Non-DNA Parenthood

December 5, 2013 § 2 Comments

Disestablishing parentage has been a statutory procedure since 2011, when the legislature adopted MCA 93-9-10. I posted here an annotated version of the provision that set out my opinion of how to plead and prove it.

The MSSC at last was presented with an opportunity to address its application in the case of Jones v. Mallett, et al., handed down November 14, 2013.

Terence Jones was involved in a romantic relationship with Annette Mallett in 2000. Mallett gave birth to a child on August 22 of that year. Mallett says that she told Jones he was not the father when she learned of the pregnancy. Jones claims that he did not learn that he was not the father until after signing the paternity agreement and birth certificate application, or as much as four months later.

Jones was listed as the father on the birth certificate, and he signed it. In October, 2000, he and DHS entered into a “Stipulated Agreement of Support and Admission of Paternity,” which was approved by order of the chancery court.

In December, 2010, Jones had a DNA test performed, which excluded him as the father. He filed an action in chancery court to disestablish paternity, rather than a MRCP 60(b)(5) or (6) motion. The chancellor eventually dismissed Terence’s pleading, based on MCA 93-9-10. Terence appealed.

The supreme court brushed aside Terence’s argument that the agreement was the result of a “material mistake of fact” under MCA 93-9-10(3)(b), finding that “The facts as presented do not establish sufficient circumstances for the application of subsection (b).” [ ¶7 ]

Terence also argued that subsections (c) and (d) must be read together, mandating a finding that he meets the criteria for disestablishment, but the court rejected that position, pointing out that (c) relates to stipulations of paternity, and (d) relates to stipulations of support, which are two different things.

That last point is critical to the case because (c) says that the court may not set aside an agreement of paternity that has been approved by the court (as this one had been). Subsection (d), on the other hand allows disestablishment of parentage if he signed an agreement of support without knowledge that he is not the father of the child. That without knowledge language is significantly absent from (c). Since Terence had signed both, he had no wiggle room.

To me, the MSSC is sending the signal via this opinion that the statute will be strictly applied.

No doubt the considerable passage of time from the signing of the paternity agreement to DNA testing and the filing of suit and eventual court appearance figured into the unhappy result for Terence.

A MINORITY CONUNDRUM

March 19, 2013 § 2 Comments

I posted here about a case pending in my court in which a lawyer had filed a motion to void two agreed judgments for custody that had been executed by a 19-year-old mother. The basis for his motion was that the mother lacked the legal capacity to execute the judgments, and that they were not binding on her in any way.

The lawyers have settled the case, and the now-22-year-old mother has signed an agreed order that has the effect of supplanting the previous agreed judgments. So the concern about her legal capacity is moot in that case.

Still, the state of the law has me concerned. I did not find any authority for an unmarried minor to enter into an agreed judgment in  a case of this sort. Neither did my staff attorney or even other judges who took the time to answer my query on our listserv. I found no authority, either, for subsequent ratification or approval by the court, although other states have addressed the ratification issue.

The reason for my concern is that a married minor is considered emancipated for the purpose of dealing with divorce, custody and support, but an unmarried minor is in a legal limbo vis a vis his or her offspring. Is there any legal or policy reason, given Mississippi’s high rate of unmarried parenthood, why we do not go ahead and recognize that young, unmarried parents, at least in the 18-21 age group, should not also be considered emancipated for the purpose of dealing with child custody and other parentage issues? Young people in that age group are emancipated by law to deal with their choses in action, so why do we not emancipate them by statute to deal with their parentage issues?

I wish that the legislature would look at this issue in light of the reality many of see every day in our state: children are having children. We have to have effective ways to deal with that.

FATHER FOREVER

October 4, 2011 § 7 Comments

I posted here about the new statutory procedure to disestablish paternity.

One of the interesting aspects of the new code section is that it enumerates the reasons that would disqualify a father from attempting to prove he is not the father.

The flip side of the coin, then, is that these are the bases that conclusively establish paternity and preclude the mother or anyone else from denying his parentage. From the statute, the man is the father if he did any one of the following:

(a) Married or cohabited with the mother and assumed parental obligation and support of the child after having knowledge that he was not the biological father;

(b) consented to be named as father on the birth certificate or signed an acknowledgment of paternity and failed to withdraw within the time periods mandated by MCA §§ 93-9-9 and 93-9-28, unless he can prove fraud, duress, or material mistake of fact;

(c) signed a stipulated agreement of paternity that has been approved by order of the court;

(d) signed a stipulated agreement of support that has been approved by order of the court after having knowledge that he is not the biological father;

(e) had been named as legal father or ordered to pay support after he declined to undergo genetic testing; or

(f) failed to appear for a genetic testing draw pursuant to a valid court order.

