Proving Paternity - by Presumption and Preclusion

• Author: by Mark E. Sullivan
• Pages: 05

1. INTRODUCTION

Prnate Bill Soldier was the last client of the day when he entered the legal aSSmance office at Fort Bras, North Caroha. He explained to his legal assistance attorney Captain Lawyer, that he had been served with some papers accusing him of being the father of a certain child, and he wanted to know what his rights and defenses were

Without further questioning, Captain Lawyer started an over~v~ew of The paternity process for Private Soldier. HE advice, much like that @"en by other Amy legal assistance attorneys touched on three main points.

First. the matter of paternity claims is covered in Army Regulation 608-99? Under paragraph 3-2 of the regulation, the soldier must be allowed an opportunity to talk with a legal assistance attorney about his legal rights and obligations Under paragraph 3 ~ 3 of the

regulation, nu action by the command may be taken without a court order unless the service member admits paternity and 1s wlllmg to proride support for the child.

A second important point 1s that current developments in tissue testing (commonly called "blood rests") make the proof of paternity by scientific means much easier today. One of the major innoratiom in this area IS human leukocyte antlgen (HLA) testing2 HLA testing first became available m the late 1970's The scientific community views It as a reliable and accurate test far the exclusion of paternity, and accepts It as over mnety-nine percent accurate m the

'Lieutenant Colonel Judle Mrocare General I Carob ILSIRI Currentlv arrirned as

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of falsely accused potential fathers.3 As another means of scientific proof. DK.4 testing LS eren more revolutionar) in Its lm-pact upon paternity IItigatlan Although early claims of accurac) u nh a margin of error of one 2" three billion hale been abandoned DNA testing 1s still a highl) reliable and accurate method of tissue tesring foi paternit) and other purpose5

Finall?, Prnate Soldier should be counseled about the child'j rights to mditaq benefits,' as well as his rights and dutiei regarding cuitodv and \isitation 'I

11. DISCUSSION A. NONSCIENTIFIC ESTABLISHMENT OF PATERNITY

Thii advice would tuffre m man) cases It ignores. howmer, an older approach to proving paternity that isjust as reliable and prattical today ab IT was a centur) ago The nonscientific proof of iidternity originates in concepts of rei judicata. equitable moppel. and thc pre~iirnptionof legitimacy While certainly less exciting than today's scientific technolag) for proof oipatermtyS these valuable mol\ also should be considered h) the legal assistance practmoner

This article proridrs an ovilriiciv of parernicy proof bs meaii~ of

derstanding thebe concepts w.111 gne the legal dssistance attarnr) a valuable addmnnal insighr for counseling paternity defendanra and claimants

presurnptloll Llalm or cnnduct agreement. and adJudlcarlon 1 nThe logical firit step ar thi. stage E to deternun? the mature of t muther'5 claim agamw Private Soldier and the relarimship (if aiof the parties ATP they joined together b) the honds of matrimtr , or on13 b) the parentage claims of a childn Has Prnate Soldier P V C ~

acknoaledged or legitimated the childn Have the pzit~ei been d i ~ vorced dread\''' Has PnL-ate Soltlier formally ackno%%ledgedthe chdd.

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agreed to support the child, or been listed as the father on the birth certificate? The answem to these questions wiii help determine whether paternity has or can be proven by presumption, claim or conduct, agreement, or adjudication.

2. PRIOR MARRIAGE AND DIVORCE

   Suppose, for example, that a pnor divorce judgment names Private Soldier as the father of a child and that his former wife is now suing him for child support. In this case, the advice giren to him would be radically different than that stated above The new advice would focus completely on the issue of res judicata, and Private Soldier would be advised that any motion for blood tests probably would be denied based on the res judicata effect of a divorce judgment finding him to be the father of the child.7

   An example of this TBS judicata effect 1s found in a 1987 Ohio case, In re Gilbraifh a In that case, a chiid was barn out af wedlock. One year later the mother married. One-and-a-haif yean later the mother and her husband were divorced. The divorce petition of the husband, the separation agreement of the parties, and the divorce decree re-ferred to the child as the husband's. The decree and the separation agreement provided for child support. At the time of the divorce, the husband aim legitimated the chiid as his own in a proceeding m the probate court At a later contempt hearing regarding the husband's nonpayment of child support, the husband attempted to deny paternity

   In its decision, the Ohia Supreme Court answered ~n the affirmative "[[]he fundamental question presented to us . [of] whether the judicially created doctnne of resjudicata can be mvoked to give conclusive effect to a determination of paternity cantamed in a dissalution decree or a legitimation order, thereby barring a subsequent paternity action''a

   The court paid particular attention to the salutary ends of the doctrine of resjudicata, which assures that "all htigatmn has a reason-able ending paint and . [Tvhich prevents] a party from having to

   -Donon Y Dortan 69 S C XPP 764 318 S E Zd 314 (1984). Suiton % Sutron. 56 U C APP 740, 289 5 E 2d 618 (19821. llllliams Y Holland 39 Z C ipp 141. 249 S E 2d 821 (19i8)

   '32 Ohio Sf 3d 127, 512 > E Zd 956 (IS871 sid, 513 U E 26 at 958

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   contest the same issue or cause more than once 'I" In accomplishing final settlement between the parties, the doctrine "effectivel) promotes stability. certarnty, respect. consistenq and finalit). both m mdindual judicial determmatians and 1" the legal system ai a whole.""

   The court next focused on the particular application of the principles of resjudicata to the area of paternity litigation It Ftated that in those legal actmns

   where the matter of parentage LS determined nith finalit> and the absence of fraud, and where That determination IS not later vacated, either on direct appeal or pursuant to a recognized legal remedy. the poli~y of this State requires. m sum. that the parent~child relationship be shielded from the unsettling affecrs of further Judicial Inquiry and that reingation of parentage be barred as a general rule. m any subsequent actions .1

   In another case, Decker I decided in 1984 by the Florida District Court of Appeal far the Third D1stmt, the parties were divorced and the judgment named the husband as the father of the child. The judgment incorporated an ahmony. child SUPPOT[. and property settlement entered into by the parties Upon the ex-husband's demal of paternity m a later proceeding far contempt for failure to pay child support. the trial court ordered the mother the father, and the child to submit to an HLA blood test The order also suspended the child support payments of the ex-husband pending the outcome of the blood tests

   Upon appeal by the mother, the orders below were vacated The Court of Appeal stated that

   [,If an alleged father has doubts concerning the paternity of a child born dunng the marriage. he should raise and resolve those doubts during the dissolution proceeding The dirarce action involved an Idennty of the cause of action and parties and involved the same...