State Dept. of Human Services ex rel. K.A.G. v. T.D.G.

• Decision Date: 05 October 1993
• Docket Number: No. 79578,79578
• Citation: 1993 OK 126,861 P.2d 990
• Parties: STATE of Oklahoma DEPARTMENT OF HUMAN SERVICES ex rel. K.A.G., Appellant, v. T.D.G., Appellee.
• Court: Oklahoma Supreme Court

Page 990

861 P.2d 990

1993 OK 126

STATE of Oklahoma DEPARTMENT OF HUMAN SERVICES ex rel. K.A.G., Appellant, v. T.D.G., Appellee.

No. 79578.

Supreme Court of Oklahoma.

Oct. 5, 1993.

Certiorari to the Court of Appeals, Division No. 3, Bryan County; Joe C. Taylor, District Judge.

When her child, M.T.G., was born, K.A.G. (mother) was an unwed mother. She applied for Aid to Families with Dependent Children (AFDC). The benefits were approved by the appellant, Department of Human Services (Human Services). Pursuant to 56 O.S.1991 § 237(C)(1), the mother executed an assignment to Human Services of any support rights she or her child might be entitled to receive. She named the appellee, T.A.G. (putative father), as the child's father. Upon approval of the benefits, Human Services commenced an action to determine paternity and to establish support obligations. The father moved to dismiss on the basis of a 1979 release executed by the mother. The Honorable Joe C. Taylor, trial judge, granted the motion to dismiss. Finding that 10 O.S.1991 § 77.1 requires a trial court to order any defendant denying paternity to submit to a blood test, the Court of Appeals found the release void as against public policy. We find that a contract attempting to deprive permanently a child of support is void as against public policy, and that it does not prevent Human Services from bringing a paternity action and establishing support obligations pursuant to 10 O.S.1991 § 89.

CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF APPEALS VACATED; REVERSED AND REMANDED.

Jena J. Sams, Asst. Dist. Atty., Durant, for appellant.

Thomas R. Carlock and Gregory L. Johnson, Ardmore, for appellee.

KAUGER, Justice.

The single first impression issue presented is whether a release between a

mother and a putative father absolving him of support obligations bars the appellant, Department of Human Services (Human Services), from bringing a paternity action and establishing support obligations. We find that a release attempting to deprive permanently a child of support is void as against public policy, and that it does not prevent Human Services from bringing a paternity action and establishing support obligations pursuant to 10 O.S.1991 § 89. ¹

FACTS

When her child, M.T.G., was born, K.A.G. (mother) was an unwed mother. She applied for Aid to Families with Dependent Children (AFDC). The benefits were approved by the appellant, Department of Human Services (Human Services) in 1989. Pursuant to 56 O.S.1991 § 237(C)(1), ² the mother executed an assignment to Human Services of any support rights she or her child might be entitled to receive. She named the appellee, T.D.G. (putative father), as the child's father. ³ Upon approval of the benefits, Human Services commenced an action to determine paternity and to establish support obligations on January 13, 1992. ⁴ The father moved to dismiss on the basis of a 1979 release executed by the mother. It provides:

"Whereas a dispute has arisen regarding the paternity of the minor child [M.T.G.] and it is the desire of the parties to settle out of Court, the undersigned parties, [K.A.G.] and [T.D.G.] hereby agree that:

1. [T.D.G.] acknowledges that he is not the father of said child and hereby releases all claims to said child incident thereto, including, but not necessarily limited to, guardianship of the person or estate and rights of visitation.

2. [K.A.G.], in consideration hereof, agrees not to prosecute a paternity action against [T.D.G.] nor shall she ever seek to obtain child support from him or attempt to hold him out as the father of said child.

Agreed to this 28th day of May, 1979.

/s/[T.D.G.]

/s/[K.A.G.]"

The trial court granted the motion to dismiss. Finding that 10 O.S.1991 § 77.1 ⁵ requires a trial court to order any defendant denying paternity to submit to a blood test, the Court of Appeals found the release void as against public policy. We granted certiorari on May 3, 1993, to consider a first impression question--whether a contract between a mother and a putative father which provides that the man is not the father of the child, and which absolves him of the duty to support a minor child bars Human Services from bringing a paternity action and establishing support obligations.

A RELEASE ATTEMPTING TO DEPRIVE PERMANENTLY A CHILD OF SUPPORT IS VOID AS AGAINST PUBLIC POLICY. IT DOES NOT PREVENT HUMAN SERVICES FROM BRINGING A PATERNITY ACTION AND ESTABLISHING SUPPORT OBLIGATIONS PURSUANT TO 10 O.S.1991 § 89.

