Family Law Prof Blog

Case Law Development: DNA Testing and Dismissal of Paternity Actions

The Supreme Court of Wyoming, in a case of first impression, interprets its state paternity statute regarding the impact of a DNA test excluding paternity.  The disputed provision reads: "If the scientific evidence resulting from the genetic tests conclusively shows that the defendant could not have been the father, the action shall be dismissed."  In this case, father submitted a genetic test excluding his paternity but took no further action.  Over a year later,  the laboratory contacted the court to notify it that it had discovered an error in the testing -- it had switched samples.  When it re-ran the test with the correct samples, defendant was established to have a 99.99% probability of paternity.  The court then ordered additional genetic testing, which also pointed to defendant as father.

Father argued that the court lacked any authority to order further testing because the statute required the court to sua sponte dismiss the paternity action once the first test had been submitted excluding him as father.  The court found otherwise:

The cases relied upon by RK do not, however, establish that the plain language of Wyo. Stat. Ann. § 14-2-111(f) mandates dismissal in the absence of an appropriate motion. The statute does not establish a timeframe for dismissal, nor does the statute require the district court to dismiss paternity cases on its own initiative. There was nothing to prevent RK from filing a motion to dismiss the paternity action, but RK did not file such a motion until after the court had received information undermining the reliability of the Test 1 results. Stated differently, at the time RK moved for dismissal, the genetic test had not "conclusively" established that RK was not the father. We also note that there is no requirement in the statute that dismissal be with prejudice. In the absence of a dismissal with prejudice, the State could have re-filed the action in August 1994 when the laboratory's error became known. In sum, RK asks this Court to read far more into the statute than is justified by its plain text. The court's failure to dismiss the action, sua sponte, did not violate the plain language of the statute. Accordingly, the paternity action was still pending at the time the laboratory revealed its mistake.

Father also argued that the trial court had applied the paternity statute in effect at the time of the decision rather than at the time the action was filed. The earlier statute had been more generous in the range of evidence permissible to rebut a paternity test. Thus, father argued, the trial court improperly excluded testimony of an expert witness.  The Supreme Court agreed that the trial court erred in this exclusion but found it harmless error in the context of the two subsequent genetic tests establishing father's paternity.

RK v. State ex rel. Natrona County, 2008 WY 1 (January 8, 2008)
Opinion online (last visited January 9, 2008 bgf)

Case Law Development: Constitutional Challenge to Paternity Laws Dismissed For Failure to State Claim

A three-judge panel of the 6th U.S. Circuit Court of Appeals upheld a trial court's dismissal of a constitutional challenge to paternity and child support laws. 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."

The court declined to award fees for a frivolous appeal however.  "While we find [Father’s} challenge to the Michigan Paternity Act to lack support in our equal protection jurisprudence, we do not consider his appeal of the district court’s decision to be frivolous or worthy of imposing sanctions. Admittedly, our precedent ... suggests that [Father's] claim should be viewed as “wholly without merit.”... However, the court noted that the claim in this case was brought under a legal theory that had not yet been rejected by the court.

Dubay v. Wells, 6th Cir Ct. App. (November 6, 2007)
Opinion on the web (last visited November 6, 2007 bgf)

Case Law Development: Florida Supreme Court Requires Adoption Agencies to Notify Unmarried Biological Fathers of Paternity Registry

In a decision that clarified a number of issues that had split the Florida appellate courts, the Florida Supreme Court has held that an unmarried father's parental rights may not be terminated based solely on failure to register in the putative father registry. "We hold that the rights of an unmarried biological father in relation to the child, who is known or identified by the mother as the potential father and who is locatable by diligent search, may be terminated based on his failure to file a claim with the Florida Putative Father Registry only if the father was served with notice under section 63.062(3)(a), Florida Statutes (2005), and he fails to comply with the requirements of that subsection within the thirty-day period."

The court did not eliminate the requirement that unmarried father's register in order to prevent the termination of parental rights.  "The entire statutory scheme would be frustrated, including the interest in prompt adoption proceedings, if an unmarried biological father could avoid having his parental rights terminated prior to an adoption, even though he failed to comply with the requirements of section 63.062(2). In fact, section 63.054(1) contemplates that the termination of parental rights proceedings will operate against unmarried biological fathers in order to promote finality and certainty by providing that an unmarried biological father must file a claim of paternity with the Registry."

However, the court went on to analyze the notice an adoption agency must provide an unmarried biological father before the statutory registration requirement attaches.  The court's statutory interpretation side-stepped constitutional challenges to the paternity registry.

The court noted that registration alone is insufficient to prevent termination of parental rights of unmarried fathers.  The fathers must also file an affidavit of commitment in the court in order to establish and preserve his right to be made a party to any proceeding to terminate parental rights and to establish that his consent is required to the proposed adoption.

Heart of Adoptions v. J.A., Florida Supreme Court (July 12, 2007)
Opinion online (last visited July 27, 2007 bgf)

Case Law Development: De Facto Parent Doctrine Rejected by Utah Supreme Court

The Utah Supreme Court has held that individuals who have no biological or legal relationship with a child have no standing to seek visitation. Reversing the district court's decision that a former domestic partner could assert a claim to visitation under the common law doctrine of in loco parentis, the court held that Utah's doctrine of in loco parentis does not independently grant standing to individuals to seek visitation after the in loco parentis relationship has ended.

