But if you are not my father, who is?

Yesterday I discussed a new case from Maryland in which a married man belated asserted he was not the father of a 13-year-old daughter he’d acted as father to since her birth.   Here’s another case , this one from Indiana, that was decided at just about the same time.   It’s similar in the set-up, but quite different in the legal issue.

Barrington and Lisa Smith were married in 1985. While married, Lisa gave birth to four children.   PSS was born third, in 1992.   CWS was born in 1996.  

The Smiths divorced in 2001.  The paternity of PSS and CWS was apparently at issue in the divorce.   A guardian at litem was appointed to represent PSS in connection with the paternity inquiry.  The final divorce decree specified that Barrington Smith was not biologically related to CWS and shared custody was ordered for the other three children, including PSS.

In 2008 PSS filed suit to establish paternity.   (Since PSS was still under-age in 2008 (she must have been about 16) she filed suit through a “next-friend.”  The next-friend was Barrington Smith.)   But since the divorce had already dealt with this question, the suit by PSS was dismissed.  The reasoning of the trial and appellate courts is different, but the bottom-line as to the result is the same.

There’s a general rule in law that a party only gets to litigate an issue one time.   This makes sense for many reasons.   Now you might think that the divorce proceedings wouldn’t bind PSS, since she was not, and could not even have been, a party to the divorce.  But the court reasons that since she had a guardian appointed to represent her interests, she was sufficiently engaged so that she should be bound by the determination that Barrington Smith was her father.   And that, as far as the majority is concerned, is that. 

To my mind, the role of Barrington Smith as next-friend to PSS as she tries to pursue her paternity quest needless complicates things.  He’s hardly a disinterested party.   Apparently he was willing to be declared her parent in 2001 (as a part of the divorce decree) but is now interested in finding someone else to take on that job.   To make thinking about this easier, I’d like to note this complexity and then just set it aside. 

What about the rights of PSS?  At the time of the divorce she was 11.   She did not act for herself (and I’m not suggesting that she should have) but instead had a GAL who was to protect her interests.    

How did the GAL figure out what was best for PSS?  I’m prepared to assume (although I fear it isn’t always true) that the GAL did his/her best.   But even so, as I think a lot of the discussion on this blog has emphasized, the importance of having access to accurate information about one’s genetic heritage may be given different weight by different people.  It’s possible that even a completely well-meaning GAL valued the stability of having Barrington Smith continue as father more highly than she/he valued having access to the information in question.   

It’s nine years later now, however, and it seems to me that the interests of PSS may be somewhat different than they were then.   Thus, I’m inclined to think that perhaps her request should be accommodated. 

I think the thing that makes it difficult if not impossible for the court to do this is that learning the genetic realities would have an impact on Barrington’s status as a legal father and all that entails.  I’d love to see those two things delinked in a case like this.   To my mind it is possible to say both 1) that Barrington is her legal father with all rights and obligations that entails and 2) that she should know if there is someone else out there with whom she has a genetic link.  

And here I must return to Barrington’s role in all this.  I worry that Barrington could be manipulating PSS in order to have her accomplish what he himself cannot.  It does seem to me clear that Barrington had his chance and does not get another opportunity.  I’d be much more confident if PSS’s interests were championed by someone less obviously interested in the outcome.


8 responses to “But if you are not my father, who is?

  1. How can you attach a child who is a casualty of divorce problem onto IVF issues?

    But since you are, here’s what I think, and it’s that if Barrington wanted to help PSS then should be approved of, but instead you show no concern for the child’s happiness.

    So tell me is there law against PSS keeping in touch with Barrington anyway?

    • Since my general question is about who is a legal parent, this case fits in with all the ART cases. In all of those instances, the law has to figure out who the parents of a child are. Same as the case in the post before this.

      To be clear, I might be on PSS’s side here to the extent she wants information. I’m not sure the court got it right.

      I do think it is a little late in the day for Barrington to walk away from his legal obligations to his child, just as was the case in the post before this one. Can they stay in touch? Sure. But that’s not what’s at issue here. What’s at stake is legal status, with concomitant rights and obligations.

  2. Who makes these laws and why?

    • That’s a really broad question. There’s a host of laws governing ART/legal parentage, etc. They come from many different places. For the most part easch state in the US and every country has its set of laws about this stuff and each body of law has developed in its own way.

      Some laws are modern versions of ancient presumptions. That’s the case with laws that say the spouse of a woman who gives birth is presumed to be a parent. The basic presumption is hundreds of years old but it has changed in various ways over time. Other laws, like those governing what is often called gestational surrogacy, are essentially new, because nothing like this practice existed in the past.

      Some laws are enacted by legislatures in response to particular situations. Others are enacted by legislatures as part of a more general effort and establishing a coherent body of law in this field. (Those might be done by enacted chunks of the Uniform Parentage Act, often with some modifications.) And then, in some countries, law can be created by judges who might find themselves confronted with new circumstances that the existing legislation doesn’t cover.

