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In re TKY

plaintiff’s action was barred by both the language of the Paternity Act, MCL 722.711 et seq., and

filed this suit to establish his paternity under the Paternity Act, MCL 722.711 et seq.

controlling precedents. In Girard v Wagenmaker, 437 Mich 231, 237; 470 NW2d 372 (1991),

1 The Girard Court also noted a provision in the statute providing that “the father or putative father of a child born out of wedlock may file a complaint in the circuit court . . . .” Id. That

not the issue of that marriage.” MCL 722.711(a). Because the facts in Girard clearly indicated

two options under the definition was unavailable to the plaintiff. Id. at 242.This Court came to the same conclusion in Spielmaker v Lee, 205 Mich App 51, 58; 517

requirement under the Paternity Act” to prevent suits like plaintiff’s. McHone v Sosnowski, 239

Hauser v Reilly, 212 Mich App 184, 190-191; 536 NW2d 865 (1995);and Spielmaker, supra at 59-60.

of the timing of the action.2 In situations like that presented here, a child is not born out of

2 We note that the Paternity Act provides that “[a]n action . . . may be commenced during the

plaintiff to the Legislature for any relief that might be forthcoming. See, e.g., Hauser, supra at

3 Plaintiff also suggests there may be equal protection or due process problems with the statute

cite any authority or argument in support, we will not consider them. In re BKD, 246 Mich App 212, 218; 631 NW2d 353 (2001); Prince v MacDonald, 237 Mich App 186, 197; 602 NW2d 834

“Respondent Rigg”) affirms that he is QR’s biological father1. On May 2, 1997, a Petition

father.”2 On May 30, 1997, a juvenile court officer filed a motion to review custody as regards

Decisions to terminate parental rights are reviewed for clear error. In re Sours, 459 Mich

1 Although Respondent Graham and Respondent Rigg both claim that Respondent Rigg is QR’s

2 The initial petition also named “Scott” as a putative father. The fourth father was not

establishing same. Because this is an important issue, we deem it necessary to raise, sua sponte,

3 See McHone v Sosnowski, 239 Mich App 674; 609 NW2d 844 (2000)(holding that the

Rigg’s rights as the “putative father.”4 Since Respondent Graham’s marriage to Jack Graham

biological connection between the “putative father” and the minor child. McHone v Sosnowski,

4 During the termination hearing, the Court specifically addressed Appellant Rigg’s legal status

BEFORE: BARBER AND TAYLOR, JUDGES; BUCKINGHAM,1 SENIOR JUDGE.

1 Senior Judge David C. Buckingham sitting as Special Judge by assignment of

application of KRS2 406.011 and KRS 406.111. KRS 406.011

marriage bond – not the paternity of a child.” Id.3 Finally, the

4 Ren has cited several other cases from other jurisdictions that support the

Judgment rendered September 20, 2006.Application for rehearing may be filedwithin the delay allowed by art. 2166,
La. C.C.P.No. 41,288-CACOURT OF APPEALSECOND CIRCUITSTATE OF
LOUISIANA* * * * *DAVID LEWIS STATEN, JR. Plaintiff-AppellantversusBRUCE EDWARD BROWN Defendant-Appellee* * * * *Appealed from theFourth Judicial District Court for theParish of
Ouachita, LouisianaTrial Court No. 05-1839Honorable
Hamilton Stephens Winters, Judge* * * * *FEWELL-KITCHENS Counsel forBy: Richard L. Fewell, Jr. AppellantPAUL HENRY KIDD, JR. Counsel forAppellee* * * * *Before CARAWAY, DREW and MOORE, JJ.DREW, J.:DLS sought to establish his paternity of two children born to YFBduring her marriage to BEB. DLS appealed a judgment which found thathis paternity claim as to the older child was barred by prescription orperemption, and that La. C.C. art. 191 (since replaced by La. C.C. art. 198)did not offend due process and was constitutional. On appeal, DLScontends the trial court erred in ruling that his action to establish hispaternity of the older child had prescribed and that former C.C. art. 191 wasconstitutional. For the following reasons, the judgment of the trial court isaffirmed.BACKGROUNDIn his petition to establish his paternity, DLS alleged:• SWB and TEB were born during the marriage of YFB and BEB.• The mother died of an aneurysm on December 4, 2004.• 2005 DNA testing concluded the probability of DLS’s paternity of thetwo children was well over 99%.• A maternal aunt had physical custody of the children.• Under
La. R.S. 9:296, DLS sought additional DNA testing of BEB.• DLS requested that once paternity was established, the court granthim custody of the children.Relying on C.C. art. 191, BEB responded to DLS’s action with anexception of prescription and/or peremption as to DLS’s claim concerningthe older child. By joint motion, the parties supplemented the appellaterecord with the deposition of DLS taken July 8, 2005, and filed at the trialcourt hearing on December 12, 2005.2In the deposition, DLS stated he first met the mother in 2000 whileshe was living with her husband, BEB. DLS and the mother began theirsexual relationship in December 2000 after which he saw her everyweekend. DLS acknowledged that when YFB became pregnant and duringher first pregnancy, she lived with her husband. After the first baby wasborn, she and DLS lived at her friend’s home. He stated he also saw thechildren after their births at her grandmother’s house where the mother’saunt also lived. DLS said that while the mother was separated from BEB,DLS and the mother “stayed together” at the Town and Country off JenniferLane at the home of the mother’s best friend from fall 2002 until aboutsummer 2004.The mother told him she was pregnant in July 2002 which heremembered because they had just returned from the Essence Festival in
New Orleans. DLS was positive the older child was his because the mothertold him she and her husband were not having sexual relations. She wascontinuing to live with her husband at the time the first child was born.DLS stated he visited the hospital and saw the baby the day after he wasborn.DLS described the mother as kind of angry about the secondpregnancy. Although the deposition twice showed DLS nodded his headaffirmatively when asked if the mother was living with her husband duringthe second pregnancy, DLS contradicted himself by stating she never livedwith her husband following the birth of the older child. Although DLS andthe mother stopped living together in July 2004 when finances became a3problem, DLS stated they continued their sexual relationship after themother moved to her grandmother’s home.DLS explained that he did not pursue his claim of fatherhood earlierbecause he did not want to jeopardize the children’s benefits. After themother died, DLS stated that the husband let the children stay with amaternal aunt two or three days a week until BEB was off work. DLS sawthe children when they were with the aunt. In DLS’s opinion, BEB thoughthimself to be the older child’s father but suspected he might not be thefather of his wife’s second child. DLS said he would not exclude BEB fromthe lives of the children and would not have a problem with a set weekendvisitation. He acknowledged that if the second set of DNA tests showed thechildren had different fathers, DLS would cease his efforts because hewould not separate the children. DLS said the children’s Social Securitybenefit was $1200 a month.TIMELINEEarlier Date YFB and BEB married.December 2000 DLS and YFB begin sexual relationship.December 19, 2002 SWB born.June 25, 2004 Effective date of Act 530 of 2004
LouisianaLegislature enacting La. C. C. art 191 which statedin §3 that the provisions of the act “shall beapplied both prospectively and retroactively andshall be applied to all pending and existingclaims.”Former
La. C.C. art. 191 stated:A. A man may establish his paternity of a childpresumed to be the child of another man even though thepresumption has not been rebutted.4B. This action shall be instituted within two years fromthe date of the birth of the child, except as may otherwise beprovided by law. Nonetheless, if the mother in bad faithdeceives the father of the child regarding his paternity, theaction shall be instituted within one year from the date thefather knew or should have known of his paternity, but no morethan ten years from the date of birth of the child.August 31, 2004 TEB born.December 4, 2004 YFB died.April 20, 2005 DLS filed paternity action.June 29, 2005 Effective date of La. C.C. art. 198, which states:A man may institute an action to establish his paternity of achild at any time except as provided in this Article. The action isstrictly personal.If the child is presumed to be the child of another man, theaction shall be instituted within one year from the day of the birth ofthe child. Nevertheless, if the mother in bad faith deceived the fatherof the child regarding his paternity, the action shall be institutedwithin one year from the day the father knew or should have knownof his paternity, or within ten years from the day of the birth of thechild, whichever first occurs.In all cases, the action shall be instituted no later than one yearfrom the day of the death of the child.The time periods in this Article are peremptive.In T.D. v. M.M.M., 98-0167 (
La. 3/2/99), 730 So. 2d 873, a manasserted his paternity of a child legally presumed to be the child of thehusband of the child’s mother. The supreme court discussed the law ofestablishing paternity prior to the enactment of Civil Code articles settingtime limitations on avowal actions. Seeking recognition of his paternity,joint custody and visitation, the biological father intervened in December1994 in a custody dispute between the mother and her husband during theirdivorce proceedings. The child was conceived during an adulterous affair5in March 1988 which continued after the birth of the child. The biologicalfather visited with the mother and child and suspected he was the father.The mother curbed her paramour’s visitation during her separation from herhusband. Paternity testing done in April 1993 showed in June 1993 a 99.5%probability that the paramour was the father. In November 1993 the motherended the affair and thereafter denied the biological father access to thechild.The appellate court dismissed the biological father’s interventionbased upon the common law concept of laches, the purpose of which is toprevent an injustice resulting from seeking to enforce long neglected rightsdifficult to enforce as a result of the delay. The supreme court reversed,noting that common law concept of laches is used in
Louisiana only in rareand extraordinary circumstances. There was no prescriptive statuteapplicable to the father’s effort to avow his biological child. First, the courtfound that no prejudice occurred as a result of the delay in bringing theaction, since the father would have contact with the child only if the courtfound that was in the child’s best interest. Moreover, the father’s delay inbringing the action resulted at least in part from the actions of the motherwho attempted to thwart visitation only after the affair finally ended. Therare and extraordinary circumstances required to apply laches were notpresent. The matter was remanded for a determination of the best interestsof the child.In a concurrence, Justice Knoll pointed out that a biological father’ssubstantive rights to conceive and rear a child are not violated by6application of a “best interest of the child” determination. The justiceopined that the fact that a biological father is thwarted from exercisingparental rights while the mother is married to another man is notconstitutionally offensive because the balance of competing interests tips infavor of preserving the family unit.In
Louisiana, dual paternity is legally permissible, giving the child thebenefits of filiation to both fathers. Dual paternity allows a child to seeksupport from the biological father notwithstanding that the child wasconceived or born during the mother’s marriage to another man, and istherefore presumed to be the legitimate child of the marriage. A legitimatefather’s status is not affected by an action to establish biological paternity,and a biological father does not escape his support obligations merelybecause a legal father may share the responsibility. State ex rel. Dept. ofSocial Services v. Howard, 2003-2865 (
La. App. 1st Cir. 12/30/04), 898 So.2d 443.In a recent case in which an alleged biological father sought to avowpaternity of a child born during the mother’s marriage to another man, thethird circuit found that applying La. C.C. art. 191 to bar the biologicalfather’s avowal action was an unconstitutional abridgement of his right todue process. W.R.M. v. H.C.V. and M.J.V., 05-425 (
La. App. 3d Cir.3/1/06), 923 So. 2d 911. On June 23, 2006, the supreme court granted writsin the companion case at 05-608 (La. App. 3d Cir. 3/1/06), 923 So. 2d 916,which reversed and remanded for the reasons stated in 923 So. 2d 911. See7W.R.M. v. H.C.V. and M.J.V. 2006-0702 (
La. 6/23/06), 931 So. 2d 1090,which is pending before that court.The relationship between W.R.M. and the mother began in 1992 andthe child was born on September 1, 1994. The mother terminated therelationship in November 2004. In the interim, she divorced her husband inOctober 1996 and W.R.M. filed a petition to establish filiation on July 7,2003.
La. C.C. art. 191 became effective on June 25, 2004, and requiredthat an avowal action be instituted within two years from the birth of thechild, unless the mother deceived the father about his paternity. The thirdcircuit found that at the time W.R.M. filed his avowal action in 2003 he hada vested right to sue to establish his paternity. The court concluded that aretroactive application of art. 191 would be an unconstitutional abridgementof W.R.M.’s right to due process. W.R.M. v. H.C.V. and M.J.V., supra. Aspreviously noted, the matter is pending before the supreme court.Statutes are generally presumed constitutional, and the burden ofproving unconstitutionality is on the challenging party. The legislature canset limits on enforcement of vested rights, provided that the legislatureprovides a reasonable time in which to enforce the vested right. Too short atime period is a denial of justice and “due process.” W.R.M. v. H.C.V. andM.J.V., supra.The
Louisiana legislature made the time limits in art. 191 and thecurrent art. 198 peremptive. The legislature clearly provided that La. C.C.art. 198 is peremptive. The term peremption was not specifically used inart. 191. However, Act 530 of the 2004
Louisiana Legislature, which8enacted both art. 191 and R.S. 9:395.1, stated in 9:395.1 that the two-yearperiod in art. 191 was peremptive. The time limitation of peremption is notsubject to interruption or suspension. Peremption totally destroys thepreviously-existing right with the result that, upon expiration of theprescribed period, a cause of action or substantive right no longer exists tobe enforced. Bunge Corp. v. GATX Corp., 557 So. 2d 1376 (
La. 1990).As noted in pertinent part in Revision Comment (e) to Article 198:Requiring that the biological father institute the avowal actionquickly is intended to protect the child from the upheaval ofsuch litigation and its consequences in circumstances where thechild may actually live in an existing intact family with hismother and presumed father or may have become attached overmany years to the man presumed to be his father.The legislature’s interest in stabilizing the family is reflected by thelegislature’s decision to make the two-year period peremptive rather thanprescriptive.DLS clearly stated at his deposition that he knew he was the father ofboth children immediately on learning of the mother’s pregnancies. Thetrial court specifically found that DLS knew of his paternity and was notdeceived. Under the facts in this case, we cannot conclude that the nearlysix months allowed by retroactive application of art. 191 was anunreasonably short time. Therefore, art. 191 is not unconstitutional asapplied in this case. Because art. 191 was the applicable law in this dispute,it is not necessary to address constitutional questions concerning currentArticle 198.Finally, we note that these two young children who have lost theirmother have a legitimate, legal father, BEB, since they were born during his9marriage to their mother. Whatever the outcome of the various paternitytests, the best interests of these children must be particularly determined insetting any appropriate custody and/or visitation. Stability and notseparating them are factors which weigh heavily in deciding their bestinterests.DECREEWith costs assessed against DLS, the judgment of the trial court isAFFIRMED.1CARAWAY, J., dissenting.The majority sets forth clearly the law before and after the 2004enactment of Civil Code Article 191 (now replaced by Article 198). In June2004, immediately before the enactment of Article 191, DLS was under nospecific time constraint regarding his ability to avow paternity of SWB orTEB, who was to be born two months later. T.D. v. M.M.M., 98-0167 (
La.3/2/99), 730 So. 2d 873. Likewise, at that time, the best interests of thosetwo siblings regarding a relationship with DLS were not subject to anyperemptive period. We are now called upon to set a purely transitionalprescriptive rule for a unique case which has facts that evolved on bothsides of the date of the enactment of Article 191. The majority indicatesagreement with the Third Circuit Court of Appeal that, despite the expressretroactivity language of Article 191, DLS had to be provided with somereasonable time to act after June 25, 2004, regardless of the prior date ofbirth of SWB. If SWB had been born on June 26, 2002, the peremptiveperiod of the statute would not be allowed to make such a sudden divestitureof the parties’ rights one day after its enactment on June 26, 2004. I wouldtherefore fix the time period for DLS to act at one year from the date of theJune 25, 2004 statute as my transitional rule to govern the few cases such asthis that may ever arise. This would be in keeping with the similar one-yearperiods expressed in former Article 191 and new Article 198. Accordingly,I respectfully dissent. 

