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)
Saturday, February 4, 2006
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.
Sunday, January 29, 2006
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,
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).
Saturday, January 28, 2006
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).
Monday, January 23, 2006
"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 felt was vital in many cases.
"We realised that, when people just received a letter with a life-changing result in it, they found it hard to accept that result and have confidence in it," said Ms Lawton.
"At our clinics it is explained and shown to them by trained counsellors." By Graeme Smith, The Herald Link to Article (last visted 1-22-06 NVS)
"The county coroner's office in Cleveland wants to get a side business going for living people. Cuyahoga County Coroner Elizabeth Balraj says money is tight in the county, so her agency will try to bring in extra revenue by offering DNA paternity tests. The tests will cost $350 each, and an ad now appears on the coroner's Web site." By The Associated Press, Link to Article (last visted 1-22-06 NVS)
See the Cuyahoga County Coroner's website Link to Website (last visited 1-22-06 NVS)
Tuesday, January 3, 2006
The Hawai'i Supreme Court held that a father's challenges to that state's Uniform Parentage Act were "palpably without merit and long ago put to rest by well-settled precedent." Father had argued that the HUPA is unconstitutional because it violates his rights to privacy and equal protection, in that a mother has a right to an abortion but a father does not have an equivalent right to terminate his parentage upon discovering a pregnancy. He also argued that, as a full time student, the court's order of $50 a month child support violated his constitutional right to be free from compulsory service. In rejecting each of these arguments, the court noted that "each of these contentions has been determined to be frivolous or manifestly without merit by other courts."
The court concluded that an award of attorneys fees as sanction for a frivolous appeal was justified, noting, "The allegedly penurious father, unable to afford $ 50 per month to support his child, commanded his attorney to doggedly pursue an appeal with no chance of success, file numerous pointless motions, and force the state to expend large amounts of taxpayers' money to defend the child support regime from meritless attacks."
Child Support Enforcement Agency v. Doe, 2005 Haw. LEXIS 651 (December 27, 2005)
Opinion on the web at http://www.courts.state.hi.us/page_server/LegalReferences/73DFB8859867A628EAE7AB3DC5.html (last visited January 2, 2006 bgf)
Sunday, January 1, 2006
A new Colorado law that takes effect January 1 limits the use of genetic tests to determine paternity. The new law forbids use of the test after a separation or divorce decree has been legally entered. Colorado Legislators who sponsored the new law said it is intended to protect children. They point to a case where a man had tried to use a genetic test to dodge child support. Lawmakers also worried that the paternity tests might be used in custody battles and believe the law will make life for children less disruptive. Source: DenverPost.com. Link to article (last visited January 1, 2006, reo).
In Parker v. Parker, (see December 2, 2005 Case Law Development posting) the Florida District Court of Appeal, Fourth District, held that a man can, against his will, be deemed a father and obliged to support a child born to his wife during their marriage, despite the fact that the two have no biological or adoptive relationship. The father, who was ordered to pay $1,200 per month in child support for a child born during his marriage who was three and a half years old when he divorced the child’s mother, failed to bring a paternity action until after the child’s fifth birthday. Although genetic testing conclusively established the father did not have a biological link to the child, the Appeals’ court was unwilling to upset the martial presumption of legitimacy.
A detailed commentary regarding this case can be found in an article written by Hoffstra Law School Professor Joanna Grossman, which appeared this past Tuesday on the FindLaw.com Internet site. Source: Professor Joanna Grossman, FindLaw’s Legal Commentary, writ.news.findlaw.com. For the complete commentary, please click here (last visited January 1, 2006, reo). The decision by the District Court of Appeal of the State of Florida, Fourth District, can be found here (last visited January 1, 2006, reo).
Sunday, December 18, 2005
While estoppel in paternity actions is a fairly common claim, it is usually raised to estop a father's denial of paternity. The Pennsylvania Superior Court has now applied the doctrine of estoppel to prevent a father from asserting his paternity. The court held that a man who waited eight years before seeking to form a paternal relationship has forfeited any right to demand a paternity test or assert parental rights, even though the fact of his biological connection to the child is undisputed.
Buccieri v. Campagna, 2005 PA Super 403, 2005 Pa. Super. LEXIS 4176 (December 7, 2005)
The case is reported by Asher Hawkins of the The Legal Intelligencer The opinion is on the web at http://www.superior.court.state.pa.us/opinions/A35036_05.PDF (last visited December 14, 2005 bgf)
Wednesday, December 7, 2005
Michael Jackson’s ex-wife, Debbie Rowe - who was married to the singer from 1996 until 1999 - is quoted in Ireland's Sunday World newspaper as saying: "Michael knows the truth - that he is not the natural father of Prince Michael Jr and Paris. He has to come clean" She added: "I have no information whatsoever about the identity of the semen donor for either child as such (semen) was obtained anonymously from a semen bank under an agreement of confidentiality" Source: FemaleFirstco.uk. Mr. Jackson’s representatives are yet to comment on the claim. For more information, please click here (last visited December 7, 2005, reo).
