Petition of Ash, 92-1482

• Decision Date: 20 October 1993
• Docket Number: No. 92-1482,92-1482
• Citation: 507 N.W.2d 400
• Parties: Upon the Petition of James Michael ASH, Appellee, And Concerning, Andrea Lynn Kotecki, Appellant.
• Court: Iowa Supreme Court

Page 400

507 N.W.2d 400

62 USLW 2323

Upon the Petition of James Michael ASH, Appellee And Concerning, Andrea Lynn Kotecki, Appellant.

No. 92-1482.

Supreme Court of Iowa.

Oct. 20, 1993.

Catherine Zamora Cartee and Patricia Zamora, Davenport, for appellant.

John Wunder, Muscatine, for appellee.

Considered by HARRIS, P.J., and CARTER, LAVORATO, NEUMAN, and ANDREASEN, JJ.

LAVORATO, Justice.

In this paternity proceeding, the district court determined that James Michael Ash was the "equitable parent" of a child born to Andrea Lynn Kotecki. The district court reached this decision on the basis that such a determination was in the best interests of the child. The district court determined that James was the equitable parent of the child despite the fact that James was not the biological parent. Nor was James ever married to Andrea. James' relationship with the child stems from the mother's cohabitation with him several months before and twelve months after the birth of her child.

The decisive issue in this appeal by the mother is whether we should recognize the equitable parent doctrine. Because there is no basis for adoption of such a doctrine under our common law and statutes, we decline to embrace it. We reverse the district court's decision to the contrary.

I. Background Facts.

James was twenty-five and Andrea was seventeen when they met in the spring of 1985. At the time, Andrea was having difficulties at home. Because of those difficulties Andrea moved in with James and his girlfriend. In August James asked Andrea and his girlfriend to leave; they did.

Andrea did not fare well on her own. She called James and asked if she could come back; he agreed provided she finish high school. At the time Andrea was in the eleventh grade.

About three weeks after Andrea returned to James' home, they began having sexual intercourse for the first time. Sometime in September Andrea informed James of her pregnancy via a note. Although the evidence is not clear on whether James knew he was not the father, the district court "believe[d] that James did not really feel the child was his or at least had a very strong suspicion it was not his."

The child was born February 1, 1986. James took Andrea to the hospital and was there when the child was born. There is no father listed on the birth certificate; however, the document does carry James' last name. Andrea signed the certificate in her maiden name.

Several days after the birth, Andrea asked for a paternity affidavit. A social worker's report shows that James signed such an affidavit on February 3. James testified he (1) was given the affidavit and a mailing envelope and (2) mailed the affidavit to the bureau of vital statistics. The bureau has been unable to locate the affidavit.

James and Andrea lived together until February 1987. During this time, James assisted in caring for the child. He (1) bathed and fed her, (2) changed her diapers, and (3) provided psychological, emotional, and financial support. James continues to provide health and dental insurance for the child. Medical claim forms for the child show that Andrea listed the child with James' insurance.

James continued regular visitation with the child even after he and Andrea ended their relationship. He bought the child clothing and toys and paid for her dance lessons. Since 1990 James has paid the child's tuition for preschool.

Since Andrea left the second time, James has helped her financially at various times. He has paid her rent and has bought her groceries when she was out of money. This financial help was in addition to the $35-$50 per week James was voluntarily paying Andrea for the child's support, support sums that Andrea herself set.

James' regular visitation with the child ended in July 1991. On July 15, 1991, Andrea--now married and living in Illinois--cut off visitation in a letter to James. In the letter Andrea told James she did not want him to see the child anymore. She implored him to "get on with your life" and "have a family and children of your own." Andrea told the child James was not her biological father. The child was now five years old.

II. Background Proceedings.

In an effort to restore visitation with the child, James filed suit in August 1991. In it he asked that he be (1) adjudicated as the natural father of the child, (2) awarded reasonable visitation, and (3) ordered to pay a reasonable amount of child support.

