K.S. v. R.S., 55A04-9502-CV-42

• Decision Date: 03 November 1995
• Docket Number: No. 55A04-9502-CV-42,55A04-9502-CV-42
• Citation: 657 N.E.2d 157
• Parties: K.S., Appellant-Respondent, v. R.S., Appellee-Petitioner.
• Court: Indiana Appellate Court

Page 157

657 N.E.2d 157

K.S., Appellant-Respondent, v. R.S., Appellee-Petitioner.

No. 55A04-9502-CV-42.

Court of Appeals of Indiana.

Nov. 3, 1995.

Transfer Granted Feb. 14, 1996.

George A. Lohmeier, Indianapolis, for Appellant.

Michael A. Ksenak, Bowman & Ksenak, Indianapolis, for Appellee.

OPINION

CHEZEM, Judge.

Case Summary

Appellant-Respondent, K.S. ("Mother"), appeals the trial court's denial of her Trial Rule 60(B)(6) motion. We vacate the judgment of the trial court denying Mother's motion and vacate the Agreed Entry adopted by the trial court. We order this cause dismissed.

Issues

Mother presents two issues for our review which we restate as:

I. Whether a third party may establish paternity of a child born during the marriage of the child's mother and her husband, the statutorily presumptive father, while their marriage is still intact; and,

II. Whether an Agreed Entry establishing paternity over a child and entered into as a private contract between the parties is void as being against public policy.

Facts and Procedural History

Mother has been married to D.S. ("Husband") since 1979. Three children have been born into the marriage. The youngest child, D.S., born October 22, 1992, is the subject of this dispute. In February, 1994, R.S. filed a Petition to Establish Paternity in which he alleged that he, and not Husband, was the biological father of D.S. The parties do not dispute that while living with her husband next door to R.S., Mother and R.S. had sexual relations. There is no other evidence of R.S.'s paternity.

D.S. was not named a party in the paternity proceeding, and nor was a guardian ad litem appointed on his behalf. Contemporaneous with the Petition to Establish Paternity, R.S. filed an Agreed Entry which by its terms claimed R.S., and not Husband, was the biological father of D.S. Mother, Husband, and R.S. all signed the Agreed Entry which was thereafter adopted by the trial court.

Discussion and Decision

I

There are times when the facts presented to this court leave us with no satisfactory alternatives. Whatever the outcome of this decision, we cannot escape the reality that a child has been affected and will continue to be affected by the circumstances surrounding this case. Rather than allow the particulars of this case to cloud our interpretation of the law, we look instead to the potential outcomes of future cases with parties similarly-situated to how today's parties were situated before they entered into their agreement relating to the paternity of D.S. Relying instead on the common law, public policy, and legislative mandate to guide our judgment, we hold that no cause of action exists in Indiana when a third party attempts to establish paternity of a child born during the marriage of the mother and her husband while their marriage remains intact.

This issue is one of first impression in Indiana. Similar facts were presented to this court in H.J.F. (1994), Ind.App., 634 N.E.2d 551. The majority in H.J.F. did not determine whether such a cause of action should be allowed in Indiana; instead, the Court in H.J.F. focused on the reasons why a guardian ad litem should be appointed to represent the child when a presumptive father's ¹ rights are challenged by a putative father. While we agree with the policy of appointing a guardian ad litem when a presumptive father's paternity is challenged, we distinguish the facts presented today from the facts of those cases relied upon by the Court in H.J.F. In each case relied upon by the Majority in H.J.F., the mother and presumptive father-husband were divorced before the putative father sought to establish paternity. We therefore disagree with any implied recognition by the Majority in H.J.F. of a cause of action when the mother and presumptive father-husband remain married. ²

What is at stake today extends beyond simple concepts of paternity. R.S. asks us, in essence, to recognize his rights as a parent to D.S. Justice Scalia, in Michael H. v. Gerald D. (1989), 491 U.S. 110, 109 S.Ct. 2333, 105 L.Ed.2d 91, reh. den., clarified the gravity of what is asked of us:

What [putative father] asserts here is a right to have himself declared the natural father and thereby to obtain parental prerogatives. What he must establish, therefore, is not that our society has traditionally allowed a natural father in his circumstances to establish paternity, but that it has traditionally accorded such a father parental rights, or at least has not traditionally denied them. Even if the law in all States had always been that the entire world could challenge the marital presumption and obtain a declaration as to who was the natural father, that would not advance [putative father's] claim. Thus, it is ultimately irrelevant, even for purposes of determining current social attitudes towards the alleged substantive right [putative father] asserts, that the present law in a number of States appears to allow the natural father--including the natural father who has not established a relationship with the child--the theoretical power to rebut the marital presumption.

