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A man's due process rights were violated when the state implemented a support order for the child born to his estranged wife during their now defunct marriage without providing him an opportunity to rebut the presumption of legitimacy, the Alaska Supreme Court held Aug. 18.
The court said the state had predetermined that the man was the ''legal father'' of the child when he was merely the legally presumed father. Asserting that the difference was significant, it said that once the state took action to enforce the presumption that the man fathered the child born during his marriage by issuing an administrative support order, the man was entitled to a formal opportunity to rebut the presumption before the order became final (the state was in fact aware that the man was not the child's natural father).
Finding that the state told the man that his only recourse from the administrative action was to initiate a paternity suit, the court explained that this position denied him due process because arrears that accrue prior to an order disestablishing paternity are final judgments that cannot be retroactively modified. Thus, it said, the legally presumed father is liable for arrears and has no recourse; ''such a procedure denies a fundamental aspect of due process, the right to be heard,'' it asserted. (State v. Maxwell, Alaska, No. 8886, 8/18/00)
The court elaborated on this issue in another case issued the same day, holding that a man's erroneous acknowledgment of paternity created no duty of support for an out-of-wedlock child. Recognizing that an acknowledgment of paternity presumptively establishes a legal parent-child relationship regardless of biological parenthood, it stressed that this presumption is not to be confused with a paternity judgment. Accordingly, the court ruled that the state, in an attempt to recoup welfare benefits paid to the mother, could not obtain support arrearages from the man for the period between his mistaken acknowledgment and his receipt of the arrearage notice.
It explained that it wasn't until he received the notice did he have a formal opportunity to rebut the presumptive parent-child relationship. (State v. Button, Alaska, No. 8792/8942, 8/18/00)
Dad is more than non-parent
A trial court erred, in denying a father's petition for custody of his daughter who was living with her mother's aunt and uncle, by failing to first determine whether granting him custody would substantially harm the child, the Tennessee Court of Appeals ruled Aug. 16.
Following the parents' divorce they had agreed to an order placing the child with the aunt and uncle; however, the father had sued for custody when the aunt and uncle sought court permission to move to another state with the child. The trial court found that the father had not shown a change of circumstances regarding the child's custodians and denied his request, and instead permitted the aunt and uncle to move.
Addressing the father's appeal, the court emphasized that no order awarding permanent custody to the aunt and uncle, based on an implicit or explicit finding that the natural parents were unfit or that substantial harm would result to the child if custody were granted to one of the parents, had ever been entered. In the absence of such an order, it said, the trial court was required, in considering the father's petition for custody, to determine if he was unfit or whether the child would suffer substantial harm if he were given custody.
However, the court noted, the trial court instead held that, in order to be awarded custody, the father was required to show there had been a material change in circumstances with regard to the aunt and uncle. It concluded that the lower court had applied the wrong legal standard, and it thus remanded for a determination of whether the father was an unfit parent or whether granting him custody would result in substantial detriment to the child.
If such a finding were made, it said, the trial court might then evaluate custody in light of the child's best interest. (Heathman-Wood v. Wood, Tenn. Ct. App., No. M1999-00341-COA-R3-CV, 8/16/00)
Anti-Heartbalm Law Doesn't Bar Man
From Suing Wife and Father of Her Child
The anguish suffered by a man upon discovering that his wife and her paramour had concealed the parentage of the child born during his marriage may be actionable under the theory of intentional infliction of emotional distress, the Ohio Court of Appeals, Seventh District, held Aug. 11. Ruling that the claim was not a disguised attempt to revive an abolished amatory action such as alienation of affections, the court went on the find, however, that the man had failed to show the level of outrageousness needed to prevail in his suit (Bailey v. Searles-Bailey, Ohio Ct. App., No. 98 CA 87, 8/11/00).
When the man's wife became pregnant during their marriage, she was not sure whether he or her paramour was the child's father. She did not mention her concern to her husband, but they divorced shortly after blood tests showed that the then almost one-year-old child was fathered by the paramour. The husband filed suit against the wife and paramour alleging intentional infliction of emotional distress, requesting compensatory and punitive damages. The suit resulted in a $45,000 judgment for the husband, along with $5,000 in punitive damages. All parties appealed.
Abolished Actions
The court phrased the issue before it as ''whether the concealment by a wife and her paramour of the fact that the husband is not the father of a child is actionable under the theory of intentional infliction of emotional distress,'' notwithstanding the state law abolishing amatory actions (breach of promise to marry, alienation of affections, criminal conversation, and seduction). Saying that the statute and related case law were not the death knell for all causes of action that merely involve formerly amatory actions, the court set out what it saw as the proper threshold test for determining when a claim for the intentional infliction of emotional distress involving an extra-marital affair could go forward.
Under the two-part test, the court said a judge must examine whether the claim was a disguised substitute for one of the abolished amatory claims. If a claim passes that hurdle, the court instructed that the judge must then determine whether the harm to the claimant was serious.
The court found that the husband's claim was based upon the emotional distress he sustained in finding out that the child born during his marriage was not his biological child, and not on the fact that his wife was having an adulterous affair. Noting that all parties conceded that the harm to the husband was ''severe and serious,'' it said that his claim was properly considered by the trial court.
Elements of Tort
However, this did not end the matter, as the court next turned to whether the husband had proved all elements of the emotional distress tort. Finding that the wife and paramour did not contest the fact that the husband sustained serious mental anguish or that it was the proximate result of their concealment of his possible non-paternity of the child, the court looked to whether their conduct could be characterized as extreme or outrageous.
Starting with the paramour, the court determined that his failure to reveal his own uncertainty of paternity to the husband could not be characterized as outrageous conduct. To hold otherwise would mean that such a disclosure was so normal and socially usual that its rare deviation would outrage society, it explained. While the paramour's conduct might be ''reprehensible and morally deficient,'' his concealment of his possible paternity did not constitute the intentional infliction of emotional distress, it said.
Avoiding Suffering
Next addressing the wife's claim that she was not concealing the child's paternity from the husband but rather was concealing her own uncertainty of paternity in order to avoid, not cause, his suffering of emotional distress, the court noted that she considered her conduct to be in conformity with the presumption of legitimacy.
The question was whether the wife acted extremely and outrageously by failing to inform her husband sooner that her child may not be his--that her concealment of her uncertainty during pregnancy and through the first year of the child's life was ''beyond all possible bounds of decency and utterly intolerable in a civilized society,'' the court said. Asserting that the wife's conduct must be viewed in context, it decided that her failure to immediately inform her husband upon learning of her pregnancy that the child might not be his did not constitute extreme and outrageous conduct. No evidence was presented at trial that demonstrated outrageous or atrocious conduct on her part as a matter of law, the court explained.
The court thus reversed the judgment against both the wife and the paramour.
One judge dissented in part, arguing that the wife ''could and did'' engage in outrageous conduct toward the husband.
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