The putative father argues that the contract entered into between himself and K.A.G. is valid, and that failure to enforce it conflicts with this Court's opinion in Thrash v. Thrash, 809 P.2d 665, 667-68 (Okla.1991). Human Services insists that the release does not bar it from bringing a paternity action and establishing support obligations.

Thrash is distinguishable on its facts from the cause presented here. In Thrash, the parents entered into an agreement providing for automatic increases in child support. Finding that the contract was not unenforceable per se, and that neither fraud nor mistake was proven, we upheld the parental agreement for support. Here, the contract sought to be enforced is not an agreement for support. Instead, it is a waiver of any and all liability of the putative father. ⁶

The issue of whether an unwed mother may waive her child's right to support from the child's father is one of first impression in Oklahoma. Courts in other jurisdictions which have addressed the issue uniformly hold that an illegitimate child's right to support cannot be contracted away by its mother. These courts find that releases executed by a mother, purporting to affect support, are invalid to the extent that they might diminish the rights of the child. ⁷ The agreements have been struck on grounds that: 1) the child was not a party Here, the minor was not a party to the contract, and no court approved it. ¹³ Pursuant to 10 O.S.1991 §§ 70 ¹⁴ and 89, ¹⁵ a child has an independent right to maintain a paternity action and to request support and maintenance. Additionally, our decisions addressing a married woman's ability to relieve a husband of the obligation to support his minor children, ¹⁶ and the statutory scheme providing that individuals judicially determined to be the father of a child are liable for the support and education of the child to the same extent as the father of a child born in wedlock, ¹⁷ mandate that we strike the release. Public policy demands that, in matters of support, the best interest of the child be paramount. ¹⁸ We can perceive of no situation in which allowing Although parties represented by counsel may contract on the issue of child support, ²⁰ a trial court is not bound by the agreement if the amount of child support is unjust, inequitable, unreasonable or inappropriate under the circumstances or is not in the best interest of the child. ²¹ Since 1917, we have held that a married woman cannot, by a separate contract, relieve her husband of the obligation to support his minor children. ²² Likewise, pursuant to 10 O.S.1991 § 83, ²³ an individual judicially determined to be the father of a child is liable for the support and education of the child to the same extent as the father of a child born in wedlock. Because § 83 imposes identical duties of support upon husbands and upon unwed fathers for the support of their offspring, and because married women may not relieve their husbands of support obligations to their children, an unwed mother may not, through settlement agreement, relieve a putative father of his obligation to support his minor child. Indeed, equal protection concepts would be violated if the right to seek support from parents during a child's minority were granted to children born in wedlock but denied to those who are not. ²⁴ Once a state grants an opportunity for legitimate children to obtain parental support, it must also grant the opportunity to children born out of wedlock. ²⁵ If a state posits a judicially enforceable right on behalf of children to needed support, as the Legislature has done through § 83, there is no constitutionally sufficient justification for denying the same right to a child born out of wedlock. To do so would be a denial of equal protection. ²⁶

                to the agreement; 8  2) the minor has an independent right to institute a paternity action; 9  3) the agreement was not approved by a tribunal; 10  4) the right to proceed in an action for support belongs to the child, and that it cannot be bargained away by a settlement between the father and the mother; 11  and 5) any attempt to permanently deprive a child of support is void as against public policy. 12
                parents to forever bar a child's right to support would be in the best interest of the child.  A contract which attempts permanently to deprive a child of support is void as against public policy.  Such an agreement does not prevent Human Services from bringing a paternity action and establishing support obligations pursuant to 10 O.S.1991 § 89. 19
                

We have found only one case involving a contract in which the parties alleged that the release itself would bar a proceeding by the state to enforce parental support obligations if a child is receiving AFDC benefits--State v. Webster, 398 A.2d 792, 794 (Maine 1979). It, like Oklahoma statutory and case law and judicial decisions from other jurisdictions, supports the conclusion that such an agreement does not bar a proceeding to establish paternity and to impose support obligations upon a putative In Webster, the Maine court found that the state's interest in obtaining contributions from the father outweighed arguments in favor of a quick settlement of the paternity action--even if immediate settlement might be important to the mother's economic well being. The court reasoned in Webster that the purpose of statutes similar to 10 O.S.1991 § 89 ²⁷ is to ensure that public funds will not bear the entire burden of supporting a...