Id. at 125, 109 S.Ct. at 2344 (emphasis in original and footnotes omitted).

As yet, the courts in Indiana have reviewed on the merits only cases in which the paternity statute has been applied after the divorce of the mother and her husband. Our supreme court has interpreted the paternity statute to apply when a mother and her husband have divorced but the child was found by the divorce court to have been a child of that marriage:

Indiana Code Ann. § 31-6-6.1-2 (West Supp.1992) allows a man alleging that he is a child's biological father to file a paternity action. This provision makes no reference to the marital status of the mother. Thus, a putative father may establish paternity without regard to the mother's marital status, so long as the petition is timely filed. Of course, the putative father must put forth evidence that is "direct, clear, and convincing" to rebut the presumption that a child born during the marriage is legitimate. Fairrow [v. Fairrow (1990),] 559 N.E.2d at 600.

In re Paternity of S.R.I. (1992), Ind., 602 N.E.2d 1014, 1016. Thus, the paternity statute has been interpreted by our supreme court to apply to children presumptively born in wedlock but only after the mother and presumptive father-husband were divorced. The Court's reasoning appears to be that a child, after parental rights have been voluntarily terminated via a denouncement of paternity ³ at divorce by the presumptive father, is in essence a child born out of wedlock.

We must examine, therefore, just who may bring an action to establish paternity and when such an action may be asserted. I.C. 31-6-6.1-2(a) allows only the following persons to bring an action to establish paternity:

(1) The mother or expectant mother.

(2) A man alleging that he is the child's biological father or that he is the expectant father of an unborn child.

(3) The mother and a man alleging that he is her child's biological father, or by the expectant mother and a man alleging that he is the biological father of her unborn child, filing jointly.

(4) A child.

Husband, as D.S.'s presumptive father, is legally distinguished from any man outside of the marriage who attempts to assert paternity. Interestingly, a husband who is a presumptive father under I.C. 31-6-6.1-9(a)(1) and a non-husband who is a presumptive father under subsection I.C. 31-6-6.1-9(a)(4) might be thought to have equally-weighted presumptions of paternity in their favor. However, a man under subsection (a)(4) who is not also the presumptive father under subsection (a)(1) is a "putative father" as defined by I.C. 31-3-1.5-4: a putative father is "[a] man who may be a child's father but who: (1) is not married to the child's mother on or before the date that the child is born." Thus, R.S. is a putative father while Husband is the presumptive father. And, one who is a putative father, but not a presumptive father under I.C. 31-6-6.1-9(a)(1), must comply with additional statutory requirements under I.C. 31-6-6.1-9(a)(1) before paternity may be established. ⁴

Most important is that a putative father may only establish paternity in a child born out of wedlock. The legislature intended for the paternity statute to be used to establish paternity rather than to defend a husband's paternity against assertions of paternity made by third parties outside the marriage. The policy statement issued in 1994 by the legislature cannot be more clear: "[t]he general assembly favors the public policy of establishing paternity under this chapter of a child born out of wedlock." I.C. 31-6-6.1-1.5 (emphasis added). It is important to note that this statute was adopted after S.R.I. Because we must assume that the legislature drafted the statute with common and statutory law in mind, we will not interpret the paternity statute in any manner other than when it is used to establish paternity of a child born out of wedlock.

For instance, the statute makes no provision for a husband to petition the court to disestablish paternity. Other than requesting a divorce court to find that a child is not a child of the marriage for purposes of arriving at an equitable support order, a husband who is also a presumptive father has no standing under the paternity statute to bring an action to establish paternity because paternity is already presumed. The policy of using the paternity statute to establish, rather than to disestablish, paternity is in the best interest of all children. For example, I.C. 31-6-6.1-9(a)(1) protects a child's interests when a father attempts to avoid parental responsibility for a child born into the marriage by divorcing the mother before or after the child is born. I.C. 31-6-6.1-9(a)(4) can reasonably be said to have been drafted also to establish, rather than disestablish, paternity. A mother may wish to create a presumption of paternity in a man with whom she has had a...