met. We may inculcate some kind of real emotional issue for individuals in how they view their own genes and so forth, but this idea to me is what is the "property rights" (posssessory) versus "relationship" perspective.
I would suggest instead that the government's intrusion into actual marriages and functioning families in order to elevate this pretense into an artificial notion of "family" founded on biology actually denigrates exactly what it is that the constitution recognizes and respects as the family.
"Family" is not DNA, a material so widely shared that the differences between members of an entire species are miniscule. Rather, it is the coresident social unit of individuals whose relationship "bonds" are evidenced in the way they live, by their actual emotional attachments born out of their habitual association with and knowledge of each other over time, and by their mutual support of and involvement with each other in a real family group -- the kind that would exist even in the absence of law... or paternity testing technology.
Posted by: Elizabeth J. Kates, Esq.

Ms. Kates you can't be serious? So you think biological fathers should have no rights and just because they share a genetic bond with their children the law should suppose they don't carry affection towards their children? I know my viewpoint is skewed because the case involves my son who I care deeply about but I think your viewpoint is ridiculous. Surely you would never promote your interpretation regarding a biological mother? You have opinion makes children a piece of property and be damned with their best interest. And let's throw Constitutional rights out the window too if a man was a child out of wedlock and petitions for his rights as a father. In all due respect, the Kentucky Supremes were totally inconsistent in the majority opinion. Cunningham had assumed biological fathers have a right to custody and visitation even without having their parentage ajudicated in his Hinshaw v Hinshaw opinion when he talked about Mrs. Hinshaw seeking to terminate the biological fathers rights so Hinshaw could have adopted the child. Seems kind of weird that Justice Cunningham would write that one biological father in one paternity case has rights while writing another opinion saying this biological father has no rights. Shouldn't Cunningham be a little more consistent?
James Rhoades Real Father in Recent KY Sup Ct decision
Posted by: James Rhoades

The Kentucky decision was correct, and I am glad to see it. With the advent fairly recently of DNA testing, we have forgot that providing reproductive gametes is not necessarily what determines legal parentage, or is in fact sufficient to presume affection, responsibility, or enduring relationship ties. It is unfortunate that in this one area of the law, largely confused by religious and political agendas, and consequent erroneous precepts underlying child support theory, that even as we embrace broader definitions of "family" in some respects, so many legal scholars have simultaneously moved in the inconsistent direction of making unwarranted assumptions that equate legal rights and responsibilities with a tracing of bodily effluence.
Elizabeth Kates

JNR and JFR v. Honorable Joseph O’Reilly, Judge, Jefferson Family Court

JNR and JFR v. Honorable Joseph O’Reilly, Judge, Jefferson Family Court
and JRG, Real Party in Interest, ___ S.W.3d ___ (Ky. 2008)
2007-SC-000175-MR

JGR (James) filed a custody and support petition, alleging DNA confirmed him to be the biological father of a child who lived with his mother, JNR (Julia), who was married to JFR (Jonathan). After the family court refused to dismiss the petition, Julia and Jonathan were denied a writ of prohibition in the Court of Appeals and appealed to the Kentucky Supreme Court. The Supreme Court ruled 4 to 3 in favor of Julia and Jonathan in five separate opinions.

The opinion of the Court by Justice Minton in which Chief Justice Lambert concurred held that the family court was without subject matter jurisdiction to determine paternity claims brought by a biological father where there is no evidence or allegation that the marital relationship ceased ten months before the child’s birth. Because a showing of irreparable injury and lack of adequate remedy by appeal is not required for issuance of a writ of prohibition when the trial court is acting outside its jurisdiction, the Court of Appeals erred in denying the writ of prohibition. Although the parties debated the due process and equal protection rights of the unmarried biological father, the constitutional claim was not perfected by serving a challenge on Kentucky’s Attorney General.

Justices Cunningham and Scott concurred in the result only, and each wrote separate opinions in which the other joined. Justice Scott opined that only the parties to a marriage can challenge the presumption of legitimacy under KRS 406.011 and there is no constitutional right of a “stranger to the marriage” to assert paternity under such circumstances. Justice Cunningham wrote that this case is squarely about the legal status of marriage and about a married couple’s right to be left alone from the allegations of an interloper asserting the claim of fatherhood.

Justice Abramson dissented by an opinion in which Justice Schroder joined and wrote that the Supreme Court erred grievously in its holding. She distinguishes “marital relations,” the sexual aspects of marriage with the “marital relationship,” the broader aspect of emotional, physical, social, and moral dimensions characterized by a monogamous bond. She believed the “marital relationship between the husband and wife” referenced in KRS 406.011 can certainly be said to “cease” when the wife is having sexual intercourse with another man. While the marriage may still exist as a matter of law and sex may still occur between the spouses on occasion, the monogamous “marital relationship” ceases when the third party enters the picture. She focuses on the words actually used by the legislature as the operative concern and notes that it also makes common sense. A child born to a married woman and a lover who is not her husband is indeed born out of wedlock. The evidence which would show a cessation of the marital relations would need to be assessed on a case by case basis but would encompass the situation, as here, where the putative father has had a visitation with the child through the mother’s cooperation and has secured DNA testing establishing biological fatherhood.

Justice Abramson challenges the majority belief that its holding protects the integrity of the family. If a mother alone can harbor the secret of paternity so long as it serves her purposes, there is no societal disincentive to conceiving a child outside the bounds of marriage. Secondly, she notes that there are tens of thousands of blended families in Kentucky who cope with shared parenting. The only variable in this case is that the only child who has a parent outside the home is the younger as opposed to the older child or children. Finally, she notes the medical and psychological consequences to a child who should have a right to know his parentage.

