Archive for January, 2007

In re TKY-Tennessee

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Legal Images of Fatherhood:

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S T A T E O F M I C H I G A N-C O U R T O F A P P E A L S-NUMERICKv.KRULL

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

WILLIAM D. NUMERICK, JR.,

Plaintiff-Appellant,

FOR PUBLICATION

February 15, 2005

9:00 a.m.

v No. 249172

Grand Traverse Circuit Court

HEATHER A. KRULL, also known as HEATHER

A. SMITH,

LC No. 03-001891-DP

Defendant-Appellee.

Before: Smolenski, P.J., and Saad and Bandstra, JJ.

BANDSTRA, J.

In this paternity action, plaintiff appeals as of right the trial court order granting summary

disposition in favor of defendant. We conclude that the trial court properly determined that

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

controlling case authority, even though the action was brought before defendant gave birth to the

child that plaintiff claims to be his. We affirm.

Plaintiff alleged that, following their relationship during summer 2002, defendant became

pregnant. The relationship ended and, during the pregnancy, on February 21, 2003, plaintiff

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

Nonetheless, defendant married another man on March 28, 2003, and gave birth to a child while

thus married. As a result, the trial court granted defendant’s motion for summary disposition,

reasoning that plaintiff could not maintain this action because the child was not “born out of

wedlock” within the meaning of the statute.

This result was required under the language of the statute as it has been construed in

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

our Supreme Court reasoned that because the statute allows a man to file a complaint to

determine paternity only if the child at issue was “born out of wedlock,”1 the proper focus was

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

section has since been deleted from the statute. Nonetheless, paternity actions under the statute

(continued…)

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on the definition of that term. The statute provides that a “‘[c]hild born out of wedlock’ means a

child begotten and born to a woman who was not married from the conception to the date of birth

of the child, or a child which the court has determined to be a child born during a marriage but

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

that the defendant was married to another man at the time the child was born, the first of these

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

NW2d 558 (1994):

Thus, for a child to be deemed born out of wedlock under the first definition of

that phrase contained in the statute, it is necessary that the mother have been “not

married” for the entire gestation, or “from the conception to the date of birth of

the child.” Because in the case at bar defendant was not, in fact, “not married” for

the entire gestational period, or “from the conception to the date of birth of the

child,” the child was not born out of wedlock.

This Court “has consistently applied the Supreme Court’s interpretation of the standing

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

Mich App 674, 678; 609 NW2d 844 (2000), citing Opland v Kiesgan, 234 Mich App 352, 356;594 NW2d 505 (1999);

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

Plaintiff acknowledges this authority but claims that the present case is distinguishable

because he filed his action before the child was born. Plaintiff does not attempt to explain why

that distinction matters under the statute or the precedents and we conclude that it makes no

difference whatsoever. Quite simply, the statute does not authorize a paternity action brought by

a purported father, except with regard to a child born out of wedlock; that is the case regardless

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

wedlock if her mother has previously married, even if that marriage occurred after the filing of

the action.

Plaintiff claims that it is unfair to allow an unmarried pregnant woman to preclude a

paternity action simply by marrying before a child is born. As with other such policy arguments

raised in previous cases, we conclude that our job is not to re-write the statute and we direct

(…continued)

may only be filed with respect to a “child” defined to be a “child born out of wedlock,” MCL

722.711(b), and accordingly, standing is only granted to men who claim to be fathers to children

born out of wedlock. McHone v Sosnowski, 239 Mich App 674, 677; 609 NW2d 844 (2000).

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

pregnancy of the child’s mother . . . .” MCL 711.714(3). That provision specifies when an

action may be commenced. It does nothing to enlarge the category of persons entitled to file or

maintain an action. Further, the statute provides that, in cases filed before a child is born, “the

case, unless the defendant mother or defendant father consents to trial, shall be continued until

the child is born.” MCL 722.715(2). That would allow a court to determine whether the child

was “born out of wedlock” for purposes of determining whether the action could be maintained.

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

190-191; Spielmaker, supra at 59-60.3

We affirm.

/s/ Richard A. Bandstra

/s/ Michael R. Smolenski

/s/ Henry William Saad

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

but, because these claims were not raised in the question presented and because plaintiff failed to

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

(1999). Further, we note that similar constitutional claims have been rejected in McCone, supra

at 678-679 and Hauser, supra at 187-191.