The couple in the dispute had entered into a civil union in Vermont and, after one bore a child conceived through artificial insemination, they were both obtain co-guardianship of the child and raised the child together until their relationship dissolved two years later.  The court emphasized the temporary nature of the in loco parentis doctrine, concluding that it may be terminated by either the legal parent, the parent standing in loco parentis, or the child.  The court further refused to expand the doctrine to recognize a new doctrine of de-facto or psychological parent, finding that a legislative task beyond the competence or power of the judiciary and in conflict with legislative policy.

Chief Justice Durham dissented, emphasizing that there had been no legislative pronouncements at all on the issue of surrogate parent standing to seek visitation or custody and finding the extension of such a doctrine to be an appropriate exercise of the court's power to adapt the common law to changing social realities.

Jones v. Barlow, Utah (February 16, 2007)
Opinion on web (last visited February 26, 2007 bgf)

Legislative Update: Bills to Allow Disestablishment of Paternity

Legislation is working its way through the Colorado legislature that would make it harder for Colorado to force people to pay child support to children DNA tests have proven aren't theirs.  The text of the bill.   See the CBS4Denver website for a news video on the bill. 

According to the Kansas City Star, this week a bill was introduced into the MIssouri legislature allowing DNA evidence to disestablish paternity after the current one-year limitations period.

See this Time magazine article on the national movement to pass similar legislation.

(all links last visited February 15, 2007 bgf)

Case Law Development: Teeth Pulled From Putative Father Registries

The Florida court again reaffirmed its holding that a failure to file with the putative father registry is not a basis for terminating a biological father's parental rights in an adoption proceeding.  A concurring opinion by Judge Canady questions the completeness of the court's analysis in the several cases establishing this precedent, noting that the putatitve father act  expressly provides that:

"An unmarried biological father who does not comply with [the act] is deemed to have waived and surrendered any rights in relation to the child, including the right to notice of any judicial proceeding in connection with the adoption of the child, and his consent to the adoption of the child is not required."

J.A. v. Heart of Adoptions, Inc. (February 7, 2007)
opinion on web (last visited February 9, 2007)

Case Law Development: Publicly Admitting Paternity Sufficient to Establish Inheritance Rights

The California Court of Appeals interprets its probate code to provide that "a child born out of wedlock to establish a father-child relationship for intestate succession purposes by providing clear and convincing evidence that the father "has openly held out the child as his own."  Here, the father was aware he had fathered a son and had offered to marry the mother who refused and married another man who had raised the son as his own. When the son was 18 years old he learned of his biological father's identity and established a relationship with the father's family.  Despite the fact that father admitted he was the biological father, was not interested in establishing a relationship with the son and limited his contact with him.  The court held that father's acknowledgement to family members and others that he was the biological father was sufficient to establish his paternity under the probate code -- neither a desire for a relationship with the son nor any formal written acknowledgment of paternity were required.

Estate of Burden, 2007 Cal. App. LEXIS 48 (Jan 16, 2007)
Opinion on the web (last visited January 22, 2007 bgf)

Meta-Study on Paternity Confidence

"Here’s an unpleasant figure for a man to ponder: 10 percent of all children conceived in the context of a marriage (or a less formal heterosexual pairing) have been fathered by someone from outside the couple. “Dad” has been cuckolded. Or so many biologists and anthropologists have been saying for decades.

But in the June issue of Current Anthropology, Kermyt G. Anderson, a professor of anthropology at the University of Oklahoma, cast serious doubt on the 10 percent figure. Girlfriends and wives, it seems, are less worthy of distrust than many scientists have thought. “The upshot,” Anderson says, “is that you shouldn’t be worried, if you are pretty sure the kid is yours.”

Anderson’s was a meta-study: he examined every paper or reference he could locate that touched on the topic. First he identified 22 studies, dating back to 1949, in which men with few or no doubts about their paternity learned that they weren’t related to one of “their” kids. These studies were mostly designed to explore genetically linked traits in fathers and children. Presumably, if you or your wife suspected you were unrelated to a child, you’d find an excuse not to take part in a genetic study like that, so Anderson determined that these men had high paternity confidence. Collectively in these studies, only 1.7 percent of men learned they were not the true fathers." By Christopher Shea, N.Y. Times Link to Article (last visited 12-11-06 NVS)

Case Law Development: Name Changes & Children

The Indiana Court of Appeals reversedd a trial court that had granted a name change, allowing mother to change her child's last name from her own to that of the child's stepfather, over the objection of father, who had never been married to mother but had been adjudicated father in a paternity action.  The court reversed on the grounds that the trial court had erred in sequestering father as a witness during the name change proceeding.  "Although an action to change a person's name is not an adversarial proceeding in the traditional sense, Father is a necessary party who had a right to participate in the proceeding. It is reversible error to extend the separation of witnesses to those who have a substantial interest in the subject matter." 

