2008 Blog Contest Entries Posted! November 04, 2008
Entry 1: by Preston Burford
Memo Regarding Paternity Action of Daniel Taylor
Daniel will most likely have to submit to a paternity test, but not being the biological father should not stop him from gaining custody or visitation to the child. Under Griffith, paternity will only establish biology and support, not necessarily custody. Griffith v. Pell, 881 So. 2d 184, at 188.
The facts of this case are better case than that of Griffith because here Daniel is most likely the biological father of the younger child. In the Griffith case, it was presumed that the legal father was not the biological father of the youngest child, that particular suit was filed over the oldest child. Griffith at 185. Here, we have the opposite; the youngest child is presumed to be the biological child of the legal father. This should have a positive impact on Daniel’s case. If we assume that Daniel will be granted custody or some visitation rights with the youngest child, and that he will be a part of that child’s life, and by proxy in the life of the oldest child, it may be in the oldest child’s best interest to allow Daniel some rights to him also.