Justice Noble dissented by separate opinion writing that the majority confused a statutory element of proof as a requirement for standing. One does not have to prove an element in order to have the right to plead it. She believes the majority jumped over the hurdles of proper pleading and procedure to the evidentiary merits of the case, noting that even on writ procedures from the Court of Appeals, the Kentucky Supreme Court is not the fact finder. She wrote that this case is one example of evolving legal questions that arise when a new type of court is instituted. Under KRS 406.021, a putative father has standing. Once a party has standing, then certain elements of proof must be established to rebut the presumption that a child born during the marriage is the child of the husband. One does not have to prove an element of a claim to have the right to plead it. She opined that James clearly has a due process right to at least be heard, because he does have standing.

The Morning After Bio-Dads Lose Big In Kentucky

I would have loved to have been a fly on the wall as the Kentucky Supreme Court deliberated this four to three decision which we reported on yesterday here. I am unaware of another family court case creating such a split among the justices. The 47 pages reveal highly charged emotions. The Opinion of the Court by Justice Minton and joined by Justice Lambert appears to try to take the emotion out of the debate but splits hairs to reach the result. Justice Abramson’s dissent in which Justice Schroder joined is passionate and I think well reasoned. If a child carries the DNA of a man other than the husband, it is common sense that the child is not born of the marriage. The concurring Opinion by Justice Cunningham fumes about the morality of it all, interjects words like “interloper” (but declines to judge the wife’s infidelity), and I wonder how his opinion would have been written if the husband and wife were divorcing rather than reconciled. His regret over the abolition of the tort of alienation of affections leaving the “innocent victim of betrayal” without “recourse against the interloping adulterer” is telling. My first jury trial 25 years ago was an alienation of affections case and I can tell you Kentucky abolished that tort none too soon.

The legislature could deal with this result by adoption of the Uniform Parentage Act, bringing Kentucky into the mainstream of states across the country. This act has been endorsed by both the American Academy of Matrimonial Lawyers and the American Bar Association.

In the absence of similar legislation I would not be surprised to see perfected constitutional arguments raised, perhaps yet in this case. The Kentucky Supreme Court expressly declined to rule on the due process and equal protection arguments because they were not procedurally addressed in the trial court. By the way the opinion of the court was written I wonder if Justice Minton might be a “swing vote” on this issue. Even had he not announced his resignation, unless his thinking changed, I would not have expected Chief Justice Lambert to join ranks with the dissenters because of his comment in another case that some things should just be kept secret. Maybe this case was the last straw?

Andrew Wolfson reports in today's Courier Journal Court Rejects Paternity Rights For Man In Affair, online here. I didn't see a peep about it in the Lexington Herald-Leader.

The bio-dad left the following comment yesterday, which I have edited slightly to remove certain allegations that I am unable to verify: As the REAL father, I'd like to say that today is a very sad day for everyone who believes truth and honesty hold value. It was through deception, a lengthy extra-marital affair, that my son was conceived and now Kentucky's highest court believes such deception should not end. I long ago accepted that having a 1 1/2 year affair with Julia Ricketts was wrong but this decision absconds her from any responsibility. I believe this ruling if not overturned will have a detrimental effect upon the rights of biological fathers in Kentucky. Essentially, my rights as a biological father have been terminated without a day in court. This puts absolute power in the hands of mothers.

Putative Father Lacks Standing To Assert Paternity Of Child Born During Marriage In Kentucky

The Kentucky Supreme Court decided J.N.R and J.S.R v. Joseph O’Reilly and J.G.R, Real Party in Interest, commonly known as the “Rhoades v. Ricketts” case today, online here), an unprecedented 4-3 decision with two concurring opinions and two dissenting opinions. 47 pages in all. The opinion of the Court by Justice Minton in which Chief Justice Lambert joined held that the paternity court lacked subject-matter jurisdiction to hear the biological father’s claim for custody and visitation because KRS Chapter 406 limits its applicability to cases of children “born out of wedlock” and that term is defined by statute, when the child is born to a married woman, to paternity claims by a man other than her husband “where evidence shows that the marital relationship between the husband and wife ceased ten months prior to the birth of the child.” Since there was no allegation or proof that the marital relationship had ceased within ten months prior to the child, the Court lacked subject-matter jurisdiction. Interestingly, the Court seemed to invite constitutional challenges to the paternity statute. Although the parties to that case debated an unmarried biological father’s due process and equal protection rights, the constitutionality of the statute was not challenged nor served on Kentucky’s Attorney General. I suspect that we have not seen the end of this case.

Two concurring Justices, Scott and Cunningham, believe that the biological father’s status as a “stranger to the marriage” is the fundamental reason for the legislative language and there is no Constitutional right of a “stranger to the marriage” to assert paternity. Justice Cunningham in his separate opinion went so far as to say the “severely wounded institution of marriage in Kentucky surely protects the parties from unwanted interlopers claiming parenthood of a child conceived and born during their coverture.”

Justice Abramson wrote a brilliant opinion, but unfortunately it was a dissenting one. A full digest of the case will follow.

Constitutional Challenge to Paternity Laws Dismissed By 6th Circuit For Failure to State Claim

Dubay v. Wells, decided by the 6th Circuit yesterday, denied a constitutional challenge to paternity laws, dismissing for failure to state a claim. Quotes from the Family Law Prof Blog:

The suit was brought by Father who claimed that he should not be responsible for child support when Mother had represented that she didn't want to have a child and assured him repeatedly she couldn't get pregnant. Father argued that Michigan's paternity laws violated the U.S. Constitution's Equal Protection Clause because a man does not have a similar choice as does a pregnant woman regarding abortion, adoption or raising a child.
The court found that Michigan Paternity Act does not affect any of Father’s fundamental rights because "it is not a fundamental right of any parent, male or female, to sever his or her financial responsibilities to the child after the child is born." The court further noted that it did not need to apply intermediate scrutiny because the Michigan Paternity Act and other statutes that impose the obligation of support are gender neutral. Finally, the court found that the Michigan Paternity Act withstood rational basis review because "the means that the statute uses to achieve this end–requiring support from the legal parents, and determining legal fatherhood based on the biological fatherhood–is substantially, let alone rationally, related to this legitimate, and probably important, government purpose."