In dicta, the court also noted that Indiana statutes provide a presumption in favor of a parent of a minor child who has been making support payments and fulfilling other duties in accordance with a decree and objects to the proposed name change of the child.  Mother had argued that the presumption should not apply in this case because the child had never had Father's last name, but the court disagreed, noting that if the court found as a matter of fact that Father fulfilled the requirements of the statute, the presumption would apply.

In re Fetkavich, 2006 Ind. App. LEXIS 2152  (October 27, 2006)
Opinion on the web (last visited October 30, 2006 bgf)

Paternity Suit Filed Regarding Anna Nicole Smith's Baby

"Larry Birkhead has filed a paternity suit to prove he’s the daddy of Anna Nicole Smith’s new baby daughter. The Louisville native also has eschewed the ongoing war of words he was forging on his Web site by hiring a publicity firm, which sent out a statement confirming celeb attorney Debra Opri has filed court papers on his behalf." By Angie Fenton, Courier-Journal Link to Article (last visited 10-4-06 NVS)

Paternity Contest over Ann Nicole Smith's Child

It's definitely a teachable moment.  I've had no less than five students this week ask me about the two men who are claiming paternity of Ann Nicole Smith's child.  In case you're getting questions, here's a link to the story. (last visited October 4, 2006).  I've been sending students to the Uniform Parentage Act for their answers.  Cornell's Legal Information Institute has the full text of the statute and links to the state versions.

Case Law Development: Child is Not Bound by Mother's Compromise of Paternity Action unless Independently Represented

A 22-year-old son brought an action for paternity and retroactive child support against his putative father.  Father claims res judicata precludes the suit because in 1983, Mother had dismissed with prejudice her own paternity action pursuant to a compromise with putative father.  The trial court rejected the res judicata argument, and the Ohio Court of Appeals affirmed.  The court noted that the son was not represented by counsel in Mother's action and the guardian ad litem appointed for him in that action signed the settlement as to form only and the court did not obtain the approval of the GAL as to the substance of the agreement.  As children have separate interests in a determination of paternity beyond the right to collect support, the court applied the general rule that

a minor child is not barred from instituting a later action to determine paternity when a prior action brought in his name has reached judgment through a stipulated agreement.... Under these circumstances, this Court finds that [son's] interests were neither determined nor considered and his rights were not adequately protected, so that he did not have a full and fair opportunity to litigate the issues pending before the juvenile court in 1983. Because [son] was not accorded his due process rights in regard to the 1983 compromise agreement, his instant claims could not be barred by the doctrine of res judicata.

Knapp v. Bayless,  2006 Ohio 4414; 2006 Ohio App. LEXIS 4344 (August 28, 2006)
Opinion on the web (last visited August 29, 2006 bgf)

Case Law Development: Michigan Supreme Court Denies Paternity Action to Father Listed on Birth Certificate and Acknowledgment of Paternity

The Michigan Supreme Court has ruled that a man lacked standing to bring a paternity action, even though he was listed as the father on a child's birth certificate and in an affidavit of parentage executed in the hospital and then helped raise the child for more than four years until he and Mother separated.  Mother was married to another man when she became pregnant and concealed the pregnancy during the divorce.  Michigan law provides standing to bring paternity actions only for children born out of wedlock or for whom a court has determined by clear and convincing evidence that the child is not issue of the marriage.  In Mother's default judgment of divorce, the court stated that it appears that “no children were born of this marriage and none are expected.”  The Michigan Supreme Court, in a 4-3 decision, held that the plaintiff did not have standing under the Paternity Act "because the default judgment is not clear and convincing evidence that the child was not an issue of the marriage."

The dissenting opinions had strong words for the majority:

In this case, the majority again evidences a rigid adherence to wooden
strictures such as the presumption of legitimacy even where, as here, the purposes
of the presumption are not served. The majority has exhibited a consistent pattern
of ruling against putative fathers who seek to exercise their due process rights with
respect to children they claim as their own.  (dissent by Kelly, J.)

In adopting defendant’s position that the divorce judgment was insufficient
to establish that her child was born out of wedlock, the majority renders a default
judgment in this case meaningless; it condones and encourages gamesmanship by
a party to a child custody proceeding; and it allows a party to prevail, in significant
part, because of that party’s own delinquency in failing to participate in an earlier
judicial proceeding. (dissent by Markman, J.)

Barnes v. Jeudevine, 2006 Mich. LEXIS 1460 (July 26, 2006)
Opinion on the web

For news reports including a video interview with the father, see WWMT.com Digital Channel 3 (last visited July 27, 2006 bgf)

More than Biological Connection Required for Parent to Inherit from Child?

What is a father? Today, a judge in Hudson County is expected to issue his legal opinion on fatherhood in the case of a  Staten Island man trying to claim half of his late daughter's inheritance. The case involves a  New Jersey law that divides the estate of someone who dies without a will between the person's parents if there are no children or other descendants. The attorney for the deceased woman's mother believes the judge's ruling will break legal ground in defining and interpreting parental inheritance.   The legal case hinges on whether the Staten Island man, Ruben Martinez, should still be considered the woman's legal parent even though he admits in court papers that he was not very involved in his daughter's upbringing and did not pay child support.