Andrea moved to quash service on jurisdictional grounds regarding all three issues. The district court, Judge Edward B. de Silva, Jr., granted the motion regarding visitation and child support. Applying the provisions of Iowa Code chapter 598A (Uniform Child Custody Jurisdiction Act), the court declined to exercise jurisdiction on these two issues. But the court denied the motion as to paternity, concluding that (1) the child and James had a significant contact with Iowa and (2) no other state would have jurisdiction to decide this issue. See Iowa Code §§ 598A.3(1)(b) and (d) (1991).

During the pendency of these proceedings, Andrea filed a paternity action in Illinois. The man she named as the biological father did not contest, resulting in an order establishing him as the child's father. James had no notice of the Illinois proceedings.

Following a hearing on the paternity issue here, the district court, Judge Max R. Werling, determined that James,

by reason of having become the psychological parent and having stood in a position of in loco parentis with this child, has become a person to whom the doctrine of "equitable parent" applies and that the respondent, Andrea Lynn Kotecki, should be and is hereby estopped from denying that parentage.

III. Equitable Parent Doctrine.

This indeed is an unusual case. The usual scenario is that a putative father is denying paternity to avoid paying child support. In this reverse situation, James--although not even a putative father--embraces fatherhood, acknowledges his obligation for support, and desires visitation with the child.

Given our case law, we can easily understand why James chose the paternity route to secure what to him are precious visitation rights with the child. Custodial parents have a common law veto power over visitation between the child and all other third parties, except the noncustodial parent. Lihs v. Lihs, 504 N.W.2d 890, 891 (Iowa 1993) (minor children of deceased's second marriage have no common law or statutory right to visitation with minor children of deceased's first marriage); In re Marriage of Freel, 448 N.W.2d 26, 27-28 (Iowa 1989) (woman who had lived with child and his father for five years but was not child's biological mother had no common law or statutory right to visitation with child after ceasing to live with father); Olds v. Olds, 356 N.W.2d 571, 574 (Iowa 1984) (maternal grandparents were without any common law or statutory right to petition for visitation with grandchildren when their own daughter had custody of grandchildren).

The only exception to the common law rule is a statutory one that allows grandparents visitation under limited circumstances specified in the statute. See Iowa Code § 598.35. In Olds, the grandparents were denied visitation because they did not fit into any of the situations described in the statute. Olds, 356 N.W.2d at 573.

This court, in Olds, cited sound policy reasons for limiting visitation with third parties other than a noncustodial parent. Such a limitation

demonstrates a respect for family privacy and parental autonomy. The rule recognizes that the government is ill-equipped to dictate the details of social interaction among family members. It also recognizes that the parenting right is a fundamental liberty interest that is protected against unwarranted state intrusion.

Id. at 574. Olds also noted that courts which give a custodial parent veto power do so "on the basis that judicial enforcement of visitation would divide and thereby hamper proper parental authority, force the child into the midst of a conflict of authority and ill feelings" between the parent and other persons, and "coerce what should remain a moral rather than legal obligation." Id. at 573.

We have even rejected a best interest of the child argument for inferring a general intent from the section 598.35 grandparent visitation statute to extend visitation to other third parties. Lihs, 504 N.W.2d at 893. We did so because

we would have no clear guidelines as to where such visitation should stop. For example, claims for visitation could arise from siblings, aunts, uncles, and other persons with special relationships. With so many potential petitioners, a court would have to decide which petitioners are more deserving of visitation than others, and how much time each petitioner should receive with the child. It could be chaotic, at best, assigning so many diverse visitations to an already limited number of weekends and holidays.

Id.

James hopes to avoid Andrea's veto power as to his desire for visitation by elevating his status to that of a "parent" through a judicially created fiction in the guise of the equitable parent doctrine. If he were successful, we have no doubt that his next step would be to petition the Illinois courts for visitation. This is a reasonable assumption given that his purpose in filing this action originally was to restore the visitation that Andrea abruptly cut off.

In applying the equitable parent doctrine the district court relied heavily on Atkinson v. Atkinson, 160 Mich.App. 601, 408 N.W.2d 516 (1987). In Atkinson, the wife denied her husband was the biological father of a child born during the marriage. Blood tests confirmed the husband was not the biological father. The issue arose out of a custody dispute in a divorce action. The Michigan court of appeals adopted the doctrine of equitable parent, finding that

a husband who is not the biological father of a child born or conceived during the marriage may be considered the natural fa...