Friday, December 2, 2005
Case Law Development: Fraud as to Paternity of Child must be Raised within One Year of Divorce Decree
The Florida Court of Appeals provides a scholarly decision holding that Mother's failure to disclose in a divorce proceeding that the child born to the marriage was not the biological child of Father was intrinsic fraud which Father must raise within one year of the judgment or otherwise be barred by res judicata. The court reviewed the caselaw of other jurisdictions, collecting some of the most memorable quotes on the subject, and provided a careful analysis of the public policy choices, citing Professor Theresa Glennon's article, Expendable Children: Defining Belonging in a Broken World, 8 Duke J. Gender L. & Policy 269, 275(2001)).
Parker v. Parker, 2005 Fla. App. LEXIS 18804 (November 30, 2005)
Opinion on the web at http://www.4dca.org/opfrm.html (last visited December 1, 2005 bgf)
Sunday, November 27, 2005
According to a story in the Sunday Mail, one in six women who go to the Child Support Agency in England named the wrong man as the father of their child. DNA paternity tests, which cost around £300 and are carried out by the CSA, have revealed that in 3034 cases the man named as dad turned out not to be the biological father. Figures secured through the Freedom of Information Act show that since tests began in 1998, 15,909 DNA tests have been made. The number of tests carried out for the CSA has fallen over the years but the proportion of false claims is consistent. Source: sundaymail.co.uk. Please click here for additional information (last visited November 27, 2005, reo).
Tuesday, November 22, 2005
In this case before the Arkansas Supreme Court, Mother died when her daughter was sixteen years old and the girl was then cared for by her Aunt. At Aunt's request, the state child support enforcement agency then brought a paternity and child support action against Father. After genetic testing, the trial court entered a paternity finding and ordered the payment of child support retroactive to Mother's death. The Arkansas Supreme Court affirmed, holding that Aunt's testimony in corroboration of the genetic testing evidence was appropriate. If a mother is alive, she is required to give corroborating testimony regarding access during the probable period of conception to make a prima facie case of paternity. However, the court noted, when the mother is deceased the statute requires only "corroborating testimony concerning the conception, birth, and history of the child" in order to state a prima facie case of paternity. Moreover, the court held that Father's laches defense had no merit because Aunt had taken steps as soon as she had custody of daughter to obtain support on her behalf and the trial court had ordered support retroactive only to Mother's death.
Watt v. Office of Child Support Enforcement, 2005 Ark. LEXIS 718 (November 17, 2005)
Opinion on the web at http://courts.state.ar.us/opinions/2005b/20051117/05-131.html (last visited November 21, 2005 bgf)
Wednesday, November 16, 2005
An appeals court in Argentina has ruled that DNA be extracted from the corpse of former president Juan Peron to investigate a woman's claim that he is her biological father, a court official said. The order came in the 12-year-old case of Martha Holgado, 71, who in 1993 claimed that her mother, Cecilia Demarchi, had a secret relationship with the three-time president while he was married to his first wife, Aurelia Tizon. The appeals court rejected a move by Peron's third wife, Maria Estela 'Isabel' Martinez, to block a lower court's order that a DNA sample be obtained for analysis. Peron was president from 1946 to 1955 and then from 1973 to his death in 1974. Peron is believed to have left behind a multi-million-dollar fortune. Source. (AFP) Yahoo.com. For the complete story, please click here (last visited November 16, 2005, reo).
Sunday, November 13, 2005
The Iowa Court of Appeals held that the state paternity statute implicitely gives a trial court jurisdiction to order that a child be given Father's surname. The court noted that, technically, these actions do not involve a name "change" simply because Mother has given the child a name on the birth certificant. "When a parent unilaterally chooses a child's name, the other parent may request the court to examine the name issue--as the mother does not have the absolute right to name the child because of custody due to birth. Consequently, she should gain no advantage from her unilateral act in naming the child." (internal quotations omitted). The court ordered that the 14-month-old child should be given Father's surname as Mother was planning on remarrying and changing her name.
Montgomery v. Wells, 2005 Iowa App. LEXIS 1335 (November 9, 2005)
Opinion on the web at http://www.judicial.state.ia.us/appeals/opinions/20051109/04-1853.asp (last visited November 11, 2005 bgf)