IN THE SUPREME COURT OF
MISSISSIPPINO. 2004-IA-02429-SCTWILLIAM RUSSELL THOMSv.HANK THOMSDATE OF JUDGMENT: 12/06/2004TRIAL JUDGE: HON. ROBERT L. LANCASTERCOURT FROM WHICH APPEALED: OKTIBBEHA COUNTY
CHANCERYCOURTATTORNEY FOR APPELLANT: MARTY CRAIG ROBERTSONATTORNEY FOR APPELLEE: H. J. DAVIDSON, JR.NATURE OF THE CASE: CIVIL – CUSTODYDISPOSITION: AFFIRMED AND REMANDED- 05/11/2006MOTION FOR REHEARING FILED:MANDATE ISSUED:BEFORE COBB, P.J., CARLSON AND
GRAVES, JJ.COBB, PRESIDING JUSTICE, FOR THE COURT:¶1. This case is before this Court on interlocutory appeal filed by William Russell Thoms(Rusty) from an Order for Genetic Testing entered by the Oktibbeha County Chancery Court.Hank Thoms (Hank), cousin to Rusty, had filed a Petition for Determination of Paternity andfor Other Relief seeking to know whether he was the father of a child whom Rusty had beenraising as his own since birth. The chancery court ordered Hank, the child, and WendyThoms, the natural mother, to submit to genetic testing, and further ordered that if the testRusty and Wendy have another 1 child, who is not included in the underlyingpaternity action.2indicated Hank as the probable father, Rusty must also be tested. Aggrieved, Rusty filed hisinterlocutory appeal, which this Court granted together with a stay of the testing.FACTS AND PROCEDURAL HISTORY¶2. Three suits were filed soon after Rusty learned his wife was having an affair with hiscousin, Hank Thoms, and that one of the children he had been raising as his own, might beHank’s son. The first, an alienation of affection suit filed by Rusty against Hank in RankinCounty
Circuit Court, and the second, a divorce action filed by Rusty against Wendy in the

Oktibbeha County Chancery Court, were still pending at the time of the present interlocutoryappeal arising from the third suit. Rusty argues generally that genetic testing would resultin irreparable injury to one or both of the children1 involved. Specifically, he raises fourissues, asserting that the trial court erred by: (1) entering the order for genetic testing withoutfirst making a determination of the best interests of the child; (2) failing to appoint a guardianad litem before paternity testing; (3) failing to apply the doctrines of clean hands, laches, andequitable estoppel to bar Hank’s request for genetic testing; and (4) requiring Rusty to submitto DNA testing if test results indicate a probability of paternity that Hank is the child’s father.Hank asks only that his right to a paternity test be determined by this Court, and that thepaternity action proceed in the trial court after the test results are known. We affirm the trialcourt and remand for further proceedings consistent with this opinion.3ANALYSISI. Whether the trial court erred when it entered the Order For GeneticTesting before applying the best interest of the child standard.¶3. A Chancellor’s findings are not to be disturbed unless the chancellor is manifestlywrong, clearly erroneous, or an erroneous legal standard was applied.
Ferrara v. Walters,919 So.2d 876, 881 (
Miss. 2005). The standard of review with respect to the chancellor’sdecision to order a paternity test is manifest error. Sanderson v. Sanderson, 824 So. 2d 623,626 (
Miss. 2002).¶4. Rusty first argues that the trial court erred in ordering genetic testing because the courtdid not first engage in fact-finding to determine whether a paternity test would be in thechild’s best interest, invoking the foundational “best interest of the child” rule presentthroughout
Mississippi jurisprudence in cases involving children. He cites Dept. Of HumanServices v. Jones, 627 So. 2d 810, 811 (
Miss. 1993) for this well established rule, butpresents no authority which supports his argument that the best interest determination mustbe made first, before the genetic testing is done. Rusty relies entirely on Griffith v. Pell, 881So. 2d 184 (
Miss. 2004) and the cases cited therein for his assertion that the “best interest”standard be applied before the testing, but his reliance is misplaced, as discussed infra.¶5. Hank responds by pointing out that Miss. Code Ann. Section 93-9-21(2) (Rev. 1999),provides in its entirety, that “[t]he court, on its own motion or on motion of the plaintiff ordefendant, shall order the mother, the alleged father and the child or children to submit togenetic tests and any other tests which reasonably prove or disprove the probability of4paternity.” (Emphasis added.) In Ivy v. Harrington, 644 So. 2d 1218, 1221 (
Miss. 1994),this Court noted that Section 93-9-21 was amended in 1987 to allow a putative father,plaintiff in a paternity action, to move for an order requiring blood tests. The

This opinion is subject to revision before

publication in the Pacific Reporter.

