Custody of Davis, In re, 87-CA-1
Citation | 41 Ohio App.3d 81,534 N.E.2d 945 |
Decision Date | 06 July 1987 |
Docket Number | No. 87-CA-1,87-CA-1 |
Parties | In re CUSTODY OF DAVIS. |
Court | Ohio Court of Appeals |
Syllabus by the Court
1. An acknowledgement of paternity under R.C. 2105.18 constitutes an admission of paternity.
2. The probate court's order of legitimacy, pursuant to R.C. 2105.18, is a judicial determination of parentage or paternity.
3. The court's order of legitimacy, based on an R.C. 2105.18 acknowledgement of paternity, establishes a full parent-child relationship for all legal purposes.
4. R.C. Chapter 3111 paternity proceedings or adoption are not the exclusive methods by which paternity may be determined.
5. Acknowledgement of paternity pursuant to R.C. 2105.18 is an establishment of paternity upon which an order of custody and support may be based.
6. One may not attack the validity of an R.C. 2105.18 acknowledgement of paternity in defending an action for custody and support.
Frank K. Leyshon, Cambridge, for appellant.
Russell H. Booth, Jr., Cambridge, for appellee.
Appellee, Margaret Berger, filed an action for custody of Michael Paul Davis in the Guernsey County Court of Common Pleas, Juvenile Division. R.C. 2151.23(A)(2). The complaint also prayed for child support and any other appropriate relief from the child's alleged father, Donald Richard Davis, Sr., appellant herein. After providing appellant an opportunity to file a paternity action under R.C. Chapter 3111 ( ), the trial court issued an order of custody awarding the child to appellee, and ordered appellant to pay child support and provide hospitalization insurance. The court also granted appellant visitation rights.
Appellant appeals, assigning as error:
The facts of this case can best be presented in a chronological, schematic fashion.
Dec. 13, Divorce of Carl J. Hoopingarner and Margaret Hoopingarner
1973 (appellee).
Jan. 8, Birth of Michael Paul Hoopingarner; no father is listed on the birth
1977 certificate.
Dec. 5, Donald Richard Davis, Sr. (appellant) acknowledges paternity in
1978 probate court per R.C. 2105.18.
Order of legitimacy issued by probate court.
May 9, Carl J. Hoopingarner and Margaret Hoopingarner obtain a marriage
1979 license to remarry; Mr. Hoopingarner declares Michael Paul to be
his son.
May 19, Carl and Margaret Hoopingarner remarry.
1979
1986 Carl and Margaret Hoopingarner divorce each other again.
The issue in this case is whether an action for custody and support of a child can be based upon an R.C. 2105.18 acknowledgement of paternity. Put another way, is an R.C. Chapter 3111 proceeding the exclusive procedure for determining paternity of a child born out of wedlock for purposes of child support and custody?
R.C. 2105.18 provides:
The issue becomes whether the phrase "as though born to him in lawful wedlock" establishes paternity only for purposes of descent and distribution, or whether it can establish paternity for all legal purposes.
We hold that an acknowledgement of paternity under R.C. 2105.18 functions as an admission, and that the probate court's order of legitimacy, pursuant to R.C. 2105.18, is a judicial determination of parentage or paternity. The court's order, based on an R.C. 2105.18 acknowledgement of paternity, establishes a full parent-child relationship for all legal purposes. See In re Legitimation of Conn (1982), 7 Ohio App.3d 241, 7 OBR 303, 455 N.E.2d 16 ( ); In re Adoption of Robinette (C.P.1976), 3 O.O.3d 355 ( ). We reject the argument that an R.C. 2105.18 acknowledgement of paternity is valid only for purposes of descent and distribution. See In re Mancini (1981), 2 Ohio App.3d 124, 2 OBR 138, 440 N.E.2d 1232; Chatman v. Chatman (1977), 54 Ohio App.2d 6, 8 O.O.3d 24, 374 N.E.2d 433. In Mancini, the court held that R.C. 2105.18 proceedings are not available to challenge the legitimacy of an already legitimate child, i.e., a child born during marriage and found to be issue of the marriage partners in their prior divorce. In Chatman, the acknowledged father was found to have no custodial rights or duties in a subsequent divorce from the child's mother. We conclude that the logic in this case, remarkably similar to the case sub judice, is flawed.