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S T A T E O F M I C H I G A N-C O U R T O F A P P E A L S

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

In the Matter of SG. TG DG and QR, Minors.

FAMILY INDEPENDENCE AGENCY,

Petitioner-Appellee,

UNPUBLISHED

March 6, 2001

v No. 227520

Ingham Circuit Court

SUSAN GRAHAM, Family Division

LC No. 00-004693-NA

Respondent-Appellant,

and

CHARLES RIGG,

Respondent-Appellant,

and

JACK GRAHAM,

Appellant.

Before: Markey, P.J., and McDonald and K. F. Kelly, JJ.

PER CURIAM.

Respondents Susan Graham and Charles Rigg appeal as of right from the family court’s

order terminating their parental rights pursuant to MCL 712A19b(3)(c)(i), (g) and (j); MSA

27.3178(598.19b)(3)(c)(i), (g) and (j). We affirm as to Susan Graham but vacate as to Charles

Rigg for the reason that Mr. Rigg lacks standing to assert any legal rights as to any of the minor

children at issue herein.

I. Basic Facts and Procedural History

This case has a lengthy factual history spanning over a two and a half year period. Susan

Graham (hereinafter referred to as “Respondent Graham”) has four minor children. All four

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children have different fathers. Respondent Graham claims and Charles Rigg (hereinafter

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

alleging abuse and neglect was filed against Respondent Graham. The initial petition also named

Respondent Graham’s former husband Jack Graham along with Charles Rigg; QR’s “putative

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

the four minor children. Finding that the children’s well being was substantially at risk, the

referee placed the children with the Michigan Family Independence Agency (hereinafter “FIA”)

for out-of-home placement. On June 10, 1997, the court held a hearing and affirmed the

referee’s decision. After Respondent Graham entered a plea, the court took jurisdiction over the

children on July 15, 1997.

The record reflects a sustained effort on the part of the FIA to reunify this family over a

two and half year period. By April 13, 1999, all of the children were placed back in

Respondents’ home. However, in the fall of the same year, the children were once again

removed because of Respondents’ chronic failure to consistently comply with all applicable court

orders.

After conducting a three day hearing, the family court found that the conditions

culminating in adjudication continued to exist. Accordingly, the family court terminated

Respondent Graham’s parental rights to all four children. The family court recognized that

Respondent Rigg did nothing to establish his status as QR’s legal custodian, but notwithstanding,

noted that he participated in the services provided by FIA and also appeared at the termination

hearing. Accordingly, the family court held that it was in the children’s best interest to terminate

Respondent Riggs’ parental rights. The family court further held that it was in QR’s best interest

to terminate Respondent Rigg’s parental rights as QR’s “putitive father.”

II. Standard of Review

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

624; 593 NW2d 520 (1999).

A. Respondent Graham

After carefully reviewing the record, this court is satisfied that the family court did not

clearly err in finding that the provisions delineated in MCL 712A.19b(3)(c)(i), (g) and (j) were

established by clear and convincing evidence, to wit, 182 or more days have elapsed since the

initial dispositional order, and after two and a half years of FIA’s sustained efforts to reunify this

family, respondent is not any closer to that goal than she was when the FIA filed the initial

dispositional order. At one point, the children were placed back with respondent only to be

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

biological father, Respondents did not proffer any evidence at the termination hearing

definitively establishing the biological connection.

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

identified. Respondent Rigg is the only “putative father” that appeared at both the initial hearing

in May, 1997 and the termination hearing in April, 2000.

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removed from her care a second time. Respondent’s failure to consistently comply with all

applicable court orders for the preceding two and a half years strongly suggests that respondent

will not be able to do so within a reasonable time considering the children’s age. Moreover, the

record indicates that if the children are returned to respondent’s home again, there is a reasonable

likelihood that the children would be harmed. Accordingly, with regard to respondent Graham,

this court affirms the family court’s findings and disposition in all respects.

