R. D. S. v. S. L. S.

Decision Date26 March 1980
Docket NumberNo. 2-778A251,2-778A251
Citation402 N.E.2d 30
PartiesR. D. S., Respondent, Cross-Petitioner Appellant, v. S. L. S., Petitioner, Cross-Respondent Appellee.
CourtIndiana Appellate Court

Frederick F. Frosch, Frosch & Frosch, Indianapolis, for R. D. S.


Husband appeals the trial court's determination of child's parentage and husband's affirmative obligation of support.

Husband and wife were married February 16, 1974, approximately three weeks prior to the birth of her child on March 3, 1974. Wife's petition for dissolution filed September 12, 1974 was granted February 23, 1978 by a decree which provided, in part:

There was born as a result of this marriage One (1) child, namely, R. M. S. , age three (3). That the Petitioner is a fit and proper person to have the care and custody of said minor child subject to the reasonable rights and visitations to the Respondent herein.

That the sum of Thirty ($30.00) Dollars per week per child is a reasonable amount of support on said minor child.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED BY THE COURT: That the Petitioner shall have care and custody of the parties minor child, namely R. M. S. age three (3), subject to reasonable rights and visitation to the Respondent herein.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED BY THE COURT: That the Respondent shall pay to the Petitioner for the support of said minor child, the sum of Thirty ($30.00) Dollars per week per child.


The trial court erred in determining the child was born of the marriage. 1

A child born during marriage 2 is presumed legitimate. This presumption is not conclusive although it may be rebutted only by direct, clear, and convincing evidence. Duke v. Duke, (1962) 134 Ind.App. 172, 185 N.E.2d 478. Uncontroverted evidence of non-access by husband at the time of conception will meet this high standard. Pilgrim v. Pilgrim, (1947) 118 Ind.App. 6, 75 N.E.2d 159.

We have such non-controverted evidence before us. At trial wife admitted husband was not the biological father of the child. In fact, husband and wife did not meet until Christmas 1973, at which time wife was visibly pregnant.


Some jurisdictions take the position in a dissolution of marriage the duty of continued child support falls upon only a biological or adoptive parent. Other jurisdictions, without statutory authorization, have used a myriad of rationales to extend the duty of support to a wife's illegitimate child upon the termination of the marriage.

1. Equitable adoption.

A man, marrying a woman he knows is pregnant, is held to adopt the child at birth and is held liable for its support as one standing in loco parentis. This principle was stated in Miller v. Anderson, (1885) 43 Ohio St. 473, 3 N.E. 605, 608:

If another man, not the father of the unborn child, elects to stand in loco parentis to the child, the law will esteem such man as the father. That one who marries a woman that he knows to be enciente is regarded in law as adopting the child into the family at its birth. That he could not expect the mother to discard it, or abandon it at its birth, or refuse it nurture or maintenance, and that the child, so receiving nurture and support, must necessarily become one of the family of the wife, which would also be of the family of the husband. That this understanding must necessarily enter into the marriage contract of the husband and wife; and when this relation is established, the law raises a conclusive presumption that the husband is the father of such child.

* * * And this rule, as announced, is established upon obvious principles of public policy and decency. This child was born in 1865. The husband had prior thereto condoned the wife's offense, and, by taking her in marriage with full knowledge of her condition, adopted her child on its birth into his family, and, even if he was not its natural father, consented to stand in law as such, with all the rights and responsibilities of a father in fact.

See, Gusten v. Gusten, 108 Ohio App. 171, 161 N.E.2d 68.

2. Equitable estoppel.

A man who makes an express or implied misrepresentation of fact (fatherhood) to the child inducing the child to alter his position to his prejudice remains liable for child's support upon termination of marriage.

This concept was thoroughly discussed in Clevenger v. Clevenger, (1961) 189 Cal.App.2d 658, 11 Cal.Rptr. 707, 714-715, 90 A.L.R.2d 569, 579-580.