      Perhaps the only safe things to say is that both the sources and substance of laws vary enormously from place to place and that there are very few places, if any, that could lay claim to a truly rational set of laws.

  3. Armagene Ellis-Smith

    I am the wife of Barrington Smith and the stepmother of PSS and we are real people and this is just not a court case. Real lives are affected by the court decisions. While the Indiana Supreme Court and Indiana Court of Appeals failed to address the issue, the local court simply emancipated PSS so that Barrington would no longer be responsible to pay child support. The thing that is not stated in this blog that is relevant to this case is the fact that PSS biological mother namely, Lisa Smith, knew the whole entire time that PSS biological father was a married man by the name of Gary Drake. During Barrington and Lisa dissolution proceedings, he was not represented well by his legal counsel. Lisa had a well-known history of committing adultery and having children by other womens’ husband,however, she hid this fact regarding the paternity of PSS. The Indiana court of appeals did state in its dissenting opinion that PSS should have the opportunity to determine who her biological father is. But in the real world, all is well, Barrington is now and will always be PSS father, however, she has developed a relationship with her biological father and he does what he can to assist her financially. I believe that when there is paternity fraud, the court should be prepared to give the man relief, even if he was married to the lying scheming woman at the time of the dissolution. If Barrington had been aware that PSS was not his biological child he would have addressed the issue during the dissolution proceedings, however, this fact was hidden from him. To the credit of the biological father Gary Drake, he did testify on Barrington’s behalf in the local court, stated that he was the biological father and thought that he should be the one to take care of PSS. The court in its infinite wisdom, disregarded the wishes and best interests of the legal father, the biological father and PSS. I suggest that there be a change in the law that anytime a woman petition’s a court for court-ordered child support that DNA test are automatically ordered by the court even if the child was born during the course of marriage. Additionally, for the record, my husband fraudualently paid out tens of thousand of dollars in child support and never received one penny of it back. When a woman committs paternity fraud and the court assists her in this process, then this amounts to an unlawful taking of property without due process of law. Due process for child support proceedings, should automatically include DNA testing!

  4. It’s good to be reminded that there are indeed real people involved in each of the cases that I discuss and also that the facts are nearly always far more complicated than the court opinions tell us.

    Given the constraints of time and space, really all I can do is take the facts as the courts give them. I do understand that means I might not be discussing what really happened. But it does let me discuss what the law is–what law the court made in a given case. And in terms of figuring out what it all means, the facts as the court gives them will matter more to the next litigant than the underlying reality. I understand that may sound terrible, but it is how law works.

    From my point of view, the problem with ordering DNA tests in every paternity case is that DNA tests, even when properly done, don’t always tell you what you need to know to figure out legal paternity. As is discussed in many many posts here, sometimes men are legal parents for reasons unconnected to DNA. The classic example is the husband of a married woman who gives birth–historically he is presumed to be the legal father and DNA testing doesn’t alter that.

    The other thing your comment points up is that poor representation–your husband’s lawyer at the earlier hearings–is a big problem. If you only get one chance to litigate something (as is often the case) and if that one chance is blown by a bad lawyer, you’re in trouble. That’s a sobering reality I’m afraid.

    • Armagene Ellis-Smith

      Thank you for your kind words. I want to give clarity that the law in Indiana does hinge on DNA testing even when a child is born during marriage. Yes, the husband is presumed to be the legal father but that issue can be addressed/resolved with DNA testing, however, this testing most be done prior to the final dissolution of marriage being entered. The law in Indiana does have the most flexibility and while there is a presumption of legal fatherhood, that presumption can be overcome with legal DNA testing, however, again, it must be done prior to the final dissolution decree being, entered, and this is where my husbands’ lawyer failed him. Though he may have presumed himself to be the legal and biological father as did the law; it was his Lawyers’ obligation to represent his best interest. When there is a history of adultery in a marriage, a lawyer should automatically request DNA testing, irregardless as to whether a husband believes he is the biological father or not.

      • Got it. It certainly sounds like the lawyer here has a lot to answer for.

        Thanks, too, for the description of the local law. One thing this highlights is the value law places on finality. That’s generally true but it might be especially true with regard to determination of parentage. We don’t want to have courts redoing those every few years–that’s a nightmare. So–as you describe–there’s a time when you can challenge with DNA and if you do not do it at the right time, you’re stuck forever. Again, it places immense responsiblity on the lawyer at that one correct moment because you really need to do it right at that time. And your husband’s lawyer failed him. But i can see why the structure is that way.

        The harder question for me is what you do in a case like yours–where (as you say) the lawyer failed and so the court failed and the wrong result was written in stone. I’ve said this before in other contexts–the passage of time in cases with children makes things very difficult.

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