Read more of the article by Rudy Larini from New Jersey's Star-Ledger (last visited July 25, 2006 bgf)

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Case Law Development: Judicial Determination that a Father is the Equitable Parent of a Child Precludes Paternity Actions against Other Fathers

A Michigan attorney was properly held liable for malpractice in failing to perfect an appeal of a child support order against a biological father because another man - the husband of the child's mother - had been already been adjudged to be the equitable parent. "Because a court determination that a man is the equitable father of a child is mutually exclusive of a determination that the child was born out of wedlock, an equitable parentage order precludes the mother from having standing to assert a paternity action regarding that child."  Thus, had the support order been appealed, it would have surely been reversed, making the case for malpractice one readily proven. 

Coble v. Green, 2006 Mich. App. LEXIS 1835 (June 15, 2006)
Opinion on the web (last visited June 18, 2006 bgf)

Confucius-DNA Database

"Chinese claiming Confucius for an ancestor can now use a genetic test to prove a direct blood connection to the grandfather of Chinese social mores, a state newspaper said on Friday. The fifth-century BC social philosopher's ideas of filial piety and deference to elders influence Chinese society and politics even today.Now his countrymen can establish a genetic link in a test that will cost more than 1,000 yuan ($125), according to the Shanghai Morning Post. "We would like to help these unconfirmed claimants to test their DNA and to establish a Confucius-DNA database," it quoted Deng Yajun, a DNA expert from Beijing Institute of Genomics at the Chinese Academy of Science, as saying.How the scientists had obtained a sample of Confucius's DNA was not explained." Reuters, YahooNews, Link to Article (last visited 61806 NVS)

DNA Test to Resolve Paternity so Wrongful Death Action may Proceed

The question of who is the biological father of a 16-year-old boy shot and killed by Delray Beach, Florida police will be resolved through DNA testing, a judge ruled this week.  The boy’s mother is dead and both men claim to be his biological father and both are seeking to file a wrongful death suit against Delray Beach. One of the two men has already indicated a desire to settle the case for 7.5 million.  Source.  Missy Sotddard, South Florida Sun-Sentinel, sun-sentinel.com. For the complete story, please click here (last visited June 11, 2006, reo).

Monaco Prince Acknowledges California 14-Year-Old is His Daughter

Prince Albert of Monaco has officially recognized that a 14-Year-Old California Teenager is his daughter who was conceived out of wedlock during a brief visit by the child’s mother to Monaco. According to Prince Albert's Paris lawyer, the teenager is welcome to visit or live in the tiny Rivera principality.  However, she apparently cannot take the Prince’s surname and is not eligible to become queen. She is the second child fathered out of wedlock by the prince.  Source. Jim Wilson, smh.com. For the complete news story, please click here (last visited June 3, 2006, reo).

Did Prince Albert II of Monaco Father 14-year-old girl Living in California?

According to French sources, Prince Albert II of Monaco is about to recognize a now 14-year-old girl who lives in California as a child he fathered out of wedlock. The child’s mother claims the child was conceived during a brief affair with the prince while she vacationed in Monaco in 1991.  Source.  Keith Matherny, The Desert Sun, thedesertsun.com. For the compete story, please click here (last visited May 31, 2006, reo).

Mississippi Supreme Court Says Genetic Testing O.K. in Paternity Cases -- Even If Not in Child’s Best Interests

The Mississippi Supreme Court has ruled that genetic testing must be performed when requested by either party in a paternity case. The court held that “Even if a trial court determined it was not in the child's best interests to require a paternity test, all that is necessary, under the statute as it currently exists, is for either the plaintiff or defendant in a suit regarding paternity to move for a test to be done. No discretion is afforded.”  The court said it was bound to apply the statute permitting testing unless it is changed by the legislature. A copy of the opinion in Thoms v Thoms can be found by clicking here (last visited May 24, 2006, reo).

Case Law Development: Unmarried Biological Father's Consent Required For Adoption If Paternity Uncontested in Other Prior Proceedings

The Florida Court of Appeals reversed a trial court's order of adoption without securing the consent of the biological father.  The child and Mother had both tested positive for cocaine at the child's birth.  As a result, the state initiated dependency proceedings and identified Father as the biological father, without objection. 

In an effort to avoid the dependency proceeding, Mother's parents brought an action to adopt the child, to which Mother consented.  The trial court found that Father's consent was not required because he had not timely registered in the putative father registry.

The court of appeals reversed, finding that the trial court erred in determining that the Florida statutes requiring registration in the putative father registry is the sole method of preserving an unmarried biological father's rights.  Rather, the court held, a court must obtain consent to adoption from any man who qualifies as a father under any of the statutory sections of the statute.  "Thus, subsection (b)5 [the putative father registry] is not a default provision under which all unmarried biological fathers must qualify to protect their parental rights -- it is merely one statutory method among five to identify a child's father."  The court went on to note that father's consent was required because he met the statutory section in which paternity has been "established by court proceeding." "The phrase "established by court proceeding" is not limited to a formal paternity adjudication under chapter 724, Florida Statutes (2004). Rather, any time a court makes a factual determination as to the identity of a minor child's father, and the determination is material in the proceeding before the court, that proceeding qualifies as a "court proceeding" under subsection (b)3."

