Tuesday, February 7, 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)
Saturday, November 5, 2005
Groundbreaking legislation that would allow a child to sue its mother for injuries suffered in the womb is raising worries for insurance providers and the pro-choice lobby. Alberta Justice Minister Ron Stevens plans to introduce a bill later this month that would create an exception to current Canadian law. But he cautions the Alberta law will be narrowly restricted to cover children who were hurt in motor vehicle accidents, and the liability will be limited to the amount of the mother's insurance policy. The move stems from the case of Brooklynn Rewega, who was born with brain damage, blindness and cerebral palsy after her pregnant mother lost control of her car and crashed it. "If that accident had occurred and any other party was driving or was responsible, there would be a remedy for that child for injuries arising out of the accident," Stevens said Thursday. "What we are doing in the legislation that we will be bringing forward is providing a potential remedy for that child in those circumstances." Source. News from Canadian Press, Lorraine Turchansky, news.yahoo.com. Please click here for addition information (last visted November 5, 2005, reo).
Friday, November 4, 2005
The Washington Supreme Court has adopted the de facto parent doctrine in a case involving a same-sex couple who ended their relationship when the they had been raising together was five years old. The child had been conceived by artificial insemination and the birth mother had denied her former partner access to the child after the break up. The partner sued, asking for a determination of parentage under the UPA, or as a de facto parent, or, in the alternative, for third-party visitation rights. The Supreme Court of Washigton found no standing under the UPA. However, exercising its equitable power, the court established a common law claim of de facto parentage separate from the UPA and concluded that establishing this claim was not an unconstitutional infringement on the parental rights of fit biological parents. One judge dissented on the basis that the UPA provided the sole avenue for establishing paternity.
Carvin v. Britain, 2005 Wash. LEXIS 861 (November 3, 2005)
Opinion on the web at http://www.courts.wa.gov/opinions/?fa=opinions.opindisp&docid=756261MAJ (last visited November 4, 2005 bgf)
Case Law Development: Termination of Presumed Father's Parental Rights Does Not Provide Biological Father Right to Assert Untimely Paternity Petition
Texas statutes provide that, where a presumed father exists, an action brought to establish paternity in one other than the presumed father must be brought within four years of the child's birth. Where no presumed father exists, no such time limitation applies. In this case, the court had terminated the parental rights of Mother and Presumed Father (to whom Mother was married when child was born). Biological Father then brought an action to establish his paternity, which the trial court dismissed as being time barred, as it was brought after four years. Biological father argued that the four-year limitation was unconstitutional and should not apply to his situation because there no longer was a presumed father, given the prior termination order. The Texas Court of Appeals affirmed, but noted that the purpose of the limitation was "to limit the time in which to establish a parent-child relationship when there is a presumptive father so as to protect the family unit. Here, there was no longer a family unit to protect once the parental rights of [Presumed Father] and [Mother] were terminated.... Nevertheless, because [Presumed Father] remains [child's] presumptive father in spite of his parental rights having been terminated, the current law leaves a biological father... with no greater ability to establish a parent-child relationship or be appointed as conservator than any stranger to the relationship. These facts raise an issue inviting legislative review."
In the Interest of S.C.L., 2005 Tex. App. LEXIS 8934 (October 31, 2005)
Opinion on the web at http://www.5thcoa.courts.state.tx.us/cgi-bin/as_web.exe?c05_06.ask+D+1519427 (last visited November 2, 2005 bgf)