I am not aware of any other place where these bases for paternity have before been listed in such a handy form.

DISESTABLISHING PARENTAGE, STEP BY STEP

September 20, 2011 § 5 Comments

As I posted here before, the legislature has adopted a procedure to disestablish parentage (paternity) in light of Williams v. Williams, 843 So.2d 720 (Miss. 2003), and its progeny, which hold that a man who is determined by DNA testing not to be the father of a child should not continue to be responsible for the support of that child.

The new code section, MCA § 93-9-10, went into effect July 1, 2011.  The very first sentence of the statute states that “This section establishes the circumstances under which a legal father may disestablish paternity and terminate child support when the father is not the biological father of the child.” In my opinion, this code section is now the exclusive remedy for a father in these circumstances. Any proceeding such as a petition to remove the father from the birth certificate, or a joint petition to disestablish paternity, or a modification pleading that does not meet the requirements of the statute will be ineffective.

You may well ask, “But if the father and mother agree, what is the harm? Why not simply approve their agreement?” First of all, there are the welfare and rights of the child to consider. See, Kelly v. Day, 965 So.2d 749 (Miss. App. 2007).  And secondly, if the procedure is ineffective, the child will have a later cause of action for support, making the whole earlier procedure a waste of time.

Before I step through the statute with you, please let me urge you to read the statute. I swear, it won’t take more than five minutes. If you’re going to advise clients about this, you need to be familiar with what it says.

So here is the procedure, step by step (statutory requirements in bold, my comments in regular font):

  1. The father must file a petition in the court having jurisdiction over the child support obligation. This means that if the county court, or chancery court in another county, has entered a child support order, the petition must be filed in that court.
  2. Process and a copy of the petition must be served on the other parent or guardian; if DHS is or has been a party to the paternity action or collection of child support, the Attorney General of the State of Mississippi must be served with process. In my opinion, since this action is under the chapter dealing with parentage (bastardy), 30-day process would be required pursuant to MRCP 81 (d)(1).
  3. The petition must include: (a) an affidavit executed by the petitioner that he or she (there is nothing in the statute that says that the mother is precluded from filing a petition) has newly-discovered evidence since the paternity determination relating to parentage of the child, and (b) the results of a genetic or other scientific parentage test administered within one year of the filing of the petition excluding the legal father as biological father of the child or an affidavit executed by the petitioner that he did not have access to the child for testing before the filing of the petition; in the latter case, the petitioner may request that the mother (if available), child and father submit to such testing.
  4. The court shall grant the relief on a properly filed petition if the court finds all of the following: (a) There is newly-discovered evidence as averred; (b) the scientific testing was properly conducted; (c) the legal father has not adopted the child; (d) the child was not conceived by artificial insemination while the legal father and mother were married; (e) the legal father did not prevent the biological father from asserting his parental rights with respect to the child. I recommend that your petition include allegations (a) through (e). Your client is swearing that all of these statements are true, and you are vouching under MRCP 11 (a) that the pleading has “good ground to support it.” And make sure your client reads it before signing. He is swearing all of this is true, andd if he balks or hems and haws, you might want to think about going back to the drawing board.
  5. The court shall not set aside the paternity determination or child support order if the court finds that the legal father did any of the following: (a) Married or cohabited with the mother and assumed parental obligation and support of the child after having knowledge that he was not the biological father; (b) consented to be named as father on the birth certificate or signed an acknowledgment of paternity and failed to withdraw within the time periods mandated by MCA §§ 93-9-9 and 93-9-28, unless he can prove fraud, duress, or material mistake of fact; (c) signed a stipulated agreement of paternity that has been approved by order of the court; (d) signed a stipulated agreement of support that has been approved by order of the court after having knowledge that he is not the biological father; (e) been named as legal father or ordered to pay support after he declined to undergo genetic testing; or (f) failed to appear for a genetic testing draw pursuant to a valid court order. Same advice here about incorporating these as allegations in your petition. Make your client swear that he has not done any of the foregoing. The rationale above applies here.
  6. If the petitioner does not make the required showing, the court shall deny the petition.
  7. Relief is limited to prospective (future) child support, past-due child support payments, termination of parental rights, custody and visitation. The statute does not create a cause of action to recover child support paid before filing of the petition. The statutory procedure can not be used to litigate previously-paid child support. It can be used to address past-due child support, parental rights, custody and visitation.
  8. The court may not suspend the child support obligation while the petition is pending, although the court may order that such payments may be held by the court or DHS pending a final determination. My suggestion is to plead for the court or DHS to hold the child support funds pending litigation, if that is what your client wants. If you don’t specifically ask in your petition for that relief, you likely will not get it.
  9. The party requesting genetic testing shall pay its fees. There is no provision in the statute for the court to tax the fees other than to the party who requests it.
  10. The usual authority of the court on motion or its own motion to order the parties to submit to genetic testing applies.
  11. The unsuccessful petitioner shall be assessed with court costs, genetic testing fees and reasonable attorney’s fees. Here’s the reason why I suggested above that you specifically plead all of those qualifying and possibly disqualifying facts and make your client read carefully before signing. Clients sometimes will lead you to believe that they have a case, and will omit some important detail, like the execution of that acknowledgment of paternity. They think they can pull a fast one on the court, or that it somehow will slip by unnoticed. The result of failure for the petitioner is being assessed with some significant expenses. The result for you is egg on your face and slipping a notch in the court’s regard of your own credibility.