B. Respondent Rigg

The parties did not raise an issue concerning Respondent Rigg’s standing to appeal the

family court’s determination due to Respondent Rigg’s failure to obtain documentary evidence

establishing his paternity. Although all parties seem to accept that Respondent Rigg is QR’s

“putative father,” the fact remains that the lower court record is devoid of evidence definitively

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

whether Respondent Rigg has standing to appeal the family court’s decision. We hold that he

does not. We therefore vacate that part of the family court’s decision insofar as it pertains to

Respondent Rigg for the reasons discussed herein.

1. Respondent Rigg’s Standing

The Juvenile Code defines the term “father” at MCR 5.903(A)(4)(a) as “a man married to

the mother at any time from a minor’s conception to the minor’s birth unless the minor is

determined to be a child born out of wedlock.” The term “child born out of wedlock” is a term

of art defined in the current version of the Paternity Act as:

“[a] child begotten and born to a woman who was not married from the

conception to the date of birth of the child, or a child that the court has determined

to be a child born or conceived during a marriage but not the issue of that

marriage.” MCL 722.711(a).

In the case at bar, the record is unequivocal. Although Respondent Rigg and Respondent

Graham both acknowledge that Respondent Rigg is QR’s biological father, it is undisputed that

at the time of QR’s birth, Respondent Graham was married to Jack Graham. Respondent Rigg

testified that he was not permitted to sign an Acknowledgment of Paternity because Respondent

Graham was still married. Respondent Rigg further testified that even after a court held a

hearing and annulled the marriage between Respondent Graham and Jack Graham, Respondent

Rigg failed to follow the necessary steps to definitively establish paternity. Absent an

adjudication by a court of competent jurisdiction finding that QR was a “[c]hild . . .born or

conceived during a marriage but not the issue of that marriage,” for purposes of the Paternity Act,

Respondent Rigg, as the purported biological father, lacked the requisite standing to establish his

paternity3.

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

biological father did not have standing to pursue an Order of Filiation when there was no prior

judicial determination that the child was not the issue of the marriage).

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The family court recognized that Respondent Rigg was not QR’s legal father by virtue of

Respondent Graham’s marriage to another man at the time of QR’s birth. Notwithstanding, the

family court referred to Respondent Rigg as QR’s “putative father.” In that capacity, the family

court proceeded to determine whether it was in QR’s best interest to terminate Respondent

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

provided QR with a legal “father” as defined in MCR 5.903(A)(4), Respondent Rigg cannot be

QR’s “putative father.” A “putative father” cannot coexist with a legal father irrespective of any

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

239 Mich App 674; 609 NW2d 844 (2000).

For purposes of the termination proceedings therefore, Jack Graham is presumed to be

QR’s legal father. Accordingly, as the legal father, only Jack Graham would have the requisite

standing to appeal the family court’s findings. Respondent Rigg does not. Since Respondent

Rigg lacks standing to establish paternity, Respondent Rigg lacks standing to appeal the family

court’s determination that it is in QR’s best interest to terminate his parental rights. However,

even if Respondent Rigg established paternity and had standing to appeal the family court’s

decision as to QR, there was ample evidence placed on the record to support the family court’s

decision that it was not in the children’s best interest to continue with reunification efforts and

terminate Respondents’ parental rights. Despite two and a half years of substantial agency

service, the record reveals that Respondents failed to make any significant changes in virtually all

areas of concern.

II. Conclusion

Decision affirmed as to Respondent Graham but vacated as to Respondent Rigg for the

reasons discussed herein.

/s/ Jane E. Markey

/s/ Gary R.. McDonald

/s/ Kirsten Frank Kelly

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

with regard to QR. The court stated, “[t]he Court does recognize that . . .Mr. Rigg has not

stepped forward, though he has testified today that he was the father of [QR], he has not stepped

forward to sign an Affidavit of Paternity. His is not the legal father of [QR]. He’s the putative

father with testimony that he believes he is the father. [T]he Court is certainly aware of how he

is viewed by the law as it relates to [QR]and . . .will keep that in mind in determining whether or

not, as a putative father, his rights should be terminated in [QR].”

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Commonwealth Of Kentucky-Court of Appeals

RENDERED: SEPTEMBER 1, 2006; 10:00 A.M.

TO BE PUBLISHED

MODIFIED: OCTOBER 13, 2006; 10:00 A.M.