IN THE
UTAH COURT OF APPEALS—-ooOoo—-Kelly F. Pearson,Petitioner and Appellant,v.Kimberlee Y. Pearson,Respondent and Appellee.______________________________Peter D. Thanos,Intervenor and Appellee.))))))))))))))OPINION(For Official Publication)Case No. 20040677-CAF I L E D(March 30, 2006)2006 UT App 128—–Third District, Salt Lake Department, 004907881The Honorable Tyrone MedleyAttorneys: Paige Bigelow,
Salt Lake City, for AppellantSteven H. Gunn, Kellie F. Williams, and Jarrod H.
Jennings,
Salt Lake City, for Appellees—–Before Judges
Greenwood, Orme, and Thorne.THORNE, Judge:¶1 Kelly F. Pearson (Father) appeals from the trial court’ssupplemental decree of divorce awarding joint legal custody ofthe minor child Z.P. to Kimberlee Y. Pearson (Mother) andintervenor Peter D. Thanos. We reverse.BACKGROUND¶2 Father and Mother (collectively the Pearsons) married in1992. In July 1997, the couple had their first child, N.P. Inlate 1998, Mother became pregnant again, and a second son, Z.P.,was born in September 1999.¶3 Unbeknownst to Father, Mother had been involved in aromantic relationship with Thanos beginning sometime in 1996.Mother believed from early on in her pregnancy with Z.P. that1Thanos and Mother married in July 2002, shortly after thetrial court granted Mother’s request to bifurcate this case andentered a decree of divorce between the Pearsons. Thanos andMother subsequently had another child, daughter M.T., whosecustody is not implicated in this case. Also, despite therelationship between Mother and Thanos prior to N.P.’s birth,there is no suggestion that Thanos is N.P.’s biological father.20040677-CA 2Thanos was Z.P.’s biological father. She informed Father abouther affair with Thanos and her belief about Z.P.’s paternity inMarch 1999. Despite Mother’s infidelity, the Pearsons stayedtogether in an attempt to make their marriage work. Fatheragreed to raise Z.P. as his own, and Mother agreed to treatFather as Z.P.’s natural father. Z.P. was born in September1999, and Father was named as Z.P.’s father on his birthcertificate. Father and Mother raised Z.P. together until theyseparated in May 2000. After separation and until the trialcourt’s custody determination, the Pearsons voluntarily sharedphysical custody of Z.P. on a fifty-fifty basis.1¶4 Mother informed Thanos in January 1999 that she believed himto be Z.P.’s biological father. Thanos was unwilling to be knownor recognized as the child’s father and did not provide anymonetary support toward Z.P.’s prenatal care or birth costs.Thanos acquiesced in Father’s role as Z.P.’s father. From birthuntil about January 2001, the first sixteen months of Z.P.’slife, Thanos did not provide any care or support for Z.P. andonly saw him about half a dozen times.¶5 In December 2000, Father initiated divorce proceedings.Thanos moved to intervene in the proceedings in January 2001,claiming that he was Z.P.’s biological father. Concurrently,Mother denied Father’s paternity of Z.P. in her answer and askedthe trial court to declare that Father was not Z.P.’s biologicalfather and that he had no rights of custody or visitation withZ.P. Father opposed both motions. The commissioner hearing thematter determined that Thanos lacked standing to contest Z.P.’spaternity.¶6 Thanos and Mother objected to the commissioner’s standingdecision. The trial court determined that the issue was governedby In re J.W.F., 799 P.2d 710 (
Utah 1990), and that it neededadditional information to adequately address the policyconsiderations set forth in that case. The trial court appointedDr. Jill Sanders to provide the court with an independent2The term “Schoolcraft analysis” refers to the analysis setforth in In re J.W.F., 799 P.2d 710 (
Utah 1990), and is named forthe petitioner in that case. A Schoolcraft analysis determines aperson’s standing to challenge the presumption of legitimacy of achild born into a marriage, based primarily on two policyconsiderations: “preserving the stability of the marriage andprotecting children from disruptive and unnecessary attacks upontheir paternity.”
Id. at 713.3The parental presumption is “the presumption in favor ofawarding custody to a natural parent over a nonparent.”
Davis v.
Davis, 2001 UT App 225,¶1, 29 P.3d 676.20040677-CA 3Schoolcraft analysis.2 Sanders was to address the second prongof the Schoolcraft test–whether permitting Thanos to seekpaternity of Z.P. would be disruptive to Z.P.’s relationship withFather. She concluded that Thanos’s presence in Z.P.’s lifewould not be inherently harmful to Z.P. or to Z.P.’s relationshipwith Father.¶7 After considering Sanders’s conclusions and the Schoolcraftfactors, the trial court granted Thanos’s motion to intervene inNovember 2002. Addressing the first prong of the Schoolcraftanalysis, the trial court concluded that “the interest inpreserving the stability of the [Pearsons'] marriage is not aconsideration, due to the fact that there is no marriage topreserve. The stability was shattered when the parties separatedand [Z.P.] was approximately nine months of age.” As to thesecond prong, the court relied on Sanders’s report to concludethat Thanos’s challenge would not be “disruptive to Z.P. or anunnecessary attack on his paternity,” and was “in the bestinterests of the child.”¶8 Father and Thanos both filed motions for summary judgment onthe issue of Z.P.’s paternity. On May 8, 2003, the trial courtgranted Thanos’s motion and denied Father’s motion. The court’sruling determined Thanos to be the natural, biological, and legalfather of Z.P.¶9 The trial court issued its custody decision on May 11, 2004.Relying on its previous paternity determination, the courtapplied the parental presumption3 in favor of Mother over Fatheras regards to Z.P. The trial court next determined that Thanos’sparental presumption over Father had been rebutted, finding thatfor the first fifteen months of Z.P.’s life, Thanos “did not havea strong mutual bond” with Z.P., “did not demonstrate awillingness to sacrifice his own interests and welfare for[Z.P.], and generally lacked the sympathy for and understanding20040677-CA 4of [Z.P.] that is characteristic of parents generally.” See
Hutchinson v.
Hutchinson, 649 P.2d 38, 41 (
Utah 1982) (listingfactors for rebuttal of parental presumption). Accordingly, thetrial court placed Father and Thanos on an equal footing and madeits custody determination between them based solely on the bestinterests of Z.P. See id.¶10 The trial court granted Mother and Thanos joint legalcustody and primary physical custody of Z.P. Mother and Fatherwere granted joint legal custody of N.P., with primary physicalcustody in Mother. Father was granted “joint physical custodytime” with N.P. and Z.P. The boys rotated between households ona weekly basis, resulting in an approximately equal amount ofphysical custody in each household.¶11 Father appeals from the trial court’s order allowing Thanosto intervene, its grant of summary judgment to Thanos on theissue of Z.P.’s paternity, and its custody determinations to theextent that they relied on Thanos’s paternity, and Father’s nonpaternity,of Z.P.ISSUES AND STANDARDS OF REVIEW¶12 Father raises multiple issues on appeal, but our decisionrests on the question of Thanos’s standing to challenge Z.P.’spaternity. Generally, a person’s standing to request particularrelief presents a question of law.