This statute should go a long way toward eliminating the welter of approaches that lawyers have taken to address the disestablishment of paternity. Now there is a single statutory provision. Read the statute, follow it, and you might accomplish something for your client.

THE POT OF GOLD AT THE END OF THE RAINBOW

August 3, 2011 § 8 Comments

You have tried a simply sterling case, and now you are ready to cash in on the pot at the end of the rainbow: an award of attorney’s fees against the opposing party. But the judge says, “no attorney’s fees for you.” Where did you go wrong?

I’ve talked about the best ways to approach attorney’s fees here and here. And fees in an estate matter are covered here and here.

In the case of Evans v. Evans, handed down by the COA on April 26, 2011, you can find a pretty concise statement of the law that you need to know when pursuing a claim for attorney’s fees. The decision is unpublished, and can not be cited itself for authority, but Judge Maxwell did such a good job writing an exposition on the subject that I wanted to bring it to your attention.  Here are some excerpts from the opinion, paraphrased and supplemented with a couple of notes of mine:

The matter of awarding attorney’s fees is largely entrusted to the sound discretion of the chancellor. McKee v. McKee, 418 So.2d 764, 767 (Miss. 1982). The appellate courts are reluctant to disturb a chancellor’s discretionary determination whether to award attorney’s fees or the amount of any award. Smith v. Smith, 614 So.2d 394, 398 (Miss. 1993). Except in contempt actions, attorney’s fees may only be awarded to a party who has shown an inability to pay his or her own fees. Voda v. Voda, 731 So.2d 1152, 1157 (Miss. 1999); Pacheco v. Pacheco, 770 So.2d 1007, 1012 (Miss.  App. 2000).

When awarding attorney’s fees, chancellors must make specific findings regarding the recipient’s ability to pay. Hankins v. Hankins, 729 So.2d 1283, 1286 (Miss. 1999). And chancellors should apply the McKee factors in determining the proper amount of the award:

(1) A sum sufficient to secure a competent attorney; (2) the skill and standing of the attorney employed; (3) the nature of the case and novelty and difficulty of the questions at issue; (4) the degree of responsibility involved in the management of the cause; (5) the time and labor required; (6) the usual and customary charge in the community; (7) and the preclusion of other employment by the attorney due to the acceptance of the case. McKee, 418 So.2d at 767 (internal citation omitted).

Our supreme court has held that “[a] trial court abuses its discretion by awarding attorney’s fees without first finding that the party is unable to pay the fees.” Hankins, 729 So.2d at 1286.

The chancellor must also consider the paying party’s financial situation. Where neither party is able to pay more than his or her own fees, an award of attorney’s fees is inappropriate. Sarver v. Sarver, 687 So.2d 749, 755 (Miss. 1997), overruled on other grounds by Pearson v. Pearson, 761 So.2d 157 (Miss. 2000); see also Bell, at § 12.01[6] [b] (explaining that the chancellor should consider the parties’ financial disparity).

