Family Law Prof Blog

Case Law Development: False Statements in Divorce regarding Paternity Do not Equal Extrinsic Fraud on the Court

The Missouri Court of Appeals affirmed a trial court's dismissal of an action claiming extrinsic paternity  fraud regarding children alleged in a 2005 divorce judgment to be born of the marriage.  However, the court found that the dismissal could not properly be based on the doctrines of res judicata and collateral estoppel.

The court reasoned that extrinsic fraud may be a basis for reopening a judgment, but went on to note that the ex-husband's claim here — Wife's false averments in a divorce petition and her sworn testimony in court regarding his paternity of their two children — was intrinsic fraud only.

Walker v. Walker, Mo. Ct. App., WD69198, (January 13, 2009)

opinion online (last visited January 21, 2009)

Teen Pregnancy

Family Law Prof Blog previously drew your attention to an interesting op-ed by two Family Law Prof colleagues, June Carbone of University of Missouri-Kansas City and Naomi Cahn of George Washington University, in STLtoday.com, from St. Louis.  (September 5, 2008).

Now The New Yorker's November 3, 2008 issue features Margaret Talbot's article, Red Sex, Blue Sex: Why do so many evangelical teen-agers become pregnant, quoting from Naomi Cahn and June Carbone.  Talbot writes:

Two family-law scholars, Naomi Cahn, of George Washington University, and June Carbone, of the University of Missouri at Kansas City, are writing a book on the subject, and they argue that “red families” and “blue families” are “living different lives, with different moral imperatives.” (They emphasize that the Republican-Democrat divide is less important than the higher concentration of “moral-values voters” in red states.) In 2004, the states with the highest divorce rates were Nevada, Arkansas, Wyoming, Idaho, and West Virginia (all red states in the 2004 election); those with the lowest were Illinois, Massachusetts, Iowa, Minnesota, and New Jersey. The highest teen-pregnancy rates were in Nevada, Arizona, Mississippi, New Mexico, and Texas (all red); the lowest were in North Dakota, Vermont, New Hampshire, Minnesota, and Maine (blue except for North Dakota). “The ‘blue states’ of the Northeast and Mid-Atlantic have lower teen birthrates, higher use of abortion, and lower percentages of teen births within marriage,” Cahn and Carbone observe. They also note that people start families earlier in red states—in part because they are more inclined to deal with an unplanned pregnancy by marrying rather than by seeking an abortion.

It's great to see Family Law Profs being part of this important conversation!

RR

Political Platforms on Family Law Issues

The political parties are in the process of drafting their national party platforms for the 2008 election and, as expected, there is some attention to family law issues.

The draft 2008 Democratic National Platform is interesting both for what it says and what it does not say.  A section on "fatherhood" states that "too many fathers are missing."  The party supports "removing tax penalties on married families and expanding maternity and paternity benefits," as well as rewarding those "who are responsibly supporting their children by giving them a tax credit" and will "crack down on men who avoid child support payments" and "ensure that payments go directly to families instead of bureaucracies." (page 44 lines 34-44).  There is a section on "empowering families" with an extensive discussion of policies on health care, employment, "work and family," and women.  Of particular interest is a pledge to "expand the Family and Medical Leave Act" to "enable workers to take leave to care for an elderly parent, address domestic violence, or attend a parent-teacher conference," and to work with states to make leave paid rather than unpaid.  (page 10 lines 31-35).  In a subsection entitled "Choice" the platform provides: "The Democratic Party strongly and unequivocally supports Roe v. Wade and a woman's right to choose a safe and legal abortion, regardless of ability to pay, and we oppose any and all efforts to weaken or undermine that right."  There is also strong support for "access to affordable family planning services and comprehensive age-appropriate sex education," and a mention of "caring adoption programs." (page 45 line 19-31).  There is also this single line: "We oppose the Defense of Marriage Act and all attempts to use this issue to divide us."  (page 47 lines 8-9).

The draft of the 2008 Democratic National Platform, in pdf format from CNN/TIME, is available here.

The Republican National Platform Committee is apparently still in progress - - - the committee is soliciting input for its 2008 platform here.

The draft of the 2008 Green Party Platform includes a section on youth, a call for equality regardless of sexual orientation and gender identity in civil marriage and child custody, a section on protecting abortion and contraception (specifically including the "morning after pill") and is available here.

The 2008 Constitution Party Platform calls for to the government to "secure and to safeguard the lives of the pre-born."  The platform opposes "government funding of 'partner' benefits for unmarried individuals," "any legal recognition of homosexual unions," and "efforts to legalize adoption of children by homosexual singles or couples," and is available here.

(RR  August 16, 2008)

Case Law Development: Paternity Acknowledgment and Child Support Order = Parent Status

The New Hampshire Supreme Court, interpreting the word "parent" in its custody statute, found that a trial court erred in dismissing a man's petition for parental rights and responsibilities of the six-year-old child he had helped raise since birth, despite the fact that the DNA testing ordered at mother's request showed that he was not the biological father.  The man had signed an acknowledgment of paternity at the hospital when the child was born and later had a child support order entered against him.  The New Hampshire Court held that this was sufficient to make his a parent entitled to bring an action for parenting time.

In the Matter of J.B. and J.G., (New Hampshire Sup. Ct. August 6, 2008)
Read the opinion online (last visited August 14, 2008 bgf)

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)