Virginia Family Law Appeals

Martin v. Howard: PATERNITY AND CHILD SUPPORT LIABILITY – BEYOND THE GRAVE – EXHUMATION FOR DNA TESTING – ILLEGITIMATE CHILD’S RIGHT TO PROVE DESCENT FOR CLAIM AGAINST ESTATE.

The Supreme Court admits that a 1997 statute, §32.1-286(C), was passed for the express purpose of reversing its holding in Garrett v. Majied, 252 Va. 46 (1996), that courts had no jurisdiction to order bodies dug up so an illegitimate child could prove paternity.  Since the statute is there, it mandates exhumation when the illegitimate child or mother of same demands it.  The trial court thought that it had discretion to deny such orders, but there is no such discretion in the statute.  The petitioner is a “party attempting to prove” parentage for §64.1-5.1 and 5.2 inheritance purposes, that is all there is to it.  Thus a woman who sued for exhumation of her supposed father’s body so as to seek a share of his estate had an absolute right to get that result.   21 VLW 1449 (4/20/07).

PATERNITY AND CHILD SUPPORT LIABILITY – BEYOND THE GRAVE – EXHUMATION FOR DNA TESTING – ILLEGITIMATE CHILD’S RIGHT TO PROVE DESCENT FOR CLAIM AGAINST ESTATE.

Martin v. Howard, ___ Va. ___, ___ S.E.2d ___, 21 VLW 1449 (4/20/07). The Supreme Court admits that the 1997 statute, §32.1-286(C), was passed for the express purpose of reversing its holding in Garrett v. Majied, 252 Va. 46 (1996), that courts had no jurisdiction to order bodies dug up so an illegitimate child could prove paternity. Since the statute is there, it mandates exhumation when the illegitimate child or mother of same demands it. The trial court thought that it had discretion to deny such orders, but there is no such discretion in the statute. The petitioner is a “party attempting to prove” parentage for §64.1-5.1 and 5.2 inheritance purposes, that is all there is to it. Thus a woman who sued for exhumation of her supposed father’s body so as to seek a share of his estate had an absolute right to get that result.

JUVENILE COURTS -- PATERNITY -- PROCEDURE -- ISSUE PRECLUSION.

A court-not-of-record's mere notes do not constitute a court order adjudicating paternity that would preclude a supposed father from later proving by DNA testing that he was not the father of a child for whom he had agreed to pay child support, the Court of Appeals holds in Alexander v. Morgan,  452 S.E. 2d 370, 9 VLW 795 (12/20/94).  The judge made a ruling and some notes, but no endorsed order was ever entered as planned after the JDR Court hearing in which the supposed father had in effect acknowledged paternity and agreed to a support amount.  Instead, a written agreement was entered into within three months of the ruling.  The juvenile court's mere notes did not make the appellant irrevocably the legal father of this child.  After all, the court's notes expressly showed that they were not intended to constitute a final order. 

JUVENILE COURTS – JDR & CIRCUIT – APPEALABILITY – INTERLOCUTORY.

A circuit court order denying a motion to dismiss on res judicata grounds, and remanding a support case to juvenile court for paternity blood tests and further proceedings, is not appealable.  Such an order is interlocutory, the Court of Appeals explained in Whitaker v. Day, 32 Va. App. 737, 530 S.E.2d 924, 15 VLW 162 (7/11/00).  This non-final order does not "adjudicate the principles of the cause."

CHILD CUSTODY – INTERSTATE – UCCJEA – HOME STATE – “PERSON ACTING AS A PARENT” – LORD MANSFIELD FATHERS.

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) meets Lord Mansfield’s rule in an important holding by the Virginia Court of Appeals in O’Rourke v. Vuturo, 638 S.E.2d 124, 49 Va.App. 139 (12/19/06). In a very common old story, a pregnant mother had disclosed to her husband before the birth that not he, but a paramour, was the father, but they decided she should have the child and they should raise the child as their own, and the husband’s name was on the birth certificate.

PATERNITY -- ENTRUSTMENT -- ADOPTION.

When exactly the unknown father of an unwed mother's child can be considered fully and legally unknown is explicated to some degree in Unknown Father of Janet v. DSS, ___ Va. App., 422 S.E.2d 407 (1992). This involves the various statutes turning upon whether identity of such a father is "not reasonably ascertainable," (see Code Sections 16.1-263E, 16.1-283C, §63.1-204, 63.1-220.2). The identity of a father was not reasonably ascertainable, for purposes of terminating his parental rights, where the mother indicated she had had numerous sexual partners around the time of conception and was unable to identify them, and the unknown father, who had a guardian ad litem, failed to communicate with the infant for over 12 months after foster care placement. It matters not that he had no actual or constructive notice of the baby's existence.

PATERNITY -- PRESUMPTIONS -- RES JUDICATA.

The Court of Appeals helped to put into perspective the statutory presumptions in paternity as it held in Dunbar v. Hogan, ___ Va. App. ___, ___ S.E.2d ___, 8 VLW 98, that even a formal acknowledgment of paternity does not constitute a judgment which becomes res judicata and precludes all further litigation of the issue. One who confesses paternity and then finds out through DNA testing that that was ill-advised can still take the issue to trial.

PATERNITY — LACHES.

Those who thought that all concepts of laches and similar issue preclusions from the passage of time have been thoroughly excised from the law of paternity and child support now stand corrected. When it is a case of a man petitioning to determine his paternity of children born 11 and 12 years ago (the mother herself having died in 1987), his inexcusable delay keeps him out of court. These children were placed in foster care in 1991, and even at that time this father had not come around to assert his fatherhood, nor was he making any claim to take over the parenting of these children. Payne v. Lynberg, ___ Va. App. ___, ___ SE2d ___, 12 VLW 66 (6/10/97).