Commonwealth Of Kentucky

Court of Appeals

NO. 2005-CA-000834-ME

JACQUELINE HINSHAW (now LENARZ) APPELLANT

APPEAL FROM JEFFERSON FAMILY COURT

v. HONORABLE VIRGINIA WHITTINGHILL, SPECIAL JUDGE

ACTION NO. 03-CI-502107

REN RICKY HINSHAW;

SANDRA RAGLAND;

DONNA L. DELAHANTY (GUARDIAN AD LITEM) APPELLEES

OPINION

AFFIRMING

** ** ** ** **

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

BUCKINGHAM, SENIOR JUDGE: Jacqueline Ann Hinshaw (now Lenarz)

appeals from an order of the Jefferson Family Court awarding her

joint custody of her son, Asher John Hinshaw, with her exhusband,

Ren Ricky Hinshaw, and designating Ren as the primary

residential custodian. She also appeals from the portion of the

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

the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution

and KRS 21.580.

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court’s order directing her to pay $25,000 of Ren’s attorney

fees. We affirm.

Jacqueline and Ren were married on December 29, 1988.

Asher was born on June 28, 1999. Ren was present in the

delivery room and cut the umbilical cord. Asher’s birth

certificate lists Ren as the father.

In January 2003, Jacqueline filed for divorce. In her

verified petition of dissolution, she stated that she and Ren

were the parents of one child, Asher. Later, however,

Jacqueline amended her petition and alleged that Ren was not the

child’s father. She also sought court-ordered DNA testing to

prove her claim.

The DNA test results, introduced by avowal, indicated

that there was a 0.00% chance that Ren was Asher’s biological

father. Following the disclosure of the test results,

Jacqueline filed an amended petition and named a third party as

the biological father. She also sought to have the court deny

Ren custody because he was not the biological father.

Over Jacqueline’s objections, the court appointed a

clinical psychologist, Dr. Edward P. Berla, to serve as the

custodial evaluator. Dr. Berla conducted interviews with the

child and with both parties. He concluded that “Asher has

bonded with the Respondent [Ren] and it would be very

devastating to him if Respondent was not in his life.” Dr.

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Berla also stated in his report that “severing [the relationship

between Ren and Asher] would at the very least cause Asher

severe emotional and psychological harm.”

The evidence showed a strong father-son relationship

between Ren and Asher. From the start, Ren has been active in

all parts of Asher’s life. Ren often served as the principal

caregiver because his work hours allowed more flexibility than

Jacqueline’s. Ren shared equally in caring for and raising

Asher. This included changing, feeding, daycare, potty

training, and teaching to talk. Ren is also active as a

volunteer at Asher’s school, and he has served as a coach for

extracurricular activities in which Asher was involved.

Jacqueline never revealed to Ren that he was not

Asher’s father until after filing for divorce. At all times in

the marriage, she represented to Ren that he was Asher’s

biological father. She encouraged the strong father-son

relationship between Ren and Asher, and Ren is the only father

Asher has ever known.

The family court concluded that equitable estoppel

applied to preclude Jacqueline from challenging Ren’s custody

rights based on DNA testing. The court found that Ren was

Asher’s legal father, and it determined that the parties were on

equal footing in the matter of custody. The court then ordered

that the parties should share joint custody, with Ren being the

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primary residential custodial. Further, the court directed

Jacqueline to pay $25,000 of Ren’s attorney fees. This appeal

by Jacqueline followed.

Jacqueline first argues that the court erred in its

application of KRS2 406.011 and KRS 406.111. KRS 406.011

provides in part that “[a] child born during lawful wedlock, or

within ten (10) months thereafter, is presumed to be the child

of the husband and wife.” That presumption is rebuttable,

however. See Simmons v. Simmons, 479 S.W.2d 585, 587 (Ky.

1972).

KRS 406.091(3) provides that “[g]enetic test results

are admissible and shall be weighed along with other evidence of

the alleged father’s paternity.” KRS 406.111 provides in part

that “[i]f the court finds that the conclusions of all the

experts, as disclosed by the evidence based upon the test, are

that the alleged father is not the father of the child, the

question of paternity shall be resolved accordingly.”

Jacqueline argues that the DNA test results conclusively rebut

the presumption of paternity and that Ren may not stand on equal

footing with her in the custody dispute.