The dissent argues that the majority's conclusion that father's consent was required under the adoption act was "unsupported by the facts, directly contravenes the expressed legislative intent set forth in the Florida Adoption Act, and directly conflicts with prior case law from this court as well as overwhelming precedent from around the country."

B.B. v. P.J.M. & K., 2006 Fla. App. LEXIS 8011 (May 22, 2006)
Opinion on the web (last visited May 23, 2006 bgf)

Case Law Development: Florida Supreme Court Suggests Changes to Paternity Law – Says Man Married to Woman at Child’s Birth is Indispensable Party

The Florida Supreme Court suggested in an opinion this week involving establishment of paternity for child support purposes that the Legislature may want to consider changing a law that keeps some paternity cases from being resolved because an indespensable party could not be found.  The court framed the issue as whether a legal father (i.e., a man married to the child’s mother at the time of birth) is an indispensable party in a paternity action brought by the State to establish that a man other than the legal father is the child’s biological father and, as such, is obligated to provide child support.

The court held that the state’s presumption of legitimacy requires a holding that the legal father is an indispensable party in an action to determine paternity  unless it is conclusively established that the legal father’s rights to the child have been divested by some earlier judgment.  It observed that “A child born during marriage is presumed to be the child of both the husband and wife. This presumption of legitimacy is “one of the strongest rebuttable presumptions known to law. . . . This presumption grants legal fathers an `unmistakable interest’ in paternity actions brought by the Department.”

The court also observed that Florida’s service of process statute does not permit constructive service of process in paternity cases, and there is no express provision in Florida law to authorize constructive service or to ensure that a legal father’s interests are appropriately protected. It said that “Whether the statutes should be modified to address this dilemma is a policy decision for the Legislature to decide.”

(For a  discussion of the presumption of legitimacy and the dilemmas Florida courts confront when faced with children born during marriage but fathered by someone other than the mother’s husband, see Chris W. Alternbernd, Quasi-Marital Children: The Common Law’s Failure in Privette and Daniel Calls for Statutory Reform, 26 Fla. St. U.L.Rev. 219 (1999)). For a copy of the slip opinion of the Florida Supreme Court in T.D., et. al. v. Florida Department of Children and Families, et. al., please click here (last visited May 14, 2006, reo).

Women Seek Men Who Like Children

"Women looking for a long-term relationship like men who like children _ and they can tell which guys might be interested in becoming fathers just by looking at their faces. Those are among the findings of a study of college students published Wednesday in a British scientific journal.

"This study suggests that women are picking up on facial cues that are perhaps related to paternal qualities," said James Roney, a University of California at Santa Barbara psychologist and lead author of the study. "The more they perceived the men as liking kids, the more likely they could see having a longer-term relationship." Experts said evolution has apparently programmed women to recognize men who might be interested in propagating the species by raising a family." By Don Babwin, Washtingonpost.com Link to Article (last visited 5-10-06 NVS)

Case Law Development: Ohio Court of Appeals Says Woman Claiming Priest Impregnated Her 40 Years Ago May Proceed with Action against Archdiocese

The Ohio 1^st District Court of Appeals ruled Friday that a woman claiming a Catholic priest impregnated her 40 years ago and coerced her into putting the baby girl up for adoption may proceed with her case against the Archdiocese of Cincinnati.  She is accusing the church of covering up the priest’s conduct and pressuring her to keep quite about the child’s father.  The court held that the Archdiocese was equitably estopped from asserting the statute of limitations defense because (1) the defendant made a factual misrepresentation; (2) the misrepresentation was misleading; (3) the misrepresentation induced actual reliance that was reasonable and in good faith; and (4) the misrepresentation caused detriment to the relying party. As to the first two elements, a plaintiff must show either actual or constructive fraud.  Additionally, when it is used in a statute-of-limitations context, a plaintiff asserting equitable estoppel must show either “an affirmative statement that the statutory period to bring an action was larger than it actually was or promises to make a better settlement of the claim if plaintiff did not bring the threatened suit, or similar misrepresentations or conduct on the defendant’s part.”

The court said that the woman’s complaint was “replete with allegations that the Archdiocese intimidated her into believing that the pregnancy was solely her fault, pressured her into giving up her child, and coerced her into remaining silent about the identity of her child’s father. She was led to believe that her child would not be baptized absent an adoption.”  It also said that she had successful alleged that her reliance was reasonable and in good father asserting that because of “religious indoctrination,” her reliance was “both reasonable and in good faith.”    The Archdiocese announced it will appeal the ruling.  News Source.  Dan Horn, Cincinnati Enquirer, Cincinnati.com. Please click here for the complete story (last visited May 7, 2006, reo). The decision, Jane Doe v. Archdiocese of Cincinnati, may be obtained by clicking here (last visited May 7, 2006, reo).

Pennsylvania Court Removes Triplets from Custody of Surrogate Mom

A Pennsylvania trial court on Friday removed custody of 2½-year-old triplets from their surrogate mother and awarded them to the man who paid the surrogate to birth the boys. The court ruled that the surrogate mother lacked standing to seek parental status or challenge their 64-year-old father’s right to his biological children. The surrogate had taken the children against the biological father’s wishes after she delivered them in November 2003 and set out to raise them at her home. The decision overturns a previous ruling that awarded the surrogate primary custody and granted the biological father only "liberal visitation" rights. Source.  John Horton, Plain Dealer Reporter, Cleveland.com. For the complete story, please click here (last visited April 23, 2006, reo).

