Friday, February 9, 2007
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)
Sunday, January 21, 2007
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)
Tuesday, December 12, 2006
"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)
Monday, October 30, 2006
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)
Thursday, October 5, 2006
"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)
Wednesday, October 4, 2006
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.
Wednesday, August 30, 2006
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)
Friday, July 28, 2006
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)
Wednesday, July 26, 2006
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)
Tuesday, June 20, 2006
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)
Monday, June 19, 2006
"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)
Sunday, June 11, 2006
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).
Saturday, June 3, 2006
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).
Wednesday, May 31, 2006
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).
Wednesday, May 24, 2006
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).
Tuesday, May 23, 2006
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)
Sunday, May 14, 2006
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).
Thursday, May 11, 2006
"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)
Sunday, May 7, 2006
Case Law Development: Ohio Court of Appeals Says Woman Claiming Priest Impregnated Her 40 Years Ago May Proceed with Action against Archdiocese
The Ohio 1st 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).
Sunday, April 23, 2006
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).