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.