Survey Article: Paternity Fraud

An article written by Tresa Baldas in the National Law Journal surveying Paternity Fraud throughout the United States may be of interest to our readers.  It can be found at Law.com.  Source.  Tresa Baldas, The National Law Journal, law.com. The article may be found by clicking here (last visited April 8, 2006, reo).

Case Law Development: Standing to Challenge Paternity in Divorce Action

The Utah Court of Appeals clarified the application of its two-factor test for standing to challenge paternity in a divorce action.  The court reversed a trial court's determination of paternity in the biological father of a child born to a married couple upon their divorce when the child was nearly 2 years old, even though the marital father had known about the uncertainty of his paternity when the child was born, he and mother had agreed to try to make their marriage work and that he would be treated as father, and the biological father had not attempted to support or substantially involve himself in the child's life for the first 16 months.

The court of appeals reversed, holding that the non-marital father should not have been given standing to intervene in the couple's divorce in order to contest paternity because allowing interventions in the circumstances of cases such as this would undermine marital stability by removing incentives for couples to attempt to preserve their marriages in the face of marital infidelitly and, more significantly, the intervention would be disruptive and was unnecessary.

The case provides a fascinating discussion of the competing rights of biological and marital fathers. Pearson v. Pearson, 2006 UT App 128, 2006 Utah App. LEXIS 130 (March 30, 2006)
Opinion on the web (last visited April 5, 2006 bgf)

The case involved a husband and wife who had two children.  The second child was, Mother believed, actually the child of another man.  During the pregnancy, she informed her Husband about Paramour and her belief regarding the child's paternity.  The couple stayed together in an attempt to make their marriage work. Father agreed to raise the child as his own, and Mother agreed to treat Father as the child's natural father.  Father's name was placed on the birth certificate and the couple continued their marriage and to raise the child for nine months.  After they separated, they continued to voluntarily share physical custody of the child on a fifty-fifty basis.  For the first 16 months of the child's life, Paramour did not provide any care or support for the child and only saw him about half a dozen times.  Father sued for divorce.  Paramour moved to intervene and Mother denied Father's paternity of the child in her answer and asked the trial court to declare that Father was not child's biological father.  Father opposed both motions. The court bifurcated the proceedings and granted the divorce, reserving custody issues.  Mother then married Paramour and had a child by him.   On the custody issue, the trial court concluded that Paramour did have standing to contest paternity, and found that he was the father, based on genetic testing, and ordered that he and Mother have joint custody of the child,  but providing a physical custody arrangement that alternated child's time between the two households.

The court of appeals reversed.  Utah caselaw provides that a decision to provide a person standing to challenge the presumption of legitimacy of a child born into a marriage must be based primarily on two policy considerations: "preserving the stability of the marriage and protecting children from disruptive and unnecessary attacks upon their paternity."   The court found that neither of these considerations supported the trial court's decision. 

While the trial court had concluded that allowing Paramour to intervene would not affect the stability of the marriage, as the marriage had already dissolved, the supreme court found that this prong of the test requires the court to "review the totality of the circumstances to determine whether a particular paternity challenge conflicts with the policy goal of preserving the stability of the marriage."  Viewed in that light, the court concluded that the couple in this case would have been less likely to attempt to preserve their marriage had they known that Paramour would have standing to challenge paternity.  "The question is not whether the [couple's] marriage ultimately failed, but rather whether the potential of a challenge to [child's] paternity would have undermined the ... marriage while it was still in existence. Under Father's version of events, the possibility of raising [child] as his own child without interference from [Paramour] was perhaps the central issue motivating him to make the marriage work."

On the second prong of the test, the court found that allowing Paramour to challenge paternity would be disruptive when he had been uninvolved with the child for the first 16 months and Father and Child had become bonded.  The court acknowledged that a mental health expert had testified that Paramour's presence in child's life was not harming child, but noted that that was a different question than whether allowing Paramour to challenge paternity would be disruptive.

Moreover, the court determined that the intervention was unnecessary.  "We presume that, like the disruption element, the necessity element must be analyzed primarily from the child's perspective...  we cannot see how [Paramour's] ability to challenge [child's] paternity remained necessary after he voluntarily absented himself from [child's] life. From [child's] perspective, he had a father in Father from his earliest ability to form paternal bonds....  at the time of the trial court's intervention order, [child] had a father and was not in need of a different one.

Since Paramour had no right to intervene, the court's paternity decision was invalid as was its custody determination.  The court noted in dicta that "Mother would also appear to be barred from challenging [child's] paternity on the facts and posture of this case. She too would lack standing [under the two-part test]... and her actions prior to the initiation of divorce proceedings might support a determination that her challenge was barred by equitable estoppel.... For the same reasons, Father would also appear to be barred from seeking to disestablish paternity of [child] should he ever choose to do so."

