Columbia v. Lawton, 2013 VT 2
Any bleary-eyed parent, awakened by her child’s cries in the middle of the night, has no doubt come to the hard-won realization that being a parent is more than simply contributing genetic material. It is a series of sacrifices and steady work that yields a relationship with a budding person. It is not easy going, but it is consistently and deeply rewarding.
Growing up as children of the first large wave of divorce in the 1970s, many of us had a name for those fathers who had made their biological contributions and then split the scene before this work began—sperm donors.
Interestingly enough, the law recognizes this distinction between a parent who is so by virtue of his role at conception and a parent who becomes one through the dedicated work of caring for and raising the said by product of the former. In an ideal situation these people are one and the same, but this is SCOV Law, and the ideal is rarely seen.
So it is with today’s case which concerns an attempt to establish fatherhood that is too little and a paternity suit filed too late.
The child in this case, JB, was born in 2008 to Defendant Mother. About that time, Mother began living with a man with whom she had at least on other child. This man attended JB’s birth and had always treated JB as his son.
So it was not unexpected that Mother filed a parentage action to have this man declared JB’s father. It was also not a surprise that the man stipulated to this action and agreed to a parental determination in July 2010.
Perhaps more surprising to Mother was Plaintiff’s paternity action filed in October 2010, which sought to assert paternity and asked for a genetic testing to prove who was whose.
Mother opposed this action, and the trial court dismissed it ruling that the parentage statute does not allow a second action once the child’s parentage has been established through a prior action.
On appeal, the would-be father argued that this dismissal violated his due process rights by taking away his parental rights without a hearing or an opportunity to contest. He argued that the trial court’s interpretation would basically make parentage actions a “race-to-the-courthouse” contest that ignores the competing, potentially valid, parenting claims.
The SCOV begins its analysis by looking to the statute to see if it really limits parentage actions as the trial court ruled. Long story short, it does.
More interesting is the SCOV’s analysis of the policy implications of the rule. Because essentially only one parentage action can be brought, the emphasis is on finality and protection of established parent–child relationships. The idea is that if a parentage action is brought, it will necessarily involve the people currently parenting, caring for, and in a relationship with the child.
Basically, Vermont sides with Horton over Mayzie.
The thing is that Vermont is somewhat in the minority here. Other states and the Uniform Parentage Act expressly allow for successive parentage actions in some circumstances. For many states, a biological parent’s interest is enough to re-open the issue, even if it is not conclusive.
The facts here cut both ways and illustrate the reasons for the split in jurisdictions. On one hand, Plaintiff was not a part of the first parentage action and had no opportunity to assert the arguments and evidence in his favor. In fact, the record shows that the first action was summary. Mother filed, current husband did not contest, and judgment was entered. Little in the way of proof was brought forward to establish the claim, and if Plaintiff is to be believed, there is little out there.
Yet, this evidence goes to the heart of the SCOV’s point. The current husband was acting and continues to act in a manner consistent with a parent’s role. He was there for the child’s birth, he was present in the home, and he treated the child like his own. While there is no decisive evidence of nature, the facts show plenty of nurture.
Plaintiff, on the other hand, has had no contact with the child and did not ask to attend the birth or to see the child afterwards. He waited two years to bring a parentage action, and did nothing in the meantime to assert or to demonstrate his claim of fatherhood. Plaintiff has excuses and a list of minor actions that he took, but these are largely brushed aside by the SCOV. Whatever Plaintiff’s role in bringing the child into the world, it ceased long before the action was commenced.
That is enough for Vermont law. But it raises some troubling questions that the SCOV tries to address in passing. First, it notes that Plaintiff is correct in suggesting that he is not bound to the earlier decision by res judicata. That is the legal doctrine that prevents people from re-litigating the same case twice. Since he was not a party, he is not banned from filing a second parentage action by virtue of res judicata. He is banned because the statute does not allow it.
Second, the SCOV explicitly leaves the door wide open to the child to file a parentage action down the road. While the statute prevents other would-be parents from filing second parentage suits, it does not prevent the children from doing so. The SCOV does not necessarily say that such an action would be allowed, but it makes clear that such a claim would be strongly considered.
Maybe Plaintiff should get the child a lawyer for Christmas this year.
With that out of the way, the SCOV moves to the issue of due process.
The SCOV starts by acknowledging that parents do have strong, fundamental interests in bearing and raising their children. But it quickly picks up the theme of the last section. Such rights do not spring fully formed from the moment of conception. Parental rights are not simply biological. They are a function of the connection and relationship that is formed with the child. Sperm donors are not parents. People who care for and raise children are parents, and the right to do so rests within the relationship asserted.
In other words, parental rights are fundamental interests, but they are also use-them-or-lose-them rights. Or in the words of one court, these are opportunity interests determined by the extent one takes advantage of them.
With that, the SCOV concludes that in such cases where the parent has not asserted or demonstrated his interest, his or her due process interests are concomitantly minor and may be suspended with little or no process necessary. As this is the case here, the trial court properly rejected the action. The SCOv affirms and makes clear that the case was not close.
But all is not lost. The final paragraph does hold out some hope for would-be paterfamilias who finds themselves in Plaintiff’s situation. The SCOV suggests that the proper avenue for a parent who can show some due process right to challenge an existing parentage ruling would be to seek a remedy through a Rule 60(b) relief from judgment motion.
In such cases, a parent would be able to argue that he or she had rights in the parentage of the child and that the trial court made a mistake or similar error in making a parentage award without considering them. The benefit of a Rule 60(b) action is that it would undo the earlier action and avoid the problem of having two conflicting parentage judgments. How exactly this process would work is not clear, and the SCOV recommends that the family court rules committee take a look at the issue and amend Family Court Rule 4 accordingly.
Unfortunately, this is too little and too late for Plaintiff whose dreams of fatherhood will have to wait. In the meantime, he can take a page from Hi and Ed McDunnough and watch and take pride at a distance in the child’s achievements as he or she grows.