Digest Of Hinshaw, Ky Supreme Court

HINSHAW (NOW LENARZ) V. HINSHAW
FAMILY LAW: EQUITABLE AVOIDANCE AND PATERNITY
2006-SC-000729-DGE.pdf
PUBLISHED: 605 AFFIRMING; OPINION WRITTEN BY - CUNNINGHAM
DATE RENDERED: 10/31/2007

Mom appealed CA’s opinion affirming TC’s order awarding joint custody of child to parents and primary residence to Dad, claiming that TC erred when it failed to resolve Dad’s custody rights based on DNA evidence indicating he was not biological father, and by applying equitable estoppel in its custody determination.

FACTS:
Mom gave birth to child during marriage of parties. At birth, Dad was in the delivery room, cut umbilical cord, and was named on birth certificate. Dad was led to believe that he was biological father to child, and was deeply involved in Child’s life as his father. Three and a half years later, Mom filed for divorce, and then amended her petition, alleging for the first time that Dad was not Child’s biological father and seeking court-ordered DNA testing to prove her claim. DNA evidence established that Dad was not Child’s biological father. TC appointed a custodial evaluator, who determined that the severance of Dad’s and Child’s relationship would result in severe emotional and psychological harm to Child. TC found that Mom was equitably estopped from challenging Dad’s custody rights based on DNA testing, that DNA test was irrelevant to issue of custody, and awarded joint custody to the parties with primary residence to be with Dad. CA affirmed TC on appeal.

ARGUMENTS AND ANALYSIS:
Mom argued that DNA tests rebutted the presumption of paternity in KRS 406.011 and thus triggered the application of KRS 406.111, requiring a resolution of paternity. Mom further argued that equitable estoppel cannot be applied in custody cases and that even if applied, Dad failed to establish the necessary elements of equitable estoppel.

“A party asserting equitable estoppel must show the following elements: (1) Conduct, including acts, language and silence, amounting to a representation or concealment of material facts; (2) the estopped party is aware of these facts; (3) these facts are unknown to the other party; (4) the estopped party must act with the intention or expectation his conduct will be acted upon; and (5) the other party in fact relied on this conduct to his detriment.” SC found that all these requirements were met in this case, as Mom’s acts, language and silence were all aimed at misleading Dad into believing he was Child’s father and at developing the father-son relationship. Though Mom argued that Dad failed to show reliance and conduct to his detriment, pointing to the fact that Dad had testified that he would not have done anything differently in his relationship with Child, SC disagreed. SC noted that Dad’s willingness to continue his relationship with Child had he known the truth is not the same as saying he would have taken no action at all. Mom’s failure to inform Dad of Child’s paternity denied Dad the opportunity to seek legal advice as to the relationship with Child and his rights and obligations with regard to Mom and Biological Father. SC noted that it followed other jurisdictions in its determination that equitable estoppel could be applied in custody cases, and that KY CA had applied the common law principle of equitable estoppel in S.R.D. v. T.L.B., 174 S.W.3d 502 (Ky. App. 2005).
SC held that Mom, having encouraged Father/Son relationship between Dad and Child, could not now deny it, and that under the unique circumstances of the case, “equitable estoppel precludes [Mom] from challenging [Dad’s] status as [Child’s] father, a status she created and accepted.”
Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates

Paternity, Workers comp, Uninsured Employers Fund

UNINSURED EMPLOYERS' FUND V. BRADLEY
FAMILY LAW: PATERNITY
WORKERS COMP: UNINSURED EMPLOYERS FUND (UEF)
2006-CA-000869
PUBLISHED: AFFIRMING
PANEL: KELLER PRESIDING; VANMETER, GUIDUGLI CONCUR
COUNTY: FAYETTE
DATE RENDERED: 10/19/2007

The Uninsured Employers' Fund (UEF) appealed from TC’s order denying its motion to set aside an order determining that deceased worker was father of child. The UEF argued that TC’s order was void ab initio because that court lacked jurisdiction; that it was a necessary party to this action; and that TC erred when it did not provide relief under CR 60.03.

FACTS:
Because Worker’s employer did not have worker’s compensation insurance when Worker died due to a work-related injury, UEF was joined as a party to worker’s compensation claim filed by Estate. During course of discovery in worker’s compensation claim, the parties determined that Worker might have fathered a child before coming to the U.S. from Mexico. Neither the child nor child’s Mother had ever resided in the U.S. After Administrative Law Judge refused to make paternity determination, Estate filed Complaint for Determination of Paternity in Family Court. UEF was not named as a party but was copied on Complaint. UEF did not move to intervene or otherwise respond to the complaint. Family Court entered Agreed Order of Paternity. A few months later, UEF filed Motion to Set Aside Paternity Order under CR 60.02. TC denied the Motion and UEF brought this appeal.

ARGUMENTS AND ANALYSIS:
UEF first argued that TC lacked jurisdiction to determine paternity on several different grounds. In order to file complaint under KRS 406.021, the complaint must have been filed by County Attorney or CHFS. As Estate filed the complaint, the complaint could not have been properly before the court under this statute. CA agreed. UEF also asserted that KRS Chapter 406, which is said to apply to all cases of birth out of wedlock, did not provide jurisdiction to TC to determine paternity, as the birth must have occurred in the state or the mother must have met certain residency requirements. As neither of these terms was met, UEF claimed that TC did not have jurisdiction to decide paternity under KRS Chapter 406. CA again agreed. However, CA found that Section 112 of the Constitution and KRS 23A.100 and 23A.110, when construed together, give the family court jurisdiction beyond KRS Chapter 406 proceedings, including declaratory judgment actions. Furthermore, though the complaint was styled as a determination of paternity, it was appropriate to treat the complaint as a declaratory judgment, as a pleading should be judged according to its substance and not its form.