In addition, an award of attorney’s fees must be supported by sufficient evidence for an accurate assessment of fees. See McKee, 418 So.2d at 767 (reversing and remanding award based on insufficient evidence); Powell v. Powell, 644 So.2d 269, 276 (Miss.1994) (same). An itemized bill is not always required. Estimates may support an award in some circumstances if the estimates clearly explain “the method used in approximating the hours consumed on a case.” McKee, 418 So.2d at 767; see also Watkins v. Watkins, 748 So.2d 808, 813 (Miss. App. 1999). A chancellor’s failure to apply the McKee factors is not necessarily itself reversible error, see Miley v. Daniel, 37 So.3d 84, 87 (Miss. App. 2009), the proof must at least support an accurate assessment of fees under the McKee criteria. Bumgarner v. Bumgarner, 475 So.2d 455, 456 (Miss. 1985).

Attorney’s fees are properly assessed against a party found to be in contempt. Mount v. Mount, 624 So.2d 1001, 1005 (Miss. 1993). A finding of inability to pay is not necessary to an award of attorney’s fees in a contempt action.  Bounds v. Bounds, 935 So.2d 407, 411 (Miss. App. 2006).

As for parentage cases, MCA § 93-9-45 provides that the “cost of the legal services of the attorney representing the petitioner … shall be taxed against the defendant.”

If you expect to be successful on a claim for attorney’s fees, you have to prove:

  1. That your client is entitled to an award. In contempt and parentage cases, the adjuducation of contempt or parentage will do the trick. In all other cases, you will have to show inability of your client to pay;
  2. Each of the McKee factors;
  3. Quantification of the fees by showing the time and effort expended;
  4. That the party you want to pay has the ability to pay.

Too many times I see attorneys put on a mere modicum of proof on the issue of getting paid. That’s a shame. Your client would appreciate it to no end if you found your pot of gold at the end of the other party’s rainbow.

NEW GUIDELINES FOR GENETIC TESTING TO DISESTABLISH PARENTAGE

May 31, 2011 § 1 Comment

Ever since the supreme court’s ruling in Williams v. Williams, 843 So.2d 720 (Miss. 2003), that a man under a support order who is proven by DNA testing not to be the father of the child can not be required to continue to support the child, the procedure to be followed has been anything but clear.  Up to now, it has been up to each chancellor or county judge to find a way.

Effective July 1, 2011, the law on this point is clarified and specified.  The legislature has created a new MCA § 93-9-10, and amended 93-9-9, 93-9-28, 93-9-21, and 93-11-71, to spell out a uniform, orderly process.  Here are the highlights:

  • If parentage was established through a court order, and the father had been offered genetic testing and declined, he will not be granted the relief of disestablishment of parentage.
  • If parentage was established by the father signing the birth certificate, he will have one year within which to request genetic testing.  After that, he can not contest parentage except on a showing of fraud, duress or material mistake of fact.  Current law allows only 60 days to contest parentage.
  • If parentage was established because the parents were married at the time of the birth, the legal father will be allowed to petition for genetic testing so long as he did not continue to hold himself out as the father after learning that he was not the father, or if he prevented the actual biological father from asserting his parental rights.  This last provision appears to reflect and cover the situation addressed in the case of Lee v. Lee, 12 So.3d 548 (Miss. App. 2009), which was discussed in a previous post.

This is intended only to be a general summary, so you should read the actual provisions when they appear in your legislative advance sheets.

BYE-BYE, BASTARDY; HELLO PARENTAGE

May 19, 2011 § Leave a comment

It’s official.  The 19th-century term “bastardy” that appeared in our paternity laws is banished from the statutes, effective March 14, 2011, by edict of the legislature.  Bastardy bows out.

The archaic term will be replaced with the concept of parentage, which is an improvement over the concept of paternity.  All future printings of the code will reflect the change.

In the recent COA case Miller v. Mills, decided May 3, 2011, Judge Maxwell used the term parentage in the context of a paternity action that had been filed in Louisiana, the judgment from which was sought to be enrolled and enforced in Mississippi: “Therefore, Ryan’s filing of a petition to establish parentage, custody, and visitation initiated a ‘child custody proceeding.’”  ¶ 9.  The opinion replaces the term paternity with parentage except where a specific statutory provision is mentioned.  The signal is that the new term is parentage, and that bastardy, paternity and filiation are fading away.

If the statutory language is segueing into the 21st century, wouldn’t it be a good idea for your pleadings to do likewise? “Complaint to Establish Parentage.”  Has a nice ring to it, doesn’t it?