See
Washington
County WaterConservancy Dist. v. Morgan, 2003 UT 58,¶18, 82 P.3d 1125. Tothe extent that factual findings inform the issue of standing,“‘[w]e review such factual determinations made by a trial courtwith deference.’”
Id. (quoting Kearns-Tribune Corp. v.Wilkinson, 946 P.2d 372, 373-74 (
Utah 1997)). “‘Because of theimportant policy considerations involved in granting or denyingstanding, we closely review trial court determinations of whethera given set of facts fits the legal requirements for standing,granting minimal discretion to the trial court.’”
Id. (quotingKearns-Tribune Corp., 946 P.2d at 374).ANALYSISI. The Schoolcraft Test¶13 The trial court determined that, as of November 2002,Thanos’s challenge to Z.P.’s paternity would not affect thestability of the Pearsons’ failed marriage and would notconstitute a disruptive and unnecessary attack on Z.P.’spaternity. See In re J.W.F., 799 P.2d 710 (
Utah 1990).20040677-CA 5Accordingly, the trial court found that Thanos had standing tochallenge Z.P.’s paternity under the Schoolcraft test.¶14 While we do not necessarily disagree with the trial court’sfactual findings regarding the evolution of the relationshipsbetween Z.P. and the various parties, we determine that Thanoswholly lacked Schoolcraft standing for a substantial period oftime prior to his establishment of a relationship with Z.P. Evenwith the breakup of the Pearsons’ marriage and the development ofa relationship between Z.P. and Thanos, we cannot agree with thetrial court’s conclusion that Thanos satisfied the Schoolcrafttest by November 2002. See id. at 713. Accordingly, wedetermine that the trial court erred in allowing Thanos tointervene in this action.A. Preservation of the Stability of Marriage¶15 The trial court found that “the first prong of theSchoolcraft analysis–relating to preserving the stability of themarriage–was not a consideration in this case, due to the factthat there was no marriage between [Father] and [Mother] to bepreserved.” Although we recognize that a divorce terminates anyparticular marriage and leaves nothing to preserve, we stilldisagree with the trial court’s assumption that the firstSchoolcraft prong loses all relevance upon divorce. Rather, wereview the totality of the circumstances to determine whether aparticular paternity challenge conflicts with the policy goal ofpreserving the stability of the marriage.¶16 The trial court apparently relied on In re J.W.F., 799 P.2d710 (
Utah 1990), to reach its finding that preservation ofmarriage becomes moot upon the divorce or separation of theparties. In that case, Winfield and Linda Schoolcraft weremarried in 1984 and lived together for approximately eight monthsbefore Linda left Winfield. See id. at 712. In November 1985,some seven months to a year after the parties separated, Lindagave birth to J.W.F. Linda abandoned J.W.F. shortly thereafter,and the State initiated abandonment proceedings in December 1985.Upon learning of the child’s birth and the abandonmentproceedings in August 1986, Winfield filed a petition for custodyof J.W.F., arguing that he was married to Linda and living withher at the time of conception. At this time, the parties hadstill not obtained a formal divorce. See id.¶17 The standing issue in In re J.W.F. was whether a guardian adlitem could challenge Winfield’s custody petition and presumedpaternity of J.W.F. The supreme court noted that “the class ofpersons permitted to challenge the presumption of paternityshould be limited.”
Id. at 713. The court then identified two20040677-CA 6“paramount consideration[s]” that must guide standing decisionsin this context: “preserving the stability of the marriage andprotecting children from disruptive and unnecessary attacks upontheir paternity.”
Id. “[W]hether individuals can challenge thepresumption of legitimacy should depend not on their legal statusalone, but on a case-by-case determination of whether theabove-stated policies would be undermined by permitting thechallenge.”
Id.¶18 In In re J.W.F., the parties’ long separation prior to thebirth of J.W.F. led the supreme court to conclude that “[t]hestability of the marriage between Winfield and Linda Schoolcraftwas shaken long ago, and their marriage is one in name only.”
Id. The supreme court permitted a challenge to Winfield’spaternity in these circumstances, deeming it “not inconsistent”with the stated policy of preserving the stability of themarriage. Id. Notably, each of the three cases cited inSchoolcraft in support of this conclusion also involvedsituations where divorce or separation occurred prior to ornearly concurrent with the birth of the child. See Teece v.Teece, 715 P.2d 106, 106 (
Utah 1986) (“In May of 1981, plaintiffgave birth to a child. Soon thereafter, she filed this actionfor divorce.”); Roods v. Roods, 645 P.2d 640, 641 (
Utah 1982)(addressing first husband’s attempt to deny paternity where childwas conceived during his marriage but born into a subsequentmarriage between mother and another man); Lopes v. Lopes, 30
Utah2d 393, 518 P.2d 687, 688 (1974) (addressing paternity questionwhen child was yet “to be born” at the time divorce pleadingswere filed).¶19 By contrast, the Pearsons made substantial efforts tomaintain their marriage even though both parties knew midwaythrough Z.P.’s gestation that Thanos was the likely biologicalfather. The Pearsons disagree about their intent regardingFather’s relationship to Z.P. Father contends that both he andMother agreed that Father would raise Z.P. as his child in allrespects, while Mother asserts only that she agreed to stay andtry to make the marriage work so long as Father would not punishher or Z.P. for her infidelity. The trial court made no findingson the issue, but did find that the Pearsons did not separateuntil Z.P. was approximately nine months old.¶20 While not dispositive of Thanos’s standing, we determinethat the Pearsons’ efforts to maintain their marriage afterZ.P.’s birth remain relevant to the Schoolcraft analysis, evenpost-divorce. The question is not whether the Pearsons’ marriageultimately failed, but rather whether the potential of achallenge to Z.P.’s paternity would have undermined the Pearsons’4We note that Thanos’s paternity challenge arose entirelywithin the duration of the Pearsons’ marriage, and that Thanosfiled his motion to intervene concurrently with Mother’sresponsive pleading in the Pearsons’ divorce case, prior to theactual decree of divorce.5We note that the public policy in favor of preserving thestability of marriage, always strong in
Utah, may be evenstronger in light of
Utah’s enshrinement of so-called traditionalmarriage into its constitution in 2004. See
Utah Const. art. I,§ 29 (Supp. 2005); but see Citizens for Equal Prot. v. Bruning,368 F. Supp. 2d 980 (D. Neb. 2005) (declaring a similar stateconstitutional amendment invalid on various grounds includingfree association and equal protection).20040677-CA 7marriage while it was still in existence.4 Under Father’sversion of events, the possibility of raising Z.P. as his ownchild without interference from Thanos was perhaps the centralissue motivating him to make the marriage work. While Mother’sversion is substantially different, even her recollectionindicates the importance of the issue to Father, and her ownwillingness to make the marriage work.¶21 In any event, the Pearsons stayed together in marriage forover a year after Father first became aware of Thanos’s paternityof Z.P. The trial court erred in failing to recognize that thePearsons’ shared parentage of Z.P. represented a stabilizingforce in their then-existing marriage, and that the potential ofa paternity challenge would diminish that stabilizing effect.Thus, even after the Pearsons filed for divorce, Thanos’schallenge to Z.P.’s paternity can be said to have had someundermining effect on the stability of the Pearsons’ marriagewithin the meaning of Schoolcraft’s public policy analysis.5While the reality of the Pearsons’ ultimate divorce may minimizethe importance of the first Schoolcraft prong, we cannot say onthe facts of this case that it obviates that prong altogether.B. Protection of Children from Attacks on Paternity¶22 The second, and in this case more problematic, policyconsideration under the Schoolcraft test is “protecting childrenfrom disruptive and unnecessary attacks upon their paternity.”In re J.W.F., 799 P.2d 710, 713 (
Utah 1990). There are crucialdistinctions between the Pearsons’ case and In re J.W.F. thatlead us to conclude that Thanos’s challenge to Z.P.’s paternityis both disruptive and unnecessary.6Dr. Sanders’s May 13, 2002 report concluded that “[f]rom adevelopmental and psychological perspective, [Z.P.]’s functioningis not inherently disrupted by [Thanos's] involvement and[Thanos's] relationship with [Z.P.] is necessary to [Z.P.]’snormal and positive development.” Dr. Sanders’s supplementalreport of August 26, 2002, further concluded that “[t]here is noreason to believe that further disruption to the relationship(continued…)20040677-CA 8¶23 In In re J.W.F., J.W.F. was promptly abandoned by his motherat birth, his natural father apparently never sought or enjoyedany parental role whatsoever, and his mother’s husband, Winfield,never had custody of J.W.F. or a relationship with him. See id.at 712-13. J.W.F. was a little more than one year old at thetime of the initial standing dispute. Not surprisingly, thesupreme court had no trouble in determining that allowingJ.W.F.’s guardian ad litem standing to litigate his paternitywould not constitute an “unnecessary and disruptive attack[]” onJ.W.F.’s paternity.
Id. at 713. The court stated that “J.W.F.’sexpectations as to who his father is cannot be shaken bypermitting a challenge to the presumption of legitimacy. Thechild has never had a relationship with [Winfield] Schoolcraft,[or his biological father], or even his mother, so he has noexpectations as to who his father is.”
Id.¶24 Clearly, the present case does not involve a lack ofpaternal relationships. Rather, the trial court was presentedwith an undisputed and ongoing paternal relationship betweenFather and Z.P., as well as Thanos’s evolving relationship withZ.P. as a stepfather, and as the father of one of Z.P.’ssiblings. In its November 2002 order granting Thanos’s motion tointervene, the trial court explained its ultimate rationale onthe unnecessary and disruptive prong:The court cannot find that granting Mr.Thanos the standing to intervene would bedisruptive to [Z.P.] or an unnecessary attackon his paternity. In this case, as indicatedby Dr. Sanders in her report, Mr. Thanos hasan established relationship with the childand there is nothing in the reports of Dr.Sanders that would suggest allowing Mr.Thanos to intervene would be adverse to thebest interests of the child. The report ofDr. Sanders, to the contrary, indicates thatit is in the best interests of the child toallow Mr. Thanos to intervene.[6]6(…continued)between [Z.P.] and [Father] is intrinsically linked to Mr.Thanos’[s] presence in [Z.P.]’s life.”Mere involvement or presence in a child’s life is a verydifferent thing than a legal challenge to the child’s paternity.Thus, we do not see Dr. Sanders’s reports as being responsive tothe Schoolcraft goal of “protecting [Z.P.] from disruptive andunnecessary attacks upon [his] paternity.” In re J.W.F., 799P.2d at 713 (emphasis added).20040677-CA 9The November order also recognized that Father had “functioned asZ.P.’s father since his birth.”¶25 We have no reason to question the trial court’s findings asthey relate to the contents of Dr. Sanders’s report or theexistence of some relationship between Thanos and Z.P. inNovember 2002. However, despite the paternal role that Thanosmay eventually have attempted to take, the undisputed facts ofthe case are that Thanos had little interest or involvement inZ.P.’s life until he was approximately sixteen months of age.The trial court recognized as much in its October 2001 orderinitially denying Thanos’s motion to intervene: “Mr. Thanos wascompletely absent from [Z.P.'s] first year of life, was absentfor the first half of his second year of life, and has hadincidental contact during the second half of the second year of[Z.P.'s] life.” As a result of this intentional absence, Z.P.developed a paternal relationship exclusively with Father overthe first two years of his life, a relationship that both Fatherand Z.P. apparently continue to foster to the present.¶26 The Schoolcraft analysis is not intended to protect childrenfrom all attacks on their paternity, but only those that aredisruptive and unnecessary. See id. In evaluating thedisruptiveness of a paternity challenge, the supreme courtfocused on the child’s relationship with the existing fatherfigure and the child’s “expectations as to who his father is.”