UEF next argued that Estate fatally erred by failing to join it as a necessary party in the paternity action, because it had an interest that would be affected by the declaration of paternity, as it may be required to pay income benefits to any children of Worker. CA found that UEF did have an interest in the declaration of paternity, but that UEF should have attempted to intervene in the action, as only parties can complain that a necessary party was not joined.

Lastly, UEF argued for relief under CR 60.03, which provides for equitable relief through independent actions. In order to receive this relief, UEF should have demonstrated that there was no other available or adequate remedy; that it did not create or affect the situation for which it requests equitable relief through its own fault or neglect; and that there was a recognized ground for the relief, such as fraud, accident or mistake. CA found that UEF did not and could not have demonstrated any of these things, as the fact that it had the opportunity to intervene in the action affected each one.

As digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates

Courier-Journal Reports On KY Duped Dad Decision

Andrew Wolfson's story, Man who was deceived about paternity retains custody online in today's Courier-Journal reports:

The Kentucky Supreme Court has ruled that people who deceive their spouses into thinking that a child is theirs cannot later contest their right to custody -- even if DNA tests show they are not the parent.

The court unanimously upheld a lower court ruling granting primary custody to Ren Ricky Hinshaw, whose wife led him to believe he was the father of their child until they divorced and she produced genetic testing showing the child wasn't his.

What caught my eye in the article was the statement, The Supreme Court said that if Hinshaw had known that he wasn't the father when the child was born, he could have tried to adopt him. Perhaps this footnote us some insight into where the court is heading as it considers the other husband/bio dad pending case argued the same day but not yet decided.

DLJ reported on the Hinshaw decision and linked to the opinion here. A long list of posts concerning this case and the companion case in the Kentucky Supreme Court can be found be clicking on the "paternity" category on the left sidebar.

Kentucky Supreme Court Affirms Hinshaw #1

Hinshaw v. Hinshaw #1, digested here, was affirmed by the Kentucky Supreme Court today, in an opinion available online. Wife was equitably estopped from claiming husband was not father of child.

FLA: Bio-Dad Loses to Husband In Florida

Lohman v. Carnahan, online, decided September 19, 2007 by the Florida Fourth District Court of Appeal. held where the husband and wife have decided to raise the child of their marriage and to accept all the rights and responsibilities of parenthood, a man who may have contributed his DNA to the child has no statutory or constitutional right to intrude into that private decision.

More On Evolving Paternity Law

The day after the Kentucky Supreme Court held oral arguments on two paternity cases as we reported here, the Michigan Court of Appeals decided Brooks v. Brooks. Jeanne Hannah of Updates In Michigan Family Law posts Nellie Bar The Door: Part II, a sequel to Nellie Bar The Door!. Although Brooks is an unpublished decision, her alarm demonstrates Kentucky is not the only state that, having failed to enact the Uniform Parentage Act , is wrestling with these hugely important paternity questions.

Someone told me that the oral arguments held at the University of Kentucky were going to be streamed online. I haven't found them, so if they are posted, I would very much like to know where.

An interesting development is that Hon. Lisabeth Hughes Abramson, author of the Court of Appeals opinion in Boone v. Ballinger, was installed on the Kentucky Supreme Court as Justice McAnulty's replacement just days before the duo of paternity oral arguments were held. If one is looking to guess where the Kentucky Supreme Court will land on this issue, my bet is that Justice Abramson will lead.

Briefs Posted Re Bio-Dad/Husband Cases (KY)

As no discretionary review was sought in Boone V. Ballinger, digested here, the published decision is now final. It would have made a nice trio instead of a duo of oral arguments next week before the Kentucky Supreme Court, as we have reported here and here. Thanks to Kentucky Court Report for posting the briefs filed in the Kentucky Supreme Court.

Being A Husband and Bio-Dad Not Enough To Establish Paternity? Not In New Hampshire If Child Conceived Posthumously

The New Hampshire Supreme Court held last month that a child conceived after her father’s death via artificial insemination is ineligible to inherit from her father as his surviving issue under New Hampshire intestacy law. The facts:

Donna M. Eng and Rumzi Brian Khabbaz were married in September 1989 and, six years later, had a son together. In April 1997, Mr. Khabbaz was diagnosed with a terminal illness. Subsequently, he began to bank his sperm so that his wife could conceive a child through artificial insemination. He also executed a consent form indicating that the sperm could be used by his wife “to achieve a pregnancy” and that it was his “desire and intent to be legally recognized as the father of the child to the fullest extent allowable by law.” Mr. Khabbaz died on May 23, 1998.

Khabbaz v. Commissioner, Social Security Administration (New Hampshire Supreme Court, August 9, 2007), opinion here.