Putative Father Registry Deadlines

"Jeremiah Clayton Jones discovered that his former fiancée was pregnant just three weeks before the baby was due, when an adoption-agency lawyer called and asked if he would consent to have his baby adopted. "I said absolutely not," said Mr. Jones, a 23-year-old Arizona man who met his ex-fiancée at Pensacola Christian College in Florida. "It was an awkward moment, hearing for the first time that I would be a father, and then right away being told, 'We want to take your kid away.' But I knew that if I was having a baby, I wanted that baby." Mr. Jones has never seen his son, now 18 months old. Instead, he lost his parental rights because of his failure to file with a state registry for unwed fathers — something he learned of only after it was too late. Under Florida law, and that of other states, an unmarried father has no right to withhold consent for adoption unless he has registered with the state putative father registry before an adoption petition is filed. Mr. Jones missed the deadline.
Although one in every three American babies has unwed parents, birth fathers' rights remain an unsettled area, a delicate balancing act between the importance of biological ties and the undisrupted placement of babies whose mothers relinquish them for adoption." By Tamar Lewin, New York Times Link to Article (last visited 3-19-06 NVS). For related commentary see Updates in Michigan Family Law by Jeanne Hannah Traverse Link (last visited 3-19-06 NVS)

State Registries

The national directory of putative father registries links to registry requirements for Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Louisiana, Minnesota, Missouri, Montana, Nebraska, New Mexico, New York, Ohio, Oklahoma, Oregon, Tennessee, Texas, Utah, and Wyoming.The registry is maintained by Erik L. Smith. Link to Webpage (last visited 3-19-06 NVS)

"Fathers" Challenge Registry

"Critics call it Florida's best-kept secret, a law that allows babies to be adopted without notifying unwed fathers.Now, two men are challenging rulings under a state law that stripped them of their parental rights because they weren't registered with a state data bank. A Marine sergeant contends his newborn son was fraudulently adopted while he was stationed overseas after his West Palm Beach girlfriend had another man sign the parental consent. She died less than two months later.In a similar case, an Arizona man once engaged to a Pensacola Christian College senior is seeking custody of their son, saying the woman's parents removed her from school because the two had premarital sex. She hid the pregnancy from her former fiance until 23 days before birth, court records show. The child was adopted even though the apparent father had filed a paternity case.In both instances, the men say they want to raise their children, but lost their parental rights for failing to sign up with a state data bank that notifies them when the mother consents to adoption." By John Cote, South Florida Sun-Sentinel Link to Article (last visited 3-19-06 NVS)

Case Law Developments: Acceptance of Child Support Requires Dismissal of Appeal Contesting Parentage

The Supreme Court of Delaware held that Mother's action to establish child support and acceptance of support payments from her partner required dismissal of the appeal from the trial court's award of joint custody.  The disputing parents in this case are two women who, during the course of their nine-year relationship bore four children by artificial insemination from the same anonymous donor.  One mother gave birth to triplets and several years later, the other mother had a daughter.  The couple and the four children lived together until 2003, when the couple decided they could no longer live together.  They agreed that the triplet's biological Mother would be the residential parent of the four minor children, with generous visitation for the biological Mother of the youngest daughter. After a few months, Mother of the youngest indicated that she would not abide by the agreement and took custody of the triplets. 

In resolving the dispute, the trial court awarded both mothers joint custody, finding that the mother of the youngest daughter was a de facto parent to the triplets.  The triplet's biological mother filed for child support and also appealed the trial court's action.  The court of appeals determined that it need not reach the issue of whether Delaware recognized de facto parent status because the acceptance of benefits doctrine required dismissal of the appeal. "The "acceptance of the benefits" doctrine provides that an appeal from a judgment is prohibited when the appellant has voluntarily accepted benefits from that judgment."

Smith v. Smith, 2006 Del. LEXIS 113 (March 7, 2006)
Opinion on the web (last visited March 8, 2006 bgf)

Chinese Mom Must Pay Dad for False Paternity

A Beijing, China court  recently ordered a woman to pay 25,000 yuan (US $3,100) in compensation to her ex-husband for having a son by another man — and passing him off as her husband's son. The woman gave birth to a boy soon after she married her husband who believed he was the father. He didn't learn otherwise until last year when his wife filed for divorce. Source:  ShanghaiDaily.com. For the complete story, please click here (last visited February 11, 2006, reo.)

Case Law Development: Failure to Inform Father of Possible Doubts as to Paternity Constitutes Fraud so as to Prevent Application of Paternity by Estoppel

The Pennsylvania Superior Court reversed a trial court's judgment of paternity in a case involving an unmarried man who had accepted his paramour's child as his own and paid support for about a year and a half, at which point, at the urging of his fiance' and friends, he obtained a DNA test and discovered that he was not the child's biological father.  The trial court held that he was estopped from denying paternity. 

On appeal, the court reversed, holding that, because Mother had never told the alleged father that she had been having sexual relations with another man during their seven-year-relationship, there was sufficient proof of fraud that the doctrine of paternity by estoppel should not apply. The court's observed that: "Clearly, Mother is holding all the cards here; only she knew that another man might be the biological father and only she could inform Gatti. The mother is the only one who knows who the possible fathers are, at least until a paternity test is done. Mother's failure to provide Gatti with the information that only she knew, and which she knew if she divulged would provide Gatti with a clear understanding of the matter, lulled him into believing he was the father. Mother concealed that which should have been disclosed, and Gatti acted accordingly. The trial court noted that Mother might have thought the child was most likely Gatti's rather than the other man she was having relations with. However, she was the one that knew she was having relations with someone else and never revealed it to Gatti. This constitutes fraud or at least misrepresentation..."