Jacqueline’s argument overlooks the fact that this

case is not about paternity but is about the custody rights

between a husband and wife as they relate to a child born and

2 Kentucky Revised Statutes.

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raised within the confines of their marriage. In Bartlett v.

Com. ex rel. Calloway, 705 S.W.2d 470 (Ky. 1986), the Kentucky

Supreme Court recognized that an action to determine the

paternity of a third party to a child born during a marriage

between a husband and wife did not adjudicate the rights and

duties of the husband, who was not a party to the case. Id. at

473. In short, the determination that Ren is not Asher’s

biological father does not mean Ren is without custody rights.

Jacqueline next argues that the family court erred in

its application of equitable estoppel. She maintains that

equitable estoppel could not be properly asserted by Ren and

that, even if it the doctrine could have been asserted

otherwise, it was error by the court to allow it to be asserted

by Ren in this case.

Jacqueline argues that equitable estoppel could not be

invoked by Ren because Kentucky law has not recognized the use

of the doctrine in child custody cases and because the doctrine

was specifically rejected in such a case by this court in

Consalvi v. Cawood, 63 S.W.3d 195 (Ky.App. 2001). We agree that

the doctrine has not been adopted by the courts of this state in

child custody cases. However, we disagree that this court

rejected the applicability of the doctrine in the Consalvi case.

In fact, the court there recognized that “[i]t may be that an

argument for estoppel can be made; however, the trial court

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specified that its finding was based on a principle of

waiver[.]” Id. at 198.

The court here relied on cases from other

jurisdictions in determining that the doctrine of equitable

estoppel was applicable. In Pettinato v. Pettinato, 582 A.2d

909 (R.I. 1990), the court concluded, in circumstances similar

to those herein, that equitable estoppel applied to preclude the

mother from denying the husband’s custody rights based on DNA

test results. Id. at 912. As in this case, in Pettinato the

couple engaged in sexual relations during the time of

conception, the husband was named as the father on the birth

certificate, and the husband first became aware of the paternity

issue when it was raised in the divorce proceeding. After DNA

testing revealed that the husband was not the child’s father,

the mother sought to deny his custody rights.

The appellate court in Pettinato ultimately concluded

that “a mother should be equitably estopped from using the

genetic blood testing permitted by [statute] to disestablish a

child’s paternity in connection with a routine divorce

proceeding.” Id. The court further stated that “[t]he

underlying rationale of the equitable-estoppel doctrine is that

‘under certain circumstances, a person might be estopped from

challenging paternity where that person has by his or her

conduct accepted a given person as father of the child.’” Id. at

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912-13, quoting John M. v. Paula T., 571 A.2d 1380, 1386 (Pa.

1990). The court further concluded that the “evidence of

genetic blood tests is considered irrelevant in a divorce

proceeding wherein the basic issue is the termination of the

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

court stated that “[t]he law will not permit a person in these

situations to challenge the status which he or she has

previously accepted [or created].” Id.4

In J. Branham Erecting & Steel Serv. Co., Inc. v.

Kentucky Unemployment Insur. Comm’n, 880 S.W.2d 896 (Ky.App.

1994), this court set forth the elements of equitable estoppel

as follows:

These elements include: (1) Conduct,

including acts, language and silence,

amounting to a representation or concealment

of material facts; (2) the estopped party

is aware of these facts; (3) these facts

are unknown to the other party; (4) the

estopped party must act with the intention

or expectation his conduct will be acted

upon; and (5) the other party in fact relied

on this conduct to his detriment.

Id. at 898, quoting Gray v. Jackson Prod. Credit Assoc., 691

S.W.2d 904, 906 (Ky.App. 1985). We conclude that the sound

3 Likewise, the family court here disallowed the DNA test results as evidence.

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

application of the doctrine of equitable estoppel in situations like those

here. See Boyles v. Boyles, 466 N.Y.S.2d 762 (N.Y.App.Div. 1983); Sharon GG

v. Duane HH, 467 N.Y.S.2d 941 (N.Y.App.Div. 1983); In re Hodge, 733 P.2d 458

(Or.Ct.App. 1987); Riddle v. Riddle, 63 Ohio Misc.2d 43, 619 N.E.2d 1201

(Ohio Ct. of Common Pleas 1992).