Calfee v. Cabinet for Health and Family Services and Tammy Aquilian, Child Support, Paternity

Calfee v. Cabinet for Health and Family Services and Tammy Aquilian

Calfee appealed an order denying his request for modification of accrued child support. Calfee’s ex-girlfriend filed an action seeking child support. In support she filed an affidavit admitting that the child could have been another man’s, that Calfee never claimed to be the child’s father, and that the child did not resemble Calfee. In response, Calfee requested a DNA test. However, Calfee could not afford the test. It was rescheduled and again Calfee could not afford the test. Therefore, a default judgment was entered and Calfee was ordered to pay child support. Finally, five years later a DNA test revealed Calfee was not the child’s father. Regardless, the Commonwealth sought to collect the arrearages that had accumulated since the default judgment was entered. The Circuit Court held Calfee was responsible for the arrearages that had accumulated before the default judgment was set aside. The CA remanded and held that the Circuit Court must re-exam the facts and determine whether the mother’s actions amounted to fraud or misrepresentation. If so, Calfee should not be held liable for the arrearages.
CA distinguished the instant case from S.R.D. v. T.L.B., 174 S.W.3d 502 (Ky.App.2005). In S.R.D., a former husband, who waited six years after learning he might not be the child’s father, was estopped from denying paternity and support obligations. In the instant case, however, the child was not born of a marriage. Calfee never held himself out to be the child’s father and there was no legal presumption he was the child’s father. For these reasons Calfee was not estopped from asserting that he was not the child’s father and therefore not obligated to pay support.
Digested by Linda Dixon Bullock, Diana L. Skaggs + Associates

Christian v. Clemente

Because discussion is circulating that the Court of Appeals may be moved to publish this case, we are digesting it for you.
Christian v. Clemente (unpublished)

Mom appealed trial court's decision that it lacked personal jurisdiction over dad and therefore, could not order child support. Mom and dad had a relationship but were never married. Eventually, dad moved to Pennsylvania. Fifteen years later mom filed a paternity and child support action in Kentucky. Dad submitted to a paternity test, which revealed he was the child’s father. However, he asserted that the court lacked personal jurisdiction because mom failed to file within the statute of limitation set forth in KRS 454.220. Mom argued that several other statutes governed the statute of limitations for paternity actions demanding child support. CA, however, held in favor of dad.
CA opined that KRS § 454.220 applies to child support actions against nonresidents even if there is an underlying paternity action. The CA relied on basic statutory interpretation to arrive at this ruling. The court opined that KRS 454.220 was most specific statute with regards to the present issue. Accordingly, KRS 454.220 controls over all other less specific statutes on the issue. Additionally, the lack of language, in KRS 454.220 or later enacted statutes, indicating otherwise signified the legislature’s intent that KRS 454.220 be controlling, with regards to orders for child support against nonresident parents. Furthermore, the court held the instant case was not distinguishable from Parmelee, 18 S.W.3d 347.
Digested by Linda Dixon Bullock, Diana L. Skaggs + Associates.

Paternity Law Review Articles

In view of the chaotic state of paternity law across the country, I think the following law review article digests, compiled by Nancy Ver Steegh in her Annual Survey of Periodical Literature published in the Family Law Quarterly, Vol 40, No 4, Winter 2007 is helpful:

Nancy E. Dowd, Fathers and the Supreme Court: Founding Fathers and Nurturing Fathers, 54 EMORY L.J. 1271 (2005). The author examines bias against fathers in parenting matters, critiquing the Supreme Court’s stereotypic view of fatherhood as a status and suggesting that the Court use a relational, nurturing standard for determining a father’s parental rights.

Parentage at Birth: Birthfathers and Social Fatherhood, 14 WM. & MARY BILL RTS. J. 909 (2006). This author recommends revision of the Uniform Parentage Act to include recognition of both birth fathers and social fathers.

Ronald K. Henry, The Innocent Third Party: Victims of Paternity Fraud, 40 FAM. L.Q. 51 (2006). This article examines the issue of paternity fraud with particular attention to the plight of low-income minority men. The author urges use of routine DNA testing.

David D. Meyer, The Constitutionality of Best Interests Parentage, 14 WM. & MARY BILL RTS. J. 857 (2006). This article considers traditional parentage law and the constitutionality of the emerging best interest parentage law. The author concludes that the constitutional limits on state power to define family are justified.

Jane C. Murphy, Legal Images of Fatherhood: Welfare Reform, Child Support Enforcement, and Fatherless Children, 81 NOTRE DAME L. REV, 325 (2005). This article provides a historical perspective on the definition of fatherhood and also discusses fatherhood in the context of biology and economic support. The author evaluates the impact of child support enforcement and welfare reform on fatherhood and offers proposals for reform.

Jana Singer, Marriage, Biology, and Paternity: The Case for Revitalizing the Marital Presumption, 65 MD. L. REV. 246 (2006). The author analyzes use of the marital presumption in paternity cases and concludes that it would be in the best interest of children to revitalize it.

E. Gary Spitko, The Constitutional Function of Biological Paternity: Evidence of the Biological Mother’s Consent to the Biological Father’s Co-Parenting of Her Child, 48 ARIZ. L. REV. 97 (2006). The author recommends that courts determine parental rights based on the amount of parental labor expended.

Revocation of Acknowlegment of Paternity - What's a "Mistake of Fact?"

Here is an interesting new Michigan case courtesy of Jeanne Hannah at Updates In Michigan Family Law.

Michigan Order Allowing Duped Dad Reimbursement For $55,000 In Child Support Reversed

Michigan is struggling with the same paternity challenges as Kentucky. Updates In Michigan Family Law reports:

Challenges to parentage determinations are becoming more common today than ever before. One factor seems to be a focus on “duped dads,” many of whom want to get out of paying child support for a child now found to be unrelated to them, but named as their child or children in a judgment of divorce. Another factor is the ready availability of DNA evidence. Home DNA testing is common and can provide a basis for a motion to set aside a child support order. Of course, home DNA testing doesn’t provide the controls of court-ordered DNA testing by a reputable lab with its control on the production of DNA samples. A question left undecided in a recent Michigan court of appeals case is whether the court had the actual authority to order a DNA test.

