Pettinato v. Pettinato
| Decision Date | 30 November 1990 |
| Docket Number | No. 89-56-A,89-56-A |
| Citation | 582 A.2d 909 |
| Parties | Gregory J. PETTINATO v. Susanne L. PETTINATO. |
| Court | Rhode Island Supreme Court |
This matter comes before the Supreme Court on Susanne L. Pettinato's appeal from a Family Court order awarding custody of a minor child to her now former husband. We affirm.
On May 4, 1987, Gregory J. Pettinato (hereinafter Gregory) filed a complaint for divorce against Susanne. On the same date, Gregory also filed a motion for temporary custody of Gregory J. Pettinato, Jr. (hereinafter Gregory, Jr.).
On May 4, 1987, the Family Court issued an ex parte custody order awarding temporary custody of Gregory, Jr., to Gregory. After a hearing on a motion for temporary custody before the trial justice, an order granting joint custody with possession in Gregory was issued on June 16, 1987, and continued on July 7, 1987. An amended complaint for divorce was filed on September 13, 1988, by Gregory, naming both Gregory, Jr., and Nicholas, born December 28, 1987, as minors. Gregory sought custody of both children. 1
Although many of the facts were disputed, it appears that a relationship developed between Gregory and Susanne in the fall of 1984. The parties disagreed about the date when they began sexual relations. However, it is undisputed that the parties were engaging in sexual relations by February 1985. Susanne testified that she did not engage in sexual relations with Gregory between February 14, 1985, and April 7, 1985. During that period she traveled to Florida for two weeks. Moreover, Susanne testified, she did not speak with Gregory until after November 1985 when she returned to Rhode Island from her second trip to Florida.
Susanne gave birth to Gregory, Jr., on January 5, 1986. Despite the parties' discrepancies regarding events leading to the child's birth, Gregory was named as the child's father on the birth certificate filed on January 13, 1986.
Susanne testified that she told Gregory while in the hospital after giving birth that Gregory, Jr., was the child of the man she had stayed with while in Florida. Gregory disputed this testimony. He testified that Susanne telephoned him in April 1985, informed him of her pregnancy, and stated that he, Gregory, was the father. Gregory first became aware of Susanne's denial of his paternity at the time of this divorce action when she filed her answers to interrogatories.
The evidence established that the parties had a fairly nomadic existence after the birth of Gregory, Jr. For approximately one month after the child's birth, Susanne and the child lived at her parents' home. Gregory was forbidden by her parents to visit Susanne or Gregory, Jr., although the parties would arrange to meet at a friend's house without the knowledge of Susanne's parents. Thereafter, Susanne and the child shared a rented apartment with a friend for approximately three months before moving into an apartment with Gregory.
Gregory, Susanne, and Gregory, Jr., lived in an apartment from May 1986 until October 1986. All three then moved into Gregory's parents' home in October 1986. Gregory and Susanne married on December 21, 1986. Gregory testified that he married Susanne because he "thought it would be the proper thing to do to make a family and be on our own together and bring up our child." The parties remained at his parents' home until Susanne moved out on April 26, 1987. Susanne initially left Gregory, Jr., with Gregory and his parents. Susanne testified, however, that the Cranston police retrieved Gregory, Jr., the next day and brought the child to her at a friend's home. After leaving Gregory, Susanne gave birth to Nicholas.
The Family Court heard testimony from Gregory's parents regarding the care given to Gregory, Jr., by Susanne. Gregory's father, Frank Pettinato, testified that "she would do something else rather than take care of the baby." Moreover, Gregory's mother, Barbara Pettinato, testified to similar situations when Susanne suggested it was someone else's turn to care for Gregory, Jr.
Over the objections of Gregory, the court heard testimony from Marjorie Kimball, a medical technologist at the Rhode Island Blood Center. Kimball testified that she performed genetic blood testing on Gregory, Susanne, and Gregory, Jr. As a result of this genetic blood testing, Kimball concluded that it was not possible for Gregory to be the biological father of Gregory, Jr.
The trial justice issued an interlocutory decision pending entry of final judgment on October 11, 1988. He granted the petition of Gregory for an absolute divorce and awarded Gregory permanent custody of Gregory, Jr., subject to all reasonable rights of visitation for Susanne. In his decision the trial justice based the award on the care given Gregory, Jr., by Gregory, the length of time Gregory, Jr., spent with Gregory, and the bonding that had occurred between Gregory, Jr., and Gregory.
On appeal Susanne argues that the trial justice improperly overlooked and/or misconceived the expert testimony regarding the genetic blood testing that excluded Gregory as the biological father of Gregory, Jr. Susanne contends that as the natural parent of Gregory, Jr., she is entitled to custody of the child absent a showing of unfitness. She also argues that the award of custody to Gregory was not in accordance with the best interests of the child.
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(3) After the child's birth, he and the child's natural mother have married, or attempted to marry, each other by a marriage solemnized in apparent compliance with law, although the attempted marriage could be declared invalid, and:
(iii) He is obligated to support the child under a written voluntary promise or by court order;
(4) He acknowledges his paternity of the child in a writing filed with the clerk of the [F]amily [C]ourt, who shall promptly inform the mother of the filing of the acknowledgement, and she does not dispute the acknowledgement, within a reasonable time after being informed thereof, in a writing filed with the clerk of the [F]amily [C]ourt. If another man is presumed under this section to be the child's father, acknowledgement may be effected only with the written consent of the presumed father or after the presumption has been rebutted.
(b) A presumption under this section may be rebutted in an appropriate action only by clear and convincing evidence. If two (2) or more presumptions arise which conflict with each other, the presumption which on its facts is founded on the weightier considerations of policy and logic controls. The presumption is rebutted by a court decree establishing paternity of the child by another man."
Susanne admits that Gregory has met the requirements of § 15-8-3(a)(3)(ii). 2 The parties married after Gregory, Jr.'s birth, and with his consent Gregory was named as the child's father on the birth certificate. Nevertheless, Susanne contends, the results of the genetic blood testing that excluded Gregory as the biological father provide the "clear and convincing" evidence required by § 15-8-3(b) to rebut the presumption of Gregory's paternity.
We are concerned about the situation before the court wherein a mother can tell a man that he is the father of her child, marry him and live together as a family, and then illegitimize the child during a divorce proceeding by attacking the legal presumption of paternity that she helped to bring about. The situation before us is a matter of first impression in this state. After reviewing the conclusions arrived at by other states that have considered...
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