Judge Wise, in his separate concurrence, suggests that this conclusion "flies in the face of the reported cases." In re Smith (1984), 16 Ohio App.3d 75, 16 OBR 79, 474 N.E.2d 632, involves the "flip side" of the question and stands for the proposition that R.C. Chapter 3111 proceedings do not convert the reputed father finding to an R.C. 2105.18 designation of natural father. Johnson v. Norman (1981), 66 Ohio St.2d 186, 189, 20 O.O.3d 196, 198, 421 N.E.2d 124, 126, acknowledges "two distinct proceedings in which to establish the paternity of an illegitimate child"--R.C. Chapter 3111 and an action by the child. The Supreme Court does not suggest that these are the only legal mechanisms to establish paternity. In fact, State v. Stevens (1970), 22 Ohio St.2d 4, 51 O.O.2d 2, 257 N.E.2d 396, acknowledges that paternity may be proved in a criminal nonsupport action. (State v. Carter [1963], 175 Ohio St. 98, 23 O.O.2d 390, 191 N.E.2d 541.)
Further authority for the proposition that an R.C. 2105.18 acknowledgement of paternity is not simply a descent and distribution provision is found in the fact that the legislature has separately provided for designation of another as an heir at law in R.C. 2105.15. 13 West's Ohio Practice, Family Law (Milligan 1975), Sections 268 and 269.
In addition, we reject appellant's argument that R.C. Chapter 3111 is the exclusive procedure for determining parentage or paternity. R.C. 3111.02 itself provides that paternity may be established under R.C. Chapter 3111. In addition, paternity may be proved in a criminal nonsupport action under R.C. 2919.21. See State v. Stevens, supra ( ). Courts other than the juvenile court may have jurisdiction to determine paternity. See Gatt v. Gedeon (1984), 20 Ohio App.3d 285, 20 OBR 376, 485 N.E.2d 1059 ( ); Standifer v. Arwood (1984), 17 Ohio App.3d 241, 17 OBR 508, 479 N.E.2d 304 ( ).
The trial court did not err in not quashing service of summons or in the alternative dismissing the action. A judicial determination of paternity had already been made prior to the instant action.
The first assignment of error is overruled.
The trial court did not err in not dismissing the action at ...
To continue reading
Request your trial-
Brookbank v. Gray
...as the exclusive method by which paternity may be determined or the parent-child relationship effectuated. In re Custody of Davis (1987), 41 Ohio App.3d 81, 534 N.E.2d 945. Thus, the concurrent original jurisdiction of the court of common pleas with regard to all civil matters is unaltered,......
-
Adoption of Lassiter, In re
...of parentage or paternity" which "establishes a full parent-child relationship for all legal purposes." In re Custody of Davis (1987), 41 Ohio App.3d 81, 83, 534 N.E.2d 945, 947. 1 The Ohio Supreme Court has ruled that "[t]he doctrine of res judicata can be invoked to give conclusive effect......
-
Barbara E. Lewis v. Michael G. Chapin, 94-LW-3602
...that such acknowledgement is a judicial determination of parentage and establishes a full parent-child relationship for all legal purposes. Id. at 83; but, see, In Mancini (1981), 2 Ohio App.3d 124, paragraph three of court's syllabus. The Ohio Supreme Court's decision in Gilbraith, supra, ......
-
Lewis v. Chapin
...sections 3111.01 to 3111.19 of the Revised Code." 3 Sub.H.B. No 476, 141 Ohio Laws, Part II, 4502, 4505. Citing In re Custody of Davis (1987), 41 Ohio App.3d 81, 534 N.E.2d 945, appellants argue that the father-child relationship may be established for all legal purposes by adoption or legi......