The Michigan Court of Appeals, in an unpublished decision on June 5, 2007 held that a duped dad who had paid child support since 1999 was not entitled to set aside the judgment of divorce in order to obtain reimbursement for over $50,000 in child support paid between 1999 and the date he filed his motion to terminate child support on January 20, 2005. Because the mother’s fraud was intrinsic fraud, a court rule and also well-established case law precluded the trial court to grant this ex-husband relief from the 1999 judgment. He had only one year to challenge to the judgment that ordered child support. Public policy, the court rule, and case law limit the time for motions to set aside judgments in order to preserve finality of judgments. The ex-husband did not challenge the child support order/judgment until 2005—after the mother asked for parenting time provisions to be enforced and for an increase in child support.

Because the ex-husband could not be given relief from judgment, the trial court was limited by Michigan law from retroactive modification of the child support order. The modification could only be retroactive to the date that he filed his motion regarding child support. As a result, the court of appeals reversed the trial court’s order that the mother had to repay to the father almost $55,000 in child support that he had paid under the judgment.

The mother argued unsuccessfully on appeal that the equitable parent doctrine should have been applied. Citing Van v Zahorik, 460 Mich 320 (1999) and Killingbeck v Killingbeck, 269 Mich App 132 (2005), the court of appeals stated that this doctrine has never been applied outside of the context of marriage. The child in this case was born several years prior to the parties’ marriage.

Here is the opinion.

Kentucky Supreme Court Schedules Oral Argument for a Second Husband/Bio-dad Case

The Kentucky Supreme Court has stayed a trial in Rhoades v. Ricketts, expedited the briefing schedule in the matter of J.N.R., et al. v. Hon. Joseph O’Reilly, Judge, Jefferson Family Court, 2007-SC-000175-MR, and has scheduled oral arguments September 12, 2007, at 9:00 a.m., at the University of Kentucky College of Law courtroom, 620 Limestone Street, Lexington, Kentucky. This is the same date that Hinshaw #1 oral arguments are scheduled as we posted here yesterday. The Supreme Court granted the extraordinary stay of proceedings below which might have resulted in a determination of paternity to the bio-dad of a child born into an intact marriage. We reported on Rhoades v. Ricketts here. After the Court of Appeals dissolved the stay it initially imposed and remanded the case to the trial court for further proceedings, the Kentucky Supreme Court reinstated the stay. The issue which brought this to the Supreme Court case is whether irreparable injury would result if a paternity decision was rendered that may later be reversed on direct appeal. Presumably the underlying paternity rights of a bio-dad to an infant born during a marriage will be addressed.

Kentucky Supreme Court Sets Oral Argument In Paternity By Estoppel Case

Oral arguments in Hinshaw#1 digested here will be held by the Kentucky Supreme Court Wednesday, September 12, 2007 at 10:00am at the University of Kentucky College of Law Courtroom, 620 S. Limestone Street, Lexington, KY. It remains to be seen whether discretionary review will be sought in Boone v. Ballinger, digested here, how the Supreme Court will reconcile Denzik v. Denzik, posed here, and whether the result will impact the holding in Wheat v. Com. digested here, which is now final, no motion for discretionary review having been made.

Boone v. Ballinger

BOONE V. BALLINGER___S.W.3d___(Ky. App. 2007)
De facto custodian; doctrine of waiver and estoppel; Rebuttable presumption of paternity; Marital property (401k account)
2006-CA-001257
TO BE PUBLISHED: REVERSING AND REMANDING (ABRAMSON)
DATE RENDERED: 5/4/2007

Several months into dissolution proceedings, Kelly learned for the first time that the two youngest children born during his fifteen-year marriage to Melinda were not his biological daughters. Kelly had been a devoted father to the three-year-old and six-year-old girls, performing the majority of the everyday tasks related to their upbringing and essentially serving as their primary parent. Genetic testing revealed that the girls’ biological father was Melinda’s boss, Daniel, with whom Melinda had been having an affair for seven years. Daniel was a friend of the family and the godfather of the older girl. Both Melinda and Daniel acknowledged that when Melinda became pregnant with each girl, they realized that Daniel might be the father, but neither took any steps to learn the truth and they continued to allow Kelly to believe that he was the father of the girls and to act in that role until Melinda instigated divorce proceedings. Confronted with certified DNA results that established that Daniel was the biological father, Kelly sought de facto custodian status, relying on his central parenting role throughout the girls’ lives. The trial court concluded, after an evidentiary hearing, that Kelly was indeed the de facto custodian and further that Daniel and Melinda were estopped from denying that Kelly was the legal father of the girls.

De Facto Custodian:

On appeal, Melinda and Daniel challenged the trial court's application of KRS 403.270 and its resulting conclusion that Kelly is the girls' de facto custodian. They contend this statute was unavailable to Kelly since he was not the sole caregiver for the two girls but rather provided for them “alongside the natural parent (Melinda).” Following Consalvi v. Cawood, CA agreed with Daniel and Melinda, holding that “it is not enough that a person provide for a child alongside the parent” in order to qualify as a de facto custodian, but rather he must “literally stand in the place of the natural parent.” 63 S.W.3d 195 (Ky. App. 2001)

Waiver of Superior Custody Rights:

Though Kelly did not qualify for de facto custodian status under Kentucky law, CA held that Daniel’s conduct may preclude him from displacing Kelly altogether in the girls’ lives. Even after the adoption of the de facto custodian statute, Kentucky courts continue to recognize the applicability of the doctrine of waiver in a child custody dispute. Accordingly, CA held that on remand the trial judge should address whether Daniel has waived the typically superior custody rights of a biological father. The waiver of a parent's superior custodial right has previously been recognized in two distinct scenarios. CA held that this case presented a third factual scenario: waiver of a biological father's custodial right as against the husband to whom the mother was married when the child was born and who has been led to believe that he is the child's father. Daniel maintained that waiver cannot apply in this case because waiver necessarily entails a knowing and voluntary surrender of a known right. He claims no waiver could occur until he knew the girls were actually his biological daughters. CA disagreed, because Daniel was aware of the possibility at the time each child was born.

