K.S. v. R.S.

Citation669 N.E.2d 399
Decision Date29 July 1996
Docket NumberNo. 55S04-9602-CV-00162,55S04-9602-CV-00162
PartiesK.S., Appellant, v. R.S., Appellee.
CourtSupreme Court of Indiana

SULLIVAN, Justice.

Does Indiana law permit a man who claims to be the biological father of a child born during the marriage of the child's mother and another man to file a paternity action while the mother's marriage is still intact? We hold that it does.


K.S. (mother), the mother of three children, has been married to her husband since 1979. Mother bore all three children during the course of her marriage to husband. The youngest child, D.S., who was born on October 22, 1992, is the subject of this action.

While married to husband, mother and her neighbor engaged in a sexual relationship. Neighbor claims that sometime during his sexual relationship with mother, D.S. was conceived, and that neighbor is therefore D.S.'s biological father.

Approximately one and one half years after D.S.'s birth, neighbor filed a petition to establish paternity in the Morgan Circuit Court. D.S. was neither named as a party nor otherwise represented by counsel or a guardian ad litem. Neighbor also filed with the trial court an agreed entry, which stated that neighbor was the biological father of D.S. The agreed entry provided for joint custody of D.S., with equal time with D.S. on an alternating seven day period. The agreed entry also provided that as long as there was this joint custody arrangement, no support would be paid from one party to another. Mother and neighbor signed the agreed entry and the trial court thereafter approved it.

Approximately eight months after the trial court approved the agreed entry, mother filed a motion to set aside the agreed entry pursuant to Ind.Trial Rule 60(B)(6), alleging that the agreed entry was void on two grounds: that the child was neither a party nor otherwise represented in the proceeding and that there was no physical evidence of neighbor's paternity. The trial court denied Mother's motion. Mother appealed, arguing that the trial court erred in denying her T.R. 60(B)(6) motion.

The Court of Appeals, "[r]elying on common law, public policy, and legislative mandate," did not reach the T.R. 60(B) issue but instead concluded that the trial court was without jurisdiction to hear a case "when a third person attempts to establish paternity of a child born during the marriage of the mother and her husband while their marriage remains intact." K.S. v. R.S., 657 N.E.2d 157, 159 (Ind.Ct.App.1995).


Indiana Code § 31-6-6.1-2 (1993 and 1995 Supp.) expressly authorizes certain persons to file a paternity action. In particular, the statute states:

(a) A paternity action may be filed by the following persons:

(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.

We last examined this statute in In re Paternity of S.R.I, 602 N.E.2d 1014, 1016 (Ind.1992), where a man alleging to be the biological father of a child born during the mother's marriage to another man sought to bring a paternity action following the dissolution of that marriage. We held that this language "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 other requirements of the statute are met. Id. at 1016. But we were careful to limit our holding to the facts of that case. "Under these unusual circumstances," we said, the man "ought to have his day in court and an opportunity to present his evidence. Whether a cause of action like this one would be permitted while the mother's marriage is intact is not presented in this case, and we do not decide that question." Id.

The case before us now requires that we decide that question.

The Court of Appeals presents vigorous arguments in concluding that the text of the paternity statute does not confer the trial court with jurisdiction over this case and that public policy mandates that the trial court should not have such jurisdiction. While acknowledging that section 2(a)(2) of the paternity statute provides that "[a] paternity action may be filed by ... a man alleging that he is the child's biological father," the Court of Appeals found that authorization subject to the purpose of the statute embodied in section 1.5: "The general assembly favors a public policy of establishing paternity under this chapter of a child born out of wedlock."

The Court of Appeals seized on two specific terms in the purpose section in making its argument--"establishing paternity" and "born out of wedlock." First, the appellate court found this action to violate the purpose of the paternity statute because it was brought to disestablish husband's paternity, 1 not establish neighbor's paternity. Second, the court found this action to violate the paternity statute because D.S. was not born out of wedlock; mother and husband were married at the time. We disagree with this analysis and conclude that neighbor may file a paternity action here.