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reasons given by the Rhode Island court in the Pettinato case to

apply the doctrine of equitable estoppel are equally applicable

to this case. Therefore, we conclude that the family court here

did not err or abuse its discretion in this regard.

Jacqueline further argues that even if equitable

estoppel would otherwise be applicable, it should not apply in

this case because Ren did not rely on her conduct to his

detriment. She reasons that Ren would have continued his

relationship with and support for Asher even had he known that

he was not Asher’s biological father.

Saying that Ren would have continued his relationship

with and support for Asher is not the same as saying he would

have taken no action. By withholding the true state of Ren’s

relationship to the child, Jacqueline precluded Ren from seeking

legal advice as to the extent of his relationship with Asher and

his rights and obligations in relation to Jacqueline and the

biological father.

For example, had Ren known the truth, he might have

sought to have Jacqueline institute legal action to terminate

the biological father’s parental rights so that he could adopt

the child. As an adoptive parent, Ren would have been on equal

footing with Jacqueline in any custody dispute. Given the

knowledge denied Ren by Jacqueline’s actions, we conclude it was

not error for the court to conclude that Ren relied on

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Jacqueline’s representations to his detriment. Therefore, we

further conclude that the court did not abuse its discretion in

applying equitable estoppel and in granting the parties joint

custody with Ren as the primary residential custodian.

Finally, we turn to Jacqueline’s argument that the

court erred when it directed that she pay $25,000 of Ren’s

attorney fees. She asserts the court erroneously determined

that $20,000 given to Ren from his father to help defray Ren’s

attorney fees was a loan rather than a gift.

Contrary to Jacqueline’s assertion, the court did not

base its award to Ren solely on its finding that Ren intended to

pay his father back. In fact, the court first noted that it was

required to consider the financial resources of the parties and

that Jacqueline earned substantially more money than Ren. See

KRS 403.220. The court also noted that Jacqueline was now

experiencing a higher standard of living than she had before.

The award of attorney fees is entirely within the

discretion of the trial court. Poe v. Poe, 711 S.W.2d 849, 852

(Ky.App. 1986). We conclude that the record supported the

findings of the court in this matter. Therefore, we find no

abuse of discretion in the award.

The order of the Jefferson Family Court is affirmed.

ALL CONCUR.

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BRIEF FOR APPELLANT:

Peter L. Ostermiller

Louisville, Kentucky

James P. McCrocklin

Louisville, Kentucky

BRIEF FOR APPELLEE, REN RICKY

HINSHAW:

Stephen P. Imhoff

Louisville, Kentucky

BRIEF FOR APPELLEE, SANDRA

RAGLAND:

Sandra Ragland

Diana L. Skaggs & Associates

Louisville, Kentucky

BRIEF FOR APPELLEE, DONNA L.

DeLAHANTY:

Donna L. Delahanty

Louisville, Kentucky

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No Man Can Count On Justice In Family Court, Argues An Angry Professor

The Fix Is In
No Man Can Count On Justice In Family Court, Argues An Angry Professor
By Stephen Baskerville