Emphasizing that the girls were always in their mother's custody, Daniel also sought to forestall application of the waiver doctrine by citing B.F. v. T.D., 194 S.W.3d 310 (Ky. 2006) for the proposition that waiver can only apply if the children are not in either parent's physical custody. B.F. involved a same-sex couple, one of whom adopted a child who was then raised by both of them. There was no marital dissolution involved when the couple discontinued their relationship, so the non-adopting partner tried to establish her de facto custodian status. She was unsuccessful and the trial court held that she had no standing to pursue custody. CA and the Kentucky Supreme Court affirmed, citing KRS 403.260(4) (repealed in 1980) which limits standing to initiate a custody proceeding to the parents and those who have physical custody of the child. However, CA held that B.F. did not preclude application of waiver in this case. Unlike the domestic partner in B.F who had no standing to initiate a custody proceeding and thus place the issue before a court, Melinda placed the custody issue before the trial court when she filed for dissolution; she and Kelly were parties to the proceeding as the girls' parents and Daniel, deemed a “necessary party” by the trial court, was allowed to intervene. At that juncture, all three adults were properly before the court and the issue of waiver was relevant to the standard required to gain custody. The factors to be considered when determining whether a parent has waived his or her superior custody right include: the length of time the child has been away from the parent, circumstances of separation, age of the child when care was assumed by the non-parent, time elapsed before the parent sought to claim the child, and frequency and nature of contact, if any, between the parent and the child during the non-parent's custody.

Doctrine of Paternity by Estoppel:

CA held that the doctrine of paternity by estoppel adopted in S.R.D. v. T.L.B., 174 S.W.3d 502 (Ky. App. 2005), would not apply so as to estop Daniel and Melinda from seeking a paternity determination. The trial court relied on S.R.D. v. T.L.B. in estopping Daniel and Melinda from challenging Kelly's legal father status. However, that case involved estopping a husband from severing a parental relationship with a daughter born during his marriage who was eventually determined not to be his biological child. Although that case had the same “misled husband” scenario as this case, estoppel was employed to preserve the relationship (both emotional and financial) between the child and the only father she had ever known, not to sever the biological father's rights to establish his genetic connection to the child. Moreover, if a biological father is to be precluded from establishing any legal relationship to his child born during the mother’s marriage to another man, or if he is to be limited in his options, CA stated that such preclusion or limitation must be established by the legislature. The Kentucky General Assembly has not adopted either Uniform Act or any other statutory mechanism curtailing the legal rights of a biological father where his child is born during the mother’s marriage to another man.

CA recognized that an inconsistency exists between Consalvi and the doctrine of paternity by estoppel that was adopted in S.R.D. The focus of “paternity by estoppel” is on the child and the parent-child relationship that has developed. On the other hand, Consalvi holds that a man who provides care and financial support alongside the mother cannot acquire de facto custodian status so as to maintain a father-child bond after the parties' divorce. This result, of course, completely ignores the parent-child relationship that may have developed, a relationship which S.R.D. considered paramount Therein lies the irony: if a misled husband decides to “run” in order to avoid any parental support obligations, he would be prohibited from doing so by S.R.D. and would remain financially bound to the child, but should he desire to “stay” and maintain a relationship with the child, Consalvi, literally applied, says that he cannot be the de facto custodian and is not entitled to custody or visitation. Fortunately, a man who was led to believe he is the father of a child born during his marriage may be able to maintain a relationship with the child in those instances where the biological father has waived his superior right to custody.

If the trial court, on remand, finds that Daniel waived a biological parent's superior right to custody, the result would be to place Kelly, a non-parent who would otherwise have no equivalent right, on an equal footing with Melinda and Daniel in matters concerning custody and visitation. Conversely, such a finding, though conveying standing on Kelly to seek custody and visitation, does not necessarily result in Daniel’s loss of his right to seek the same. Once a non-biological parent is deemed to have standing to seek custody vis-à-vis the biological parents, the ultimate decision by the trial court as to who will be awarded physical custody of a child is dependent upon the best interests of that child.

Division of 401(k) account and exempt KTRS account:

CA held that the trial court erred in deeming it marital property without considering Kentucky Revised Statute (KRS) 403.190(4). By application of KRS 161.700(2), Kelly's entire Kentucky Teachers’ Retirement Services account is exempt. The amount to which Melinda's 401(k) account may be exempted is governed by the limitation found in KRS 403.190(4), i.e. her account is exempt up to an amount that does not exceed the value of Kelly's KTRS account.

Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates

Kentucky Court Of Appeals To Hear Arguments On Paternity By Estoppel April 4, 2007

On April 4 at 1:30pm, The Kentucky Court of Appeals will hear oral arguments in Louisville in an expedited appeal, Boone v. Ballinger. The court's calendar describes the case:

TWO ADVANCED APPEALS ARISING FROM DIVORCE ACTION BETWEEN KELLY AND MELINDA. BOONE AND MELINDA CHALLENGE BY JUDGMENT FINDING KELLY TO BE A DE FACTO CUSTODIAN AND FATHER OF TWO CHILDREN BORN DURING THE MARRIAGE BASED ON A THEORY OF PATERNITY BY ESTOPPEL ALTHOUGH BOONE IS THEIR BIOLOGICAL FATHER. MELINDA ALSO CHALLENGES THE DIVISION OF HER 401K.

Thanks to Michael Stevens of the Kentucky Law Review for the heads up. This is one I'd love to hear; too bad there won't be a podcast. If anyone would like to share the arguments, I would be glad to post the summary. Hear Mike's plea to webcast here.