Id. Here, the trial court found in its October 2001 order thatFather was the “psychological father of [Z.P.],” that Z.P. had“become closely bonded with [Father],” and that those bonds were“critical.” The trial court further found as a factual matterthat to permit Thanos “to establish his paternity of [Z.P.] andto be introduced at this point as a father figure in [Z.P.'s]life would be immediately disruptive to the child’s stability.”These facts leave little doubt that, at least as of October 2001,Thanos’s paternity challenge would have been disruptive to Z.P.’sexisting paternal relationship with Father and Z.P.’sexpectations as to who his father was.7We are aware that disregarding Dr. Sanders’s conclusionsregarding Z.P.’s best interests seems counterintuitive given thecentral role that the best interests standard plays in every caseinvolving juveniles. Nevertheless, in the context of determiningstanding to contest paternity, the Schoolcraft test is thestandard set by the supreme court to measure the child’s bestinterests as those interests balance against the rights ofothers.20040677-CA 10¶27 We see nothing in the record to indicate that the merepassage of time, or the integration of Thanos into Z.P.’s life asMother’s husband, destroyed or even diminished Z.P.’s paternalrelationship with Father or his expectations as to who his fatherwas. To the contrary, Dr. Sanders’s May 13, 2002 report foundthat “[Z.P.] identifies [Father] as his father and theirattachment is secure, strong and healthy.” Her supplementalreport of August 26, 2002 confirmed that Z.P. and Father shared a“strong and positive parent-child attachment.” Despite Dr.Sanders’s other conclusions regarding Z.P.’s best interests,7 herfindings of a continuing paternal relationship between Z.P. andFather should have been the central focus of the trial court’sSchoolcraft analysis.¶28 In light of those findings, we cannot say that Thanos’sattack on Z.P.’s paternity would not have been disruptive toZ.P.’s paternal relationship with Father and his expectationsabout whom his father was. The entire motivation for Thanos’sattempt to intervene was to establish that he, rather thanFather, was to fulfill the paternal role in Z.P.’s life.Whatever other effects Thanos’s challenge might ultimately haveon Z.P., his direct attack on Father’s paternity of Z.P.certainly fails the Schoolcraft directive of avoiding disruptionof existing paternal relationships.¶29 We must also examine whether Thanos’s paternity challengecan be deemed “necessary.”
Id. In re J.W.F. did not provideguidance on distinguishing between necessary and unnecessarypaternity challenges, and the trial court did not expresslyaddress the issue. We presume that, like the disruption element,the necessity element must be analyzed primarily from the child’sperspective rather than from Father’s or Thanos’s. See id.(emphasizing a policy of “protecting children” and analyzingdisruption from the child’s perspective). We also assume,without deciding, that Schoolcraft standing always exists atbirth and can be lost only thereafter. Cf.
Utah Code Ann. § 78-30-4.14(2) (2002) (establishing standards by which unmarried8This is not inconsistent with Dr. Sanders’s assessment thatThanos has a potentially valuable role to play in Z.P.’s life.That role, however, need not be as the primary father figure.20040677-CA 11biological father can establish paternity so as to defeatadoption of his child by another at birth).¶30 Proceeding under these assumptions, we cannot see howThanos’s ability to challenge Z.P.’s paternity remained necessaryafter he voluntarily absented himself from Z.P.’s life. FromZ.P.’s perspective, he had a father in Father from his earliestability to form paternal bonds. Had the Pearson marriagesucceeded, Father would likely have remained Z.P.’s father in allregards throughout the foreseeable future. Dr. Sanders foundthat, even when the Pearsons’ marriage failed, Z.P. continued toidentify Father as his father and enjoy a strong paternalrelationship with him. Thus, at the time of the trial court’sintervention order, Z.P. had a father and was not in need of adifferent one.¶31 We need not determine the exact point at which Thanos’spaternity challenge became unnecessary for Schoolcraft purposes.It is sufficient in this case to determine that there existed aperiod of many months during which Z.P. developed a strongpaternal relationship with a loving and willing presumed father.So long as that relationship continues, it cannot be said forSchoolcraft purposes that Z.P. has any particular need for hispaternity to be established in another man.8¶32 Looking at the circumstances of this case as a whole, weconclude that the trial court should have deemed Thanos’s attackon Z.P.’s paternity both disruptive and unnecessary. Thanos’schallenge to Z.P.’s presumed paternity became disruptive andunnecessary when he allowed Z.P. to form paternal bonds withFather, and will likely remain so, for Schoolcraft purposes, aslong as those bonds continue.C. The Trial Court Erred in Allowing Thanos to Intervene¶33 In light of our conclusions regarding the application of theSchoolcraft factors to this case, we determine that Thanos lacksstanding to challenge Z.P.’s paternity and that the trial courterred by allowing him to intervene in the Pearsons’ divorceaction. While the Pearsons’ marriage may be long dissolved, wemust give some weight to the fact that the Pearsons attempted tosave their marriage, and that Father’s intent and ability toraise Z.P. as his own were significant factors in that decision.9“Unmarried biological father” for purposes of Utah Codesection 78-30-4.14(2) means a man not married to the child’smother, without regard to whether the man is married to another.See Utah Code Ann. § 78-30-4.11 (2002) (repealed 2005) (defining“unmarried biological father”); id. § 78-30-1.1(5) (Supp. 2005)(same).20040677-CA 12Most significantly, however, an attack on Z.P.’s paternity atthis point would be disruptive of Z.P.’s strong paternalrelationship with Father, a relationship that renders Thanos’schallenge unnecessary from Z.P.’s perspective. Under thesecircumstances, Thanos does not have Schoolcraft standing, and thetrial court erred in allowing him to intervene.¶34 We analogize Thanos’s status to that of an unmarried fatherseeking to establish parental rights to his child in the face ofthe mother’s intent to have the child adopted. See
Utah CodeAnn. § 78-30-4.14(2). Section 78-30-4.14(2) sets out variousrequirements that an unmarried biological father9 must complywith in order to establish his paternity. See id. When theadoption involves a child under six months of age, section 78-30-4.14(2) establishes specific acts, including initiating apaternity action, that the father must take prior to the motherexecuting her consent to the adoption. See id. § 78-30-4.14(2)(b). The mother’s consent to adoption can be executed aslittle as twenty-four hours after the child’s birth. See id.§ 78-30-4.19 (2002). A father who fails to comply with therequirements of section 78-30-14(2) has no standing to object tothe adoption and permanently loses his parental rights to thechild. See id. § 78-30-4.14(5); In re adoption of B.B.D., 1999UT 70,¶¶10-12, 984 P.2d 967 (“Under
Utah law, ‘an unmarriedbiological father has an inchoate interest that acquiresconstitutional protection only when he demonstrates a timely andfull commitment to the responsibilities of parenthood, bothduring pregnancy and upon the child’s birth.’” (quoting Utah CodeAnn. § 78-30-4.12(2)(e) (1996)).¶35 By holding Thanos to a similar, if somewhat more generous,standard, we recognize that a husband is presumed to be the legalfather of a child born into his marriage. See
Utah Code Ann.§ 30-1-17.2(2) (Supp. 2005). In the vast majority of maritalbirths, the husband is also the natural, biological father of thechild. However, in the hopefully rare instance where a childborn into a marriage is fathered by another man, the husband isnevertheless deemed the father of the child, with all concomitantrights and responsibilities, unless and until his paternity issuccessfully challenged under the Utah Uniform Parentage Act.10We express no opinion on the separate question of whetherSchoolcraft standing, once lost, can ever be regained due tochanged circumstances.11We recognize that Mother asserted Father’s non-paternityof Z.P. in her answer and in a simultaneous motion to show cause,(continued…)20040677-CA 13See id. §§ 78-45g-101 to -902 (Supp. 2005); id. § 30-1-17.2(4)(“A presumption of paternity established under this section mayonly be rebutted in accordance with Section 78-45g-607.”).Essentially, an illegitimate child born into a marriage isimmediately subject to a de facto adoption by the mother’shusband. We see no reason why a man who chooses to procreatewith the wife of another should be granted significant latitudeto challenge the husband’s de facto adoption, while one who failsto timely establish his paternity of a child born to an unmarriedwoman is permanently barred from doing so upon the mother’s mereconsent to the child’s adoption.¶36 Like any other unmarried father who fails to perfect hisinchoate parental rights, Thanos lost his standing to contestZ.P.’s paternity sometime during the early months of Z.P.’s life.Despite the evolving circumstances of this case, we conclude thatsince that time Thanos has not met, and to our knowledge stilldoes not meet, the Schoolcraft factors.10 Accordingly, the trialcourt erred in granting Thanos’s January 2001 motion to interveneand his subsequent motion for summary judgment establishing hispaternity of Z.P.II. Z.P.’s Paternity and Custody¶37 Our determination that it was error to allow Thanos tointervene in the Pearsons’ divorce action has inescapableconsequences for the trial court’s paternity and custody orders.With Thanos improperly joined in this litigation, the trialcourt’s consideration of Thanos’s motion for summary judgment toestablish paternity, and the genetic evidence in support thereof,was error. And, of course, the court’s May 2003 order grantingThanos’s summary judgment on the issue of his fatherhood of Z.P.was also erroneous and is reversed.¶38 With Thanos and all of his various pleadings and evidenceout of the litigation, Father remains the presumed and legalfather of Z.P. See
Utah Code Ann. § 30-1-17.2(2). Accordingly,the trial court erred in applying the parental presumption infavor of Mother11 and against Father in making its ultimate11(…continued)and that she could have litigated Z.P.’s paternity on identicalevidence in Thanos’s absence. Regardless of this possibility,Z.P.’s paternity was actually litigated almost exclusivelybetween Father and Thanos, an improper party. We rule todaysolely on the issues before us, and neither Mother nor Thanosargue on appeal that Mother’s pleadings provide an independentground to affirm the trial court’s paternity finding.More importantly, for all of the reasons set forth in thisopinion, Mother would also appear to be barred from challengingZ.P.’s paternity on the facts and posture of this case. She toowould lack Schoolcraft standing, see In re J.W.F., 799 P.2d 710,713 (
Utah 1990), and her actions prior to the initiation ofdivorce proceedings might support a determination that herchallenge was barred by equitable estoppel. See Dahl Inv. Co. v.Hughes, 2004 UT App 391,¶14, 101 P.3d 830 (listing elements ofequitable estoppel); see also Kristen D. v. Stephen D., 719N.Y.S.2d 771, 772-73 (App. Div. 2001) (“Courts have longrecognized the availability of the doctrine of equitable estoppelas a defense in a paternity proceeding.” (citations omitted));Richard W. v. Roberta Y., 658 N.Y.S.2d 506 (App. Div. 1997)(applying equitable estoppel principles to bar a paternitychallenge). For the same reasons, Father would also appear to bebarred from seeking to disestablish paternity of Z.P. should heever choose to do so.We express no opinion on whether Z.P. himself, the state of
Utah, or any other person or entity could ever challenge Father’spaternity, or the circumstances that might permit such achallenge.20040677-CA 14custody decision regarding Z.P. Other aspects of the trialcourt’s supplemental decree of divorce also rely, explicitly orimplicitly, on Thanos’s paternity of Z.P., and these aspects ofthe final order are also erroneous and must be revisited asappropriate.¶39 We reverse the trial court’s orders below to the extent thatthey rely on Thanos’s paternity of Z.P., and remand this matterto the trial court for the issuance of a new custody order,taking into account Father’s legal paternity of Z.P.CONCLUSION¶40 Thanos should not have been allowed to intervene in thismatter due to a lack of Schoolcraft standing. Accordingly, thepresumption of Father’s legitimate parentage of Z.P. remains20040677-CA 15unrebutted, and Father remains the legal parent of Z.P. Thetrial court’s supplemental decree of divorce, as well as anyother order entered below, is reversed to the extent that itconflicts with Father’s legal status as Z.P.’s parent or waspremised on Thanos’s paternity. This matter is remanded forfurther proceedings consistent with this opinion.______________________________William A. Thorne Jr., Judge—–¶41 WE CONCUR:______________________________Pamela T. Greenwood,Associate Presiding Judge______________________________Gregory K. Orme, Judge 