If the facts should show, however, that the husband represented to the boy that he was his father, that the husband intended that his representation be accepted and acted upon by the child, that the child relied upon the representation and treated the husband as his father and gave his love and affection to him, that the child was ignorant of the true facts, we would have the foundation of the elements of estoppel (citations omitted).

Breaking down the factors involved here, the benefits to the husband in such instance would be (1) the bestowal upon him of the love and affection of the child as a natural child, based upon the representation that the husband was the natural father, (2) the substitution of the husband in the status of father in the place of the natural father, so that the putative father would have the possession and custody of the child instead of the natural father, and the right to the child's earnings, (3) the community's recognition of the husband as a father, a status from which appellant undoubtedly derived prestige and fulfillment.

The husband's representation that he was his natural father would cause these consequences and detriments to the child: (1) It would deprive the child of the potential action of the mother, as his guardian, at the time of the child's birth, to hold the natural father liable for the support of the child. The child thus relies upon the husband's representation and does not attempt to find the natural father. As of the present date it is realistically impossible to do so. This reliance works a definite detriment to the child. (2) It would induce the child to accept the husband as his natural father and render to him the affection and love of a son, with the son's reasonable expectation of care, support and education until adulthood. The reversal of this representation, through the publication of the illegitimacy of the child, inflicts deep injury upon him. To be designated as an illegitimate child in preadolescence is an emotional trauma of lasting consequence. Having placed the cloak of legitimacy upon the child, having induced the child to rely upon its protection, the husband by abruptly removing it surely harms the child. The child has therefore relied on the conduct of the husband to his injury. (3) It would induce the child to hold himself out to the community as the natural son of the husband, one of the benefits which the appellant apparently desired, only to suffer the abrupt removal of that status, and to undergo the subsequent social injury.

These are the elements of estoppel, and that they would, if established, apply here in unusual circumstances, does not make them the less appropriate. If we sanction them in dealing with property in commercial transactions, we do not discard them in dealing with a child and an asserted father involved in a deep-rooted human relationship.

3. Loco parentis.

An obligation of continued support is imposed if circumstances other than marriage of husband and natural mother indicate husband's assumption of the position of loco parentis and husband's intent that the position continue after termination of the marital relationship.

In Fuller v. Fuller, (D.C.App.1968) 247 A.2d 767, 770, first defined the term loco parentis :

(It) refers to a person who has put himself in the situation of a lawful parent by assuming the obligations incident to the parental relation without going through the formalities necessary to legal adoption. It embodies the two ideas of assuming the parental status and discharging the parental duties.

Niewiadomski v. U. S., (6th Cir. 1947) 159 F.2d 683, 686, cert. denied, 331 U.S. 850, 67 S.Ct. 1730, 91 L.Ed. 1859.

Thus, the continuation of the relationship of loco parentis is a matter which lies within the will of the husband and it may be abrogated by him at any time. One such time is upon the dissolution of marriage unless husband intends the relationship to continue.

4. Contract to support or adopt child.

This theory was discussed in Clevenger v. Clevenger, supra.

On the other hand, we see no theoretical reason why a contract for the support of an illegitimate child during its minority between the mother and the mother's husband would not be enforceable. The husband receives as consideration the custody and control of the child as well as the right to its earnings.

. . . .

(T)he promise by the putative father to support the child would fall within the sanction of section 90 of the Restatement of the Law of Contracts, declaring: "A promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise." . . .

The prerequisite to any such consensual obligation is, of course, the consummation of an express agreement and its partial performance.

Looking to Indiana precedent, this Court has said a support order against a husband who is not the child's father

. . . would have been improper. The statute providing that the court shall make an order for custody and support refers only to the children of the marriage. § 3-1219, Burns' 1933. 3

Pilgrim v. Pilgrim, (1947) 118 Ind.App. 6, 75 N.E.2d 159. The Dissolution of Marriage Act, effective September 1, 1973, effected no change. IC 31-1-11.5-2(c) reads:

The term 'child' means a child or children of both parties to the marriage and includes children born out of wedlock to such parties as...

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