KBA President Responds to Courier-Journal Paternity Articles

Robert C. Ewald, President, Kentucky Bar Association, writes in a letter to the editor:

Andrew Wolfson’s excellent article about the thorny questions of paternal rights (‘Ky cases pose question: What defines a father?’ March 18) well demonstrates the extraordinarily difficult issues our judges face when resolving disputes that have such an enormous effect on the litigants involved.

In a time when it seems to be accepted sport to condemn judges for their ‘activist’ decisions, perhaps the article will help those would-be critics understand how difficult some judicial determinations are and how decent and honorable are the men and women who must decide these complex cases.

Amen.

We posted about and linked to the front page news here and here. For an exhaustive discussion of the issues, click on the Paternity category on the left sidebar.

Discretionary Review Granted In Hinshaw #1

The Kentucky Supreme Court granted discretionary review of Hinshaw v. Hinshaw on March 14, 2007. The case was digested here and was one of the cases included within Andrew Wolfson's Courier-Journal front page story yesterday, online here.

More on: Does Avowal of Fatherhood Impose an 'Equitable Paternity' - Indiana

The Indiana Law Blog has an exhaustive post updating us on Indiana law in this area after some excellent hand-picked excerpts from Andrew Wolfson's article in yesterday's Courier-Journal. Check it out.

Courier-Journal Companion Piece On Uniform Parentage Act

In a companion Courier-Journal article to Ky. cases post question: What defines a father, Andrew Wolfson writes today Some states handle paternity with Uniform Parentage Act .
A link to the Uniform Parentage Act and the legislative fact sheet can be found at the post here. My sentiments expressed in that post: For years we can allow our families to go to lawyers who will have to give them "I don't know" answers to many questions and work our way though the courts dealing with this on a slow case-by-case basis, or we can get down to work and ask our legislature to act. We have a year until the next legislative session. Come hear Professor Mary M. Beck, University of Missouri, Columbia Law School April 19, 2007 present "Father's Registries and Why Every State Needs One" and "Putative Fathers Or Pop Up Pops." Brochure and registration info here. How timely.

Wolfson Lays Out Paternity Law Chaos

Andrew Wolfson in today's Courier-Journal reports on the husband/paternity fraud/bio-dad cases working their way though the Kentucky Courts. The front page story is here. His report is well researched, well written and accurate, as usual. Even if I had not read it while enjoying my coffee this morning, I would have known something significant had been published when I checked my email because of the Typepad comments to related prior posts waiting for approval. The Courier-Journal publishes "story chat" beneath its online story. Hope they are ready for a birrage.
We have reported on Denzik here and digested it here and discussed its progeny here. Hinshaw was digested here. We previously posted about the G.J.R - J.N.R. - J.S.R. case (now rightfully exposed by Wolfson as the Rhoades/Ricketts case) winding its way through the system here.

Wheat v. Com.

UPDATE: Final as of April 17, 2007
Wheat v. Com., --S.W.3d-- (Ky. App. 2007), 2007 WL 490946 (Ky. App) designated to be published.

Issue: Whether there is an exception to the rule that past child support obligations, once accrued, may not be modified. The Court held yes, child support payments are voidable in the event of fraud or misrepresentation.

Facts:

In 1985 Pruitt, the child’s mother, filed a paternity action alleging Wheat was the biological father of her child. Wheat acknowledged paternity and agreed to pay reasonable child support. An order was entered establishing paternity and Wheat was ordered to pay child support.
Wheat never made any child support payments. In 1997, DNA testing, pursuant to court order, conclusively proved that Wheat was not the father. Wheat then filed a CR 60.02 motion to set aside the paternity judgment, alleging misrepresentation on the mother’s part in inducing him to sign the agreed judgment. He alleged that the mother swore to him that he was the father and then admitted years later that he was not. In 2001 the district court entered an order finding Wheat was not the biological father and set aside the 1985 order and all prospective child support obligations. The issue of arrearages was reserved for further proceedings. Neither party appealed.
In 2004 an order was entered establishing the amount of arrearages to be $13,387.41. In 2005 the local child support office filed a motion to hold Wheat in contempt for failure to pay arrearages. Wheat filed a CR 60.02 motion to set aside the 2004 order for arrearages. The family court denied the CR 60.02 motion and found Wheat in contempt. Wheat appealed.

Analysis:

First, the Court found that Wheat was not equitably estopped from asserting that he is not the legal father. Unlike the case of S.R.D v. T.L.B., Formerly T.L.D., 174 S.W.3d 502 (Ky. App. 2005), there was no presumption of paternity since Wheat was never married to the mother, Wheat did not establish a bond with the child, Wheat did not act as the “psychological father,” and Wheat had no relationship with the child at all. Therefore, there is no equitable reason to require Wheat to pay child support. Moreover, the district court had ruled that Wheat was not the legal father in 2001, and no party appealed.
Second, the Court held that Denzik v. Denzik, 197 S.W.3d 108 (Ky. 2006), created an exception to the rule that past child support obligations, once accrued, may not be modified. In the event of fraud or misrepresentation, child support payments can be voided. The following factors must be shown to establish fraud or misrepresentation: 1) a material misrepresentation, 2) which is false, 3) known to be false or made recklessly, 4) made with inducement to be acted upon, and 5) acted in reliance thereon and causing injury.
The Court noted that all factors may be satisfied in the instant case, but remanded the case back to the trial court for an evidentiary hearing and findings of fact. The Court stated that if the trial court finds that the mother was guilty of fraud or misrepresentation, Wheat’s motion should be granted and both the arrearage and the order of contempt should be set aside. If no fraud is found, then Wheat is legally responsible for the arrearages.
Digest by Sarah Jost Nielsen, Diana L. Skaggs + Associates, www.LouisvilleDivorce.com.

DLJ also posted about this case here.