T.D. v. M.M.
3/2/1999

T.D. v. M.M.M., 98-0167 (La. 3/2/99); ___ So.2d ___
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FOURTH CIRCUIT, PARISH OF ST. BERNARD
* LEMMON, J., not on panel, recused. See Rule IV, Part 2, § 3.
This avowal action arose when P.W., the biological father of the minor child, C.M., intervened in the legal parents’ custody proceeding to have his parental rights acknowledged. The trial court recognized P.W. as the biological father and ordered that a hearing be conducted to resolve visitation and child support issues in the best interest of the child. On appeal, the court of appeal barred the action under the doctrine of laches, reasoning that P.W.’s delay in filing for more than six years after the birth of the child prejudiced the child. The court of appeal reversed the judgment of the trial court and dismissed the petition in intervention. We granted certiorari to determine whether P.W.’s avowal action is barred under the doctrine of laches.
FACTS AND PROCEDURAL HISTORY
The child’s mother, T.D., and legal father, M.M.M., were married in October of 1984. In October of 1985, T.D. met P.W., who was also married at the time. T.D. and P.W. began having adulterous sexual relations in March or April of 1986. The affair spanned a period of approximately seven and one-half years. In March of 1988, T.D. conceived a child, C.M. T.D. informed P.W. that she suspected he was the father because she had not been intimate with her husband at the time of conception. T.D. also informed her husband that he was the father of the child.
T.D. and P.W. discontinued their sexual relations during the pregnancy, but continued with the affair shortly after the child’s birth in December of 1988. P.W. testified that he regularly visited the mother and child throughout the affair and always suspected that he was the child’s father. In November of 1992, T.D. and M.M.M. separated. At T.D.’s request, P.W. curbed his visits during most of the separation, but resumed them in March of 1993. In April of 1993, the child and P.W. underwent DNA paternity testing. In June of 1993, the DNA test results confirmed to a 99.5% probability that P.W. was the child’s biological father. That same month, T.D. and M.M.M. were granted a divorce. In August of 1993, the trial court named T.D. as the domiciliary parent and granted M.M.M. visitation. T.D. ended the affair with P.W. in November 1993 and, thereafter, would not allow P.W. access to the child.
In December 1994, P.W. intervened in the legal parents’ domestic proceedings seeking recognition of his biological paternity, joint custody, and visitation. The legal parents objected to this intervention. The court held that P.W.’s suit was not untimely because “his suspicions of parenthood were not confirmed until he received the results of the [DNA test]” and that visitation rights of any parent must be considered in light of the best interests of the child. The court recognized P.W. as the child’s biological father, ordered a mental health evaluation of the child to assess possible effects of parentage information and visitation with the biological father, and, finding itself without sufficient evidence to determine the best interest of the child, the court ordered an evidentiary hearing to determine visitation rights and to assess income for potential child support issues.
The legal parents appealed from this ruling, arguing the biological father’s action was untimely. The court of appeal found for the legal parents, reversed the trial court, and dismissed P.W. from the proceedings. P.W. sought writs with this court, contending the court of appeal misinterpreted and misapplied the doctrine of laches and, the refore, erred in dismissing his avowal action. P.W. additionally argues the court of appeal erred in failing to defer to the trial court’s factual findings. We granted certiorari to determine whether P.W.’s avowal action is barred under the doctrine of laches.
LAW AND DISCUSSION
In order for this court to decide the timeliness of the instant action, we must first set out the jurisprudential background of avowal. Louisiana courts have traditionally recognized a biological father’s right to his illegitimate child by means of an avowal action. La. Civ. Code arts. 131, 134, 184; Peyton v. Peyton, 92-0107 (La. App. 3 Cir. 2/3/93); 614 So.2d 185; Geen v. Geen, 95-0984 (La. App. 3 Cir. 12/27/95); 666 So.2d 1192, 1195, writ den. 96-0201 (La. 3/22/96); 669 So.2d 1224; Putnam v. Mayeux, 95-1251 (La. App. 1 Cir. 11/10/94); 645 So.2d 1223); Chandler v. Grass, 600 So.2d 852 (La. App. 3 Cir. 1992). This action is available despite the La. Civ. Code art. 184 presumption that the husband of the mother is the father of all children born or conceived during the marriage. Durr v. Blue, 454 So.2d 315 (La. App. 3 Cir.), writ den., 461 So.2d 304 (La. 1984); Smith v. Cole, 553 So.2d 847, 851 (La. 1989); Finnerty v. Boyett, 469 So.2d 287, 292 (La. App. 2 Cir. 1985); Warren v. Richard, 296 So.2d 813 (La. 1984).
In our view, several policy factors favor allowing a biological father to avow his child where such action will result in dual paternity. First, a biological father is susceptible to suit for child support until his child reaches nineteen years of age. La. Civ. Code art. 209. Second, a child who enjoys legitimacy as to his legal father may seek to filiate to his biological father in order to receive wrongful death benefits or inheritance rights. Smith v. Jones, 566 So.2d 408, 412-413 (La. App. 1 Cir.), writ den., 608 So.2d 174 (La. 1990); Gnagie v. Department of Health and Human Services, 603 So.2d 206, 210 (La. App. 1 Cir. 1992). It seems only fair, in light of the obligations to which a biological father is susceptible and the multitude of benefits available to the biological child due to the biological link, that the biological father should be afforded at least an opportunity to prove his worthiness to participate in the child’s life. Alternatively, a biological father who cannot meet the best-interest-of-the-child standard retains his obligation of support but cannot claim the privilege of parental rights. Finding that a biological father clearly has the right to avow his illegitimate child under the law of this state, we now turn to the issue of whether P.W. asserted his action in a timely manner.
In order to determine the timeliness of P.W.’s filing, we must address the nature of any time limitations which may apply to avowal actions. Prescription may only be established by legislation. La. Civ. Code art. 3457. There is no prescription statute applicable to a father’s action to avow his biological child. Smith v. Dison, 95-0198 (La. App. 4 Cir. 9/28/95); 662 So.2d 90, 94; Putnam v. Mayeaux, 93-1251 (La. App. 1 Cir. 11/10/94); 645 So.2d 1223, 1226-27. Finding no prescription applicable, we now turn to the laches argument championed by the court of appeal.
The legal parents based their appeal on the argument that laches bars a biological father’s avowal action where it is not promptly asserted. As a matter of law, the purpose of the doctrine is to prevent an inJustice which might result from the enforcement of long neglected rights and to recognize the difficulty of ascertaining the truth as a result of that delay. Barnett v. Develle, 289 So.2d 129 (La. 1974). However, this court has clearly established that the common law doctrine of laches does not prevail in Louisiana. Picone v. Lyons, 92-0350 (La. 7/1/92); 601 So.2d 1375, reh’g denied 9/3/92. Nevertheless, we have applied the doctrine in rare and extraordinary circumstances. See e.g. State ex rel. Medford v. Whitley, 95-1187 (La. 1/26/96), 666 So.2d 652; State ex rel Winn v. State, 95-0898 (La. 10/2/96), 685 So.2d 104; State ex rel. Cormier v. State, 95-2208 (La. 10/4/96), 680 So.2d 1168 (“laches-like” provisions of La. Code Crim. Proc. art. 930.8(B) authorizes dismissal of any timely-filed inmate’s application when the state shows that delay has prejudiced its ability to respond).
We will consider the elements of the doctrine as they apply to the instant case to determine if rare and extraordinary circumstances exist in the instant case which merit application of the doctrine of laches. Regarding the first element of prejudice, we find no proof of prejudice to the child nor to the defendants in intervention, the legal parents. To the contrary, the trial Judge expressly limited his ruling to a finding of fact that P.W. is the child’s father. The trial court passed on the issue of the best interest of the child because it was without sufficient evidence to make a knowledgeable finding. If evidence of the best interest of the child was lacking, certainly there is insufficient proof institution of this action has caused prejudice to the child. Thus, we find no inJustice or prejudice may result from this avowal action. The legal parents failed to prove the first element of laches enunciated in Barnett v. Develle, 289 So.2d 129 (La. 1974).
Regarding the second element of delay, we surmise that the delay in this case is not entirely the fault of the biological father. It is apparent that the actions of the mother have caused much of the delay. See Finnerty v. Boyett, 469 So.2d at 292 (Where the mother of the child effectively causes the delay in the biological father’s filing of an avowal action, the delay is not considered unreasonable so as to preclude avowal). P.W. regularly visited his child when he was on good terms with the mother. This appears to be the reason why he did not file suit until after the affair ended and his attempts to visit his child were thwarted. P.W. filed his suit less than one year after it became apparent that he was not free to visit his child, and approximately six years from the child’s birth. We find P.W. did not seek enforcement of long neglected rights because his filing was not unreasonable in light of circumstances which impute much of the delay to the mother. Thus, the legal parents failed to prove the second element of laches enunciated in Barnett v. Develle, 289 So.2d 129 (La. 1974). Therefore, we find that both requirements precipitating a finding of laches are lacking. Simply put, our jurisprudence provides relief under the doctrine of laches only in rare and extraordinary circumstances. This is not such a case.