     Trevor Gallahan’s father is going to jail. He has not been charged with any crime. He is not behind in child support. He has not battered anyone. Yet Ken Gallahan could conceivably remain in jail for the rest of his life. What is his infraction? He does not have $15,000 to pay a lawyer he never hired. He was already jailed indefinitely when he could not pay a psychotherapist he also had not hired and was released only when his mother paid the fees.
     Debtors’ prisons were theoretically abolished long ago, but this does not stop family court judges from using the bench to shake down fathers who have done nothing wrong and funnel everything they have into the pockets of the court’s cronies. In fact the looting and criminalization of fathers like Ken Gallahan is now routine in divorce courts.
     Family courts are the arm of the state that routinely reaches farthest into the private lives of individuals and families, yet they are answerable to virtually no one. By their own assessment, according to Robert W. Page of the New Jersey Family Court, “the power of family court judges is almost unlimited.” Others have commented on their vast and intrusive powers less charitably. Malcolm X once called family courts “modern slavery,” and former Supreme Court Justice Abe Fortas termed them “kangaroo” courts. One father was told by a judicial investigator in New Jersey, “The provisions of the US Constitution do not apply in domestic relations cases, since they are determined in a court of equity rather than a court of law.”
     The plunder of fathers invariably begins with the taking of their children. Despite formal legal equality between parents, some 85-90% of custody awards go to mothers. This is despite the fact that it is usually the mother who seeks the divorce, and most often without grounds of wrongdoing by the father. In fact a mother can have a half-dozen previous divorces, she can commit adultery, she can level false charges, she can assault the father, in some cases she can even abuse the children, and none of these (except in extreme cases the last) has any bearing on a custody decision.
     A mother who consults a divorce attorney today will be advised that her best strategy is simply to take the children and their effects and leave without warning. If she has no place to go, she will be told that by accusing the father of sexual or physical abuse (or even simply stating that she is “in fear”) she can obtain a restraining order immediately forcing him out of the family home, often without so much as a hearing. She will also learn that not only can she not be punished for either of these actions, they cannot even be used against her in a custody decision. In fact they work so strongly in her favor that failure to apprise a female client of these options may be considered legal malpractice.
     Mothers who abduct children and keep them from their fathers are routinely rewarded with immediate “temporary” custody. In fact this is almost never temporary. Once she has custody it cannot be changed without a lengthy and expensive court battle. The sooner and the longer she can establish herself as the sole caretaker the more difficult and costly it is to dislodge her. The more she cuts the children off from the father, alienates them from the father, slings false charges, and delays the proceedings, the more she makes the path of least resistance (and highest earnings) to leave her with sole custody. In short, the more belligerence she displays and the more litigation she creates, the more grateful the courts will be for the business she provides.
     For a father the simple fact of his being a father is enough for him to be summoned to court, stripped of all decision-making rights over his children, ordered to stay away from them six days out of seven, and ordered to make child support payments that may amount to two-thirds or more of his income. Like Ken Gallahan, he can also be forced to pay almost any amount to lawyers and psychotherapists and summarily jailed if he is unwilling or unable.
     What is happening to fathers in divorce courts is much more serious than unfair gender bias. An iron triangle of lawyers, judges, and women’s groups is finding it increasingly easy – and lucrative – to simply throw fathers out of their families with no show of wrongdoing whatever and seize control of their children and everything they have. Family courts have in effect declared to the mothers of America: If you file for divorce we can take everything your husband has and divide it among ourselves, with the bulk of it going to you. We can take his children, his home, his income, his savings, and his inheritance and reduce him to beggary. And if he raises any objection we can throw him in jail without trial.
     The astounding fact is that, with the exception of convicted criminals, no group today has fewer rights than fathers. Even accused criminals have the right to due process of law, to know the charges against them, to face their accusers, to a lawyer, and to a trial. A father can be deprived of his children, his home, his savings, his livelihood, his privacy, and his freedom without any of these constitutional protections. And not only a divorced father or a unmarried father: Any father at any time can find himself in court and in jail. Once a man has a child he forfeits his most important constitutional rights.
     The words “divorce” and “custody” have become deceptively innocuous-sounding terms. We should remind ourselves that they involve bringing the coercive apparatus of the state – police, courts, and jails – into the home for use against family members. When we recall that those family members may not even be charged with any legal wrongdoing we can begin to grasp the full horror of what is taking place and how far the divorce machinery has been fashioned into an instrument of terror. As citizens of communist Eastern Europe once did, it is now fathers who live in fear of the “knock on the door.”
     So what can a father do to escape the fate of Ken Gallahan and millions like him? Very little, and divorce manuals encouraging fathers with advice on how to win custody are not doing them any favors. The latest wisdom informs fathers that the game is so rigged that their best hope of keeping their children is not to wait for their day in court but to adopt the techniques of mothers: If you think she is about to snatch, snatch first. “If you do not take action,” writes author Robert Seidenberg, “your wife will. If this advice is sound, the custody industry has turned marriage into a “race to the trigger,” to adopt the terms of nuclear deterrence replete with the pre-emptive strike: Whoever snatches first survives.
     If you don’t have the stomach for this, then you probably should not marry and not have children.

Stephen Baskerville is a professor of Political Science at Howard University.

Comments (2)

COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA

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, Louisiana
Trial 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 mother
told 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
Louisiana
Legislature 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 man
asserted 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 rare
and 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 the
benefits 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 required
that 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 the
current 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, which
8enacted 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. 

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