The dissent agreed with the trial court that these facts were insufficient grounds for fraud.

Gebler v. Gatti, 2006 PA Super 19; 2006 Pa. Super. LEXIS 47 (February 2, 2006)

Case Law Development: Ohio Courts Uphold Constitutionality of Statutes Provided Expanded Relief from Paternity Judgments

The Ohio Supreme Court reversed a trial court's dismissal of an action for relief from paternity judgment.  The trial court had held that the Ohio statute allowing for such actions was unconstitutional because it infringed upon the exclusive authority of the Ohio Supreme Court to prescribe procedural rules for Ohio courts. The Supreme Court found that the statute established a substantive right, not a procedural right, and thus was not an unconstitutional infringement on judicial procedural authority.

The statute in question provided a right to seek relief from a paternity judgment based on genetic testing, even though the judgment would not otherwise be subject to attack under Rule 60 of the Ohio rules of procedure.  The Ohio Supreme Court held the statute created a substantive right and did not unconstitutionally infringe on the court's rulemaking authority.  The court noted that the general assembly had enacted the statute to "make it less likely that a person would be forced to support a child that is not his." Thus, the court concluded, although the statute is "necessarily packaged in procedural wrapping, it is clear to us that the General Assembly intended to create a substantive right to address potential injustice."

State ex rel. Loyd v. Lovelady, 108 Ohio St. 3d 86; 2006 Ohio 161; 2006 Ohio LEXIS 218
(February 1, 2006)

Utah Bill Would Give Out-of-State Dads 20 days to Begin Paternity Proceedings

Legislation being considered by the Utah Legislature would set time limits for out-of-state, unmarried fathers to oppose their children's adoption. The proposal, which passed the Utah House Health and Human Services Committee Tuesday, would give out-of-state dads 20 days after learning a mother has come to Utah to begin paternity proceedings here. If the father doesn't discover the mother's whereabouts until after she has already consented to the adoption, he must follow the laws of the mother's home state to challenge the adoption. Source:  Elizabeth Neff, Salt Lake Tribune, sltrib.com. For the complete story, please click here (last visited February 4, 2006, reo).  A copy of the proposed bill, Utah HB 130, may be found here.

South Dakota Legislators Debate Insurance Coverage of Contraceptives

South Dakota legislators began a debate on Thursday over whether insurance companies in that state should be compelled to pay for contraceptives if those firms cover other prescription drugs. Those supporting the measure, argue that it is discriminatory for firms who provide drugs for male impotence to not provide coverage for contraceptives that women use. It was also argued that preventing pregnancies would cost insurance companies far less than paying for births.  Source:  Joe Kafka, AP, Rapid City Journal, rapidcityjournal.com. For the complete story, please click here (last visited January 29, 2006,

Germany Concerned over Birth Rate – One of Europe’s Lowest

German politicians are debating what to do to encourage reluctant couples to breed after newly released figures showed Germany with the world's highest proportion of childless women. According to European Union statistics from 2005, thirty per cent of German women have not had children. Forty percent of female graduates not have children. Germany’s family minister, Ursula von der Leyen, said that unless the birth rate picked up the country would have to “turn the light out”. Germany's birth rate is one of the lowest in Europe with an average of 1.37 children per woman, compared with 1.75 in Sweden and 1.74 in the UK. German mothers are also the oldest - with an average age of 30 for a first child - and most parents opt for only one or two children. Source:  Luke Harding, Guardian Unlimited, guardian.co.uk. For the complete story, please click here (last visited January 29, 2006, reo).

Egyptian Court Rules a Positive DNA Test Not Sufficient to Prove Popular Actor is Father of Child

An Egyptian family court judge ruled on Thursday that a positive DNA test was not enough to prove that a popular actor was the father of her baby girl. The court refused the mother’s request that the actor be recognized as the girl’s father, saying that while the test showed he was, the mother could not produce proof that they had had a secret, informal marriage. The paternity suit against the young TV star raised a scandal in Egypt, when the mother went public last year with her intention to bear a child as a single mother and would try to prove that the actor, who has also hosted religious programs directed to youth, was the father of a child now 15 months old. Source:  AP, Khaleej Times Online, khaleejtimes.com. For the complete story, please click here (last visited January 28, 2006, reo).

Walk-in DNA Testing in Scotland

"The first walk-in DNA clinic in Scotland has opened, offering paternity and maternity test results within a week. For £199, it offers accurate "peace of mind" results presented by trained counsellors.The Aberdeen clinic, one of a series across the UK, is the brainchild of Nichola Lawton and Kellie McLoughlin who graduated from university in Liverpool with degrees in medical science and established Sequence Biotechnologies.
They were concerned that people using one of the rapidly increasing number of internet companies for DNA tests were not receiving the counselling which they