CONCLUSION
It is the province of the trial court to determine the nature and extent of a biological father’s rights to his illegitimate child. Maxwell v. Leblanc, 434 So.2d 375 (La. 1983). For this reason, we remand this matter to the trial court for such a determination. Assuming arguendo that P.W. can convince the trial court that his involvement in C.M.’s life is in the best interest of C.M., he should not be precluded from participating in the child’s life.
We reverse the ruling of the court of appeal which barred P.W.’s avowal action on the basis that his involvement at this stage of his child’s life will serve to prejudice the child. We reinstate in full the order of the trial court which recognized P.W. as C.M.’s biological father, ordered the evaluation by a mental health professional, and ordered that an evidentiary hearing be held to determine the best interest of C.M. Accordingly, we remand this matter to the trial court for Disposition consistent with the findings herein.
DECREE
REVERSED AND REMANDED.
CALOGERO, C.J., A Dissents and assigns reasons.
KIMBALL, J., A Dissents and assigns reasons.
KNOLL, J., A concurs and assigns reasons.
Knoll, J., Concurring.
I write separately to concur in the result only. In my view, since Louisiana law (our Civil Code and statutory law) fails to provide for an avowal action for an unwed biological father, the real focus of the majority opinion should be directed toward a consideration of the unwed biological father’s constitutional rights, placed in balance with competing interests. Therefore, I disagree with the majority’s application of the common law doctrine of laches, which has no statutory or jurisprudential basis in Louisiana.
If an unwed biological father’s claim is supported by constitutionally based rights, a procedural bar cannot deny consideration of those claims based on state law or absence thereof, because state law is subordinate to the Constitution according to the supremacy clause. U.S. Const. art. VI, cl. 2; Layne v. City of Mandeville, 93-0046 (La. App. 1 Cir. 12/29/93), 633 So.2d 608, writ denied, 94-0268 (La. 3/25/94), 635 So.2d 234. “It is a seminal principle of our law `that the constitution and the laws made in pursuance thereof are supreme; that they control the constitution and laws of the respective States, and cannot be controlled by them.’ McCulloch v. Maryland, 4 Wheat. 316, 426, 4 L.Ed. 579, 606 (1819).” Hancock v. Train, 426 U.S. 167, 178 (1976). Therefore, we must not prevent consideration of the ultimate issue on state law grounds. Specifically, the majority should have addressed the unwed biological father’s liberty interest in the relationship with his child and whether he may be deprived of his rights without due process of law.
The delicate issue of balancing the rights of the unwed biological father with competing interests is not new to our United States Supreme Court. Parental rights of biological fathers who were not married to the biological mothers were first recognized in Stanley v. Ill., 405 U.S. 645 (1972). The Court noted that ” he right to conceive and to raise one’s children have been deemed `essential,’ `basic civil rights of man.’” Id. at 651. (Citations omitted.) Therefore, based on a presumption of “unfitness” the State could not deprive the unwed biological father of his children without due process. The unwed father’s substantive rights were again recognized in Quilloin v. Walcott, 434 U.S. 246 (1978). There, the Court concluded that the biological father’s “substantive rights were not violated by application of a `best interests of the child’ standard.” Id. at 254. Based on those two cases, it appears necessary to hold a hearing that explores both the rights of an unwed father and competing interests. In Quilloin, the best interests of the child trumped the biological father’s interests. Where a marital unit is intact, the State’s interest in preserving the integrity of the marital family may also silence a biological father’s competing interests. Id.; Stanley, 405 U.S. at 645.
The unwed biological father’s substantive rights were further defined in Lehr v. Robertson, 463 U.S. 248 (1983). The Court explained that something more than genes was necessary for the biological father to preserve his rights. Lehr focused on the biological father’s “grasp[ing the] opportunity and accept some measure of responsibility for the child’s future.” Id. at 262. Only then did the Federal Constitution require a State to provide a forum for the unwed father to voice his opinion as to what was in his natural child’s best interest. Id. The Lehr Court was most concerned with whether the State had “adequately protected his opportunity to form such a relationship.” Id. at 264.
In the case sub judice, the biological father did develop a relationship with his natural child, particularly as the natural mother’s marriage was drawing to a close. He should not be faulted for not coming forward during the time in which his child’s mother was married to another man, because Louisiana’s public policy favors protecting the marital unit. Given the presumption of paternity in La. Code Civ.P. art. 184 and the strong State interests in preserving the marital family unit that gave rise to the presumption, any efforts made during that marriage would have been properly thwarted.
The fact that a biological father is thwarted from exercising parental rights when the mother is married to another man is not constitutionally offensive, because the balance tips in favor of preserving the marital family over the biological father’s individual rights. See Michael H. v. Gerald D., 491 U.S. 110 (1989). However, once the bonds of matrimony are dissolved a vinculo matrimonii, the State’s interest in preserving the marital family disappears. This does not ignore the fact that some rights spring from the dissolution of a lawful marriage, but recognizes instead the policy behind the codal provision and the perspective of our times. Today’s realities are that illegitimacy and “broken homes” have neither the rarity nor the stigma as in the past. When parenthood can be objectively determined by scientific evidence, and where illegitimacy is no longer stigmatized, presumptions regarding paternity are “out of place.” Michael H. v. Gerald D., 491 U.S. 110, 137-147 (1989) (Stevens, J., Concurring). I find it significant that the Louisiana legislature, in amending La.Civ. Code art. 184-190 by Act 430 of the 1976 Regular Session, deliberately changed the presumption regarding paternity from conclusive to rebuttable. Smith v. Jones, 566 So.2d 408 (La. App. 1 Cir.), writ denied sub nom. Kemph v. Nolan, 569 So.2d 981 (La. 1990). Also significant is Louisiana’s recognition of dual paternity. See, e.g., Warren v. Richard, 296 So.2d 813 (La. 1974); Smith v. Cole, 553 So.2d 847 (La. 1989). In this case, where we have conclusive scientific evidence of true paternity based on DNA testing, it is inappropriate not to address the biological father’s substantive rights.
The majority opinion and worthy Dissents skirt the constitutional issue and, in effect, “conflate the question whether a liberty interest exists with the question what procedures may be used to terminate or curtail it.” Michael H. v. Gerald D., 491 U.S. 110, 145 (1989) (Brennan, J., Dissenting). In my view, the strong public policies protecting our children are best served not by sweeping the unwed biological father’s substantive rights under the procedural rug, but by examining them at a hearing which preserves his due process rights, and balances the biological father’s rights against competing interests. Under the Fourteenth Amendment and under La.Const. art. I, § 2, ” o person shall be deprived of life, liberty, or property, except by due process of law.” La.Const. art. I, § 2. Moreover, balancing tests are traditionally used to resolve problems created by competing rights and interests. Mary Kay Kisthardt, Of Fatherhood, Families and Fantasy: The Legacy of Michael H. v. Gerald D., 65 Tul. L. Rev. 585, 625 (1991). Finally, support for the proposition that an unwed biological father is entitled to a hearing when the mother of his natural child is a single woman, no longer married, may Hopefully, our Legislature will address this delicate issue which will assist the judiciary in resolving cases of this difficult nature. Indeed, this case poses disturbing issues that are entwined with family matters which are perhaps the most difficult to resolve as they are matters close to the heart. Input from our Legislature would be most helpful and appropriate as this issue is not foreclosed. To demonstrate how difficult this issue is to resolve, I note the prevailing view of the United States Supreme Court in Michael H., which was succinctly summarized by Justice Brennan as an introduction to his Dissent:
“Five Members of the Court refuse to foreclose `the possibility that a natural father might ever have a constitutionally protected interest in his relationship with a child whose mother was married to, and cohabiting with, another man at the time of the child’s conception and birth.’ Five Justices agree that the flaw inhering in a conclusive presumption that terminates a constitutionally protected interest without any hearing whatsoever is a procedural one. Four Members of the Court agree that [the biological father] has a liberty interest in his relationship with [his natural child], and one assumes . . . that he does.” Michael H. at 491 U.S. 135 (Brennan, J., Dissenting) (citations omitted.)
For the reasons above, I respectfully concur in the results.
Kimball, Justice, Dissenting.
I Dissent because the majority proceeds to a Discussion of laches without first determining both the validity of the avowal action and the categories of persons who are allowed to bring this action, which are issues that this court has never squarely addressed. I consider such a Discussion wholly appropriate to the instant case, as there is no codal or statutory authority for the avowal action. Rather, this action is a creation of the lower courts. I also conclude that, even assuming arguendo that such an action exists, a careful examination of the law and the history of the law in this area shows that the intervenor in this suit lacks standing to bring this action.