CHILD SUPPORT ARREARAGE CAN’T BE FORGIVEN. OR CAN IT?

October 20, 2010 § 2 Comments

It is axiomatic in Mississippi law that every child support payment is vested when due and any arrearage may not be forgiven, reduced or done away with by the chancellor.  Moreover, the child’s right to his parent’s support cannot be bargained or contracted away by his parents. Calton v. Calton, 485 So.2d 309, 310-311 (Miss.1986). 

The rule is not ironclad, however.  The Mississippi legislature carved out a narrow exception in MCA § 93-11-71, which states in part:

… upon a motion filed by the obligor and a finding of clear and convincing evidence including negative DNA testing that the obligor is not the biological father of the child or children for whom support has been ordered, the court shall disestablish paternity and may forgive any child support arrears of the obligor for the child or children determined by the court not to be the biological child or children of the obligor, if the court makes a written finding that, based on the totality of the circumstances, the forgiveness is equitable under the circumstances.”  [Emphasis added]

Caveat:  The statute would not apply in the circumstances spelled out in Lee v. Lee, 12 So.3d 548 (Miss. App. 2009), which is the subject of a previous post.

ALSO:  § 93-11-71 self-repeals on July 1, 2011, although it has been re-enacted previously.

THE PARENT TRAP

September 28, 2010 § 5 Comments

We should all be familiar with the landmark case of Williams v. Williams, 843 So.2d 720 (Miss. 2003), in which the Mississippi Supreme Court held that it “refuse[s] to sanction the manifest injustice of forcing a man to support a child which science has proven not to be his.”  In Williams, the father did not know until well after he was ordered to support the child that it was not his, and he had little contact with the child in the intervening years before he filed an action to terminate support.  The Williams court, however, added this caveat:

“We do not hold that a man who is not a child’s biological father can be absolved of his support obligations in all cases. Those who have adopted a child or voluntarily and knowingly assumed the obligation of support will be required to continue doing so.”  [Emphasis added] 

Fast forward to 2009.

In the case of Lee v. Lee, 12 So.3d 548 (Miss. App. 2009), the Court of Appeals considered the appeal of Gregory Lee, Sr.

Mr. Lee had performed a home DNA test and discovered that there was a zero probability that one of the chilren he thought he had fathered was biologically his.  Soon after the unfortunate discovery, Mr. and Mrs. Lee filed a joint Complaint for Divorce.  Notwithstanding the DNA test results, the complaint alleged that the child was their indeed child, and their property settlement agreement provided for Mrs. Lee to have custody and for Mr. Lee to pay her support.

Two years after the divorce, Mr. Lee filed a petititon to modify and asked for DNA testing, which confirmed the home-test result that he was not the child’s father.

The Chancellor refused the modification, holding that Mr. Lee had voluntarily undertaken the duty to support the child with full knowledge that the child was not his, and under Williams, he could not be relieved of the support duty that he had assumed voluntarily.

On appeal, Mr. Lee argued that he had not been 100% convinced by the home test that he was not the father, and it was only when he got the court-ordered DNA test results that he knew conclusively for the first time of his non-paternity.  He also pointed out that the home test was not legally binding, while the court-ordered test was.

The appellate court brushed aside the argument because Mr. Lee’s own inartfully drawn petition to modify stated that he knew as a result of the DNA test that he was not the father, and the only test that assertion in the petition could have referred to was the home test, since the court-ordered test was done after the petition was filed.

Having found that he did know at the time of the divorce that he was not the father, the court went on to distinguish Williams and to find it inapplicable because Mr. Lee knew when he undertook the obligation that he was not the father, he supported the child and exercised visitation with him.  In Williams, the exact opposite of those facts existed.

The court also held that Mr. Lee had failed to prove a material change in circumstances that arose after the prior judgment that was sought to be modified.  He knew the child was not his at the time, and that circumstance had not changed.

Bottom line is that Williams is an escape hatch for a dad who was led to believe that he fathered a child and only learned later that he did not.  Williams, however, can not be used to relieve a support obligation in any case where the payor is related by blood to the child, or has adopted the child, or has otherwise voluntarily assumed the duty to support the child.

If you represent a father in an ID divorce, and he expresses any doubt as to whether a child is his, you should advise him of the ramifications of the Williams and Lee cases.  If he wants to shrug it off and just “get it over with,” you should put your advice in writing and get him to sign off on a copy for your file.

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