We conclude that characterizing this case as one where paternity is sought to be disestablished is not accurate. Neighbor is seeking to establish that he is the biological father of D.S. This is not a situation where a man is seeking to disestablish his own paternity status, attempting to relieve himself of support obligations. In fact, in this regard this case is identical to In re Paternity of S.R.I. There the putative father also sought to establish his own paternity in the face of a statutory presumptive father. 602 N.E.2d at 1016. Just as we found the putative father in that case to be establishing, not disestablishing, paternity, we find the same of neighbor here.

As to the Court of Appeals's conclusion that the paternity statute is only available to establish paternity for children born out of wedlock, it is simply wrong to conclude that D.S. was not born out of wedlock. 2 While the paternity statute does not define "child born out of wedlock," Indiana common law is clear that the term wedlock refers to the status of the biological parents of the child in relation to each other. A child born to a married woman, but fathered by a man other than her husband, is a "child born out of wedlock" for purposes of the statute. R.D.S v. S.L.S., 402 N.E.2d 30, 38 n. 2 (Ind.Ct.App.1980); Pursley v. Hisch, 119 Ind.App. 232, 235-36, 85 N.E.2d 270, 271 (1949) (citing State of North Dakota v. Coliton, 73 N.D. 582, 17 N.W.2d 546, 156 A.L.R. 1403 (1945)). Once again, In re Paternity of S.R.I. is instructive. There, like here, the child at issue was born while mother was married. 602 N.E.2d at 1016. Just as in that case, the fact that the child was born while mother was married does not establish that the child was born during wedlock.

Although the Court of Appeals presents strong policy reasons for depriving the trial court of jurisdiction over neighbor's paternity action, in the end we conclude that our legislature has expressly authorized such actions. 3 Nothing in the paternity act precludes a man otherwise authorized from filing a paternity action on the basis of the mother's marital status. 4


In holding that Indiana courts are not available for a man to seek to establish paternity of a child born during the marriage of the child's mother and another man while that marriage is still intact, the Court of Appeals quoted at length from Justice Scalia's plurality opinion in Michael H. v. Gerald D., 491 U.S. 110, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989). K.S., 657 N.E.2d at 163-64. The Michael H. case involved a constitutional challenge to the California paternity statute on facts similar to those before us here, i.e., putative father sought to establish his paternity of a child born during the marriage of the child's mother and another man while that marriage was still intact. The California paternity statute provided that "the issue of a wife cohabitating with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage." 491 U.S. at 115, 109 S.Ct. at 2338 citing Cal.Evid.Code Ann. § 621(a) (West Supp.1989). This presumption was rebuttable by blood tests, but only if they were introduced by husband, or by wife, if the natural father filed an affidavit acknowledging paternity, and if the motion was made within two years after the birth of the child. Id. The putative father in Michael H. challenged the constitutionality of this statute, claiming that he had a liberty interest in establishing and maintaining a relationship with his biological child that was entitled to constitutional protection through the Due Process clause.

Justice Scalia's opinion advances a vigorous argument against the existence of any such constitutional right or liberty interest, Michael H., 491 U.S. at 113-32, 109 S.Ct. at 2337-47, an argument, as we have just noted, that was very persuasive to the Court of Appeals in the case before us. However, Justice Scalia's opinion was a plurality opinion joined by three other justices, not a majority opinion of the court. Four other justices, in two separate opinions, concluded that the constitutional right and liberty interest advanced by the putative father existed and would have reversed the trial court. 491 U.S. at 136-57, 109 S.Ct. at 2348-60 (Brennan, J., dissenting, joined by Marshall and Blackmun, JJ.); 491 U.S. at 157-63, 109 S.Ct. at 2359-63 (White, J., dissenting). The deciding vote was provided by Justice Stevens. It...

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