Although ” he husband of the mother is presumed to be the father of all children born or conceived during the marriage,” the Code expressly grants standing to rebut this presumption to three parties. La. Civ. Code art. 184. The husband himself has standing to disavow his paternity, but to do so he must put on evidence of facts that show by a preponderance of the evidence that he is not the father. La. Civ. Code art. 187. Absent extraordinary circumstances that prevent him from filing the disavowal, he must bring this action within one hundred and eighty days after he learns or should have learned of the birth. La. Civ. Code art. 189.
The Article 184 presumption is one of the oldest and strongest presumptions found in Louisiana law. See Smith v. Cole, 553 So.2d 847, 850 (La. 1989) (noting that the Article 184 presumption is “the strongest known in law”). Its precursor may be found in Article 312 of the Code Napoleon of 1804, which provided that ” n infant conceived during marriage claims the husband as his father.” As Planiol noted, French law gave standing to dispute the husband’s paternity only to the husband himself and his heirs, even though the mother, the child, and other children legitimately born of the marriage may also have an interest in disproving the husband’s paternity. 1 Planiol, Traite Elementaire de Droit Civil § 1422 (Louisiana State Law Institute English Translation 1959). Absent a concealed or premature birth or legal separation of the spouses, the French presumption was also very strong. Id. at § 1430  1439.
The presumption was first manifested in Louisiana law in Article 7 of Chapter II of Title VII of the 1808 Digest of the Civil Law, which read ” he law considers the husband of the mother as the father of all children conceived during the marriage.” Tile VII, Chapter II, art. 7, Civil Laws of the Treaty of Orleans (1808). However, when the presumption was in force, the Digest gave no one, not even the husband himself, standing to rebut this presumption. “The law admits neither the exception of the wife’s adultery nor the allegation of the husband’s natural or accidental impotency.” Id.
The presumption of paternity in the Code of 1825 was no less exacting than that of the Code of 1808. Article 203 of the 1825 Code was a verbatim copy of Article 7 of Chapter II of Title VII of the Digest. The spirit of the second paragraph of former Article 7 of the Digest was seen in Article 204, which provided ” he husband cannot by alledging his natural impotence disown the child, he cannot diswon it even for cause of adultery, unless its birth has been concealed from him, in which case he will be permitted to prove that he is not its father.” Thus, the Digest denied the husband standing to rebut the presumption even if he was impotent or if the child was the result of an adulterous affair.
However, the husband was granted standing in cases where the child’s birth had been hidden from him. Article 204 of the 1825 Code provided that “. . . he cannot diswon it even in case of adultery, unless its birth has been concealed from him, in which case he will be permitted to prove that he is not its father.” As noted by Planiol, the very fact that the birth was hidden attests to the child not being the husband’s. 1 Planiol, Traite Elementaire de Droit Civil § 1436 (Louisiana State Law Institute English Translation 1959). Thus, although the husband was granted standing to challenge the presumption of paternity, the standing was limited to the one situation in which it was virtually certain that the child was not his.
In the Code of 1870, the presumption was continued in Article 184, which was a verbatim copy of Article 203 of the 1825 Code. Thus, the husband of the mother was still considered the father of all children conceived during the marriage. La. Civ. Code art. 184 (1870). Further, Article 185 of the 1870 Code still denied the husband standing to disavow the paternity of the child even on account of impotence or adultery, unless the adulterous birth was concealed from him. La. Civ. Code art. 185 (1870).
The presumption and its attendant disavowal provision remained unchanged until 1976. Prior to the revision, disavowal of children was exceedingly rare, and there was a paucity of cases in which a husband successfully disavowed a child.
The 1976 revisions to the Civil Code radically changed both the application of the presumption of paternity and the standing to rebut that presumption. Article 184 now provides that children both born and conceived during the marriage are presumed to be the children of the mother’s husband. La. Civ. Code art. 184. Further, the husband of the mother now has standing to rebut the presumption of paternity; this is accomplished simply by “prov by a preponderance of the evidence, facts which reasonably indicate that he is not the father.” La. Civ. Code art. 187. Both the article and the jurisprudence stress that the father must prove facts; a husband who merely alleges that he was not intimate with the mother at the time of conception will not succeed in a disavowal action. See La. Civ. Code art. 187; Mock v. Mock, 411 So.2d 1063 (La. 1982) (holding that husband whose only evidence in disavowal action was his own self-serving testimony of lack of sexual relations with mother could not disavow child). Further, absent truly extraordinary circumstances that physically prevent the husband from filing, he has only one hundred and eighty days from the time he learns or should have learned of the birth to bring the disavowal action. La. Civ. Code art. 189. If the husband dies within the one hundred and eighty days, his heirs or legatees have one year from either his death or the birth of the child, whichever is longer, to bring the action. Thus, the husband himself now has standing to rebut the presumption of his paternity in all circumstances in which the child is not his, but, in most cases, he must bring the action within one hundred and eighty days of the child’s birth or he is forever barred from doing so.
In another relatively recent innovation, the child also has standing to challenge the presumption of paternity. Article 209 provides in pertinent part that ” child not entitled to legitimate filiation nor filiated by the initiative of the parent by legitimation or by acknowledgment under Article 203 must prove filiation.” This article, which was revised in 1980 and interpreted by this court in 1985, gives a child standing to bring a proceeding to filiate himself to his biological father despite the existence of a presumptive father. Griffin v. Succession of Branch, 479 So.2d 324 (La. 1985). However, the Article 209 filiation proceeding does not illegitimate the child. Rather, the child is seen as having both a legal and a biological father and thus enjoys dual paternity. Smith v. Cole, 553 So.2d 847 (La. 1989). Finally, La.R.S. 46:236.1(F) gives standing to the Department of Social Services to rebut the presumption of paternity. This statute allows the DSS to prove the biological paternity of a child, including a child that has a presumed father, solely for the purposes of acquiring support for the child. See Department of Health and Human Resources v. Hinton, 515 So.2d 566 (La. App. 1 Cir. 1987) (holding that the Department could bring filiation proceedings to establish the true paternity of the child for the purposes of obtaining support); La. Atty. Gen. Op. No. 77-361 (noting that the state may seek a determination of paternity and child support from the biological father of a child who has a presumed father).
Thus, the Article 189 disavowal, the Article 209 filiation, and the La.R.S. 46:236.1 determination of paternity are the only three instances in which standing is given to an individual to challenge the legal relationship between a presumed father and his child. Although the mother may bring a filiation action on behalf of her child, she has no independent standing to challenge the presumption of her husband’s paternity. Considering that the La. R.S. 46:236.1 action is available only for the limited purpose of obtaining support for the child and does not give the biological father any parental rights, the father and child themselves are the only ones whom the Code truly allows to challenge the presumed father-child relationship.
In my view, this statutory scheme clearly denies standing to P.W. Given both the long history of protecting both the relationship between the presumed father and the child and the strict guidelines that still control who may challenge the presumption of paternity and when it may be challenged, it is apparent that the Code and its redactors affirmatively chose to deny standing to one in P.W.’s situation.
Moreover, by granting standing only to certain parties and withholding it from others, these codal and statutory laws support several important public policy considerations of the state of Louisiana. First and foremost, these laws protect and strengthen the marital family unit by protecting it from intrusion by biological fathers who have not previously established parental relationships with their children. Second, these laws also protect children by promoting stable family relationships. Finally, these laws protect the substantial and important relationship that develops between a father and child by virtue of the father’s care and nurturance of the child, despite the lack of a biological connection.
The evidence in this case illustrates how denying standing to P.W. will uphold these policies. The record shows that C.M. has, as the trial court noted, an especially close and strong bond with M.M.M. Further, although M.M.M. and T.D. were awarded joint custody of C.M., M.M.M. desired and several times moved for sole custody of the child. Tellingly, M.M.M. moved for sole custody of C.M. soon after P.W. filed his avowal action and the results of the DNA test became known, thereby illustrating the strength of the father-son bond between C.M. and M.M.M. In my view, the Code clearly provides, and the legislature intended, that this father-son relationship be allowed to continue without interference from P.W. Accordingly, I respectfully Dissent.