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).
Saturday, April 8, 2006
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).
Friday, April 7, 2006
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)
Monday, March 20, 2006
"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)
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)
"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)
Friday, March 10, 2006
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)
Saturday, February 11, 2006
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.)
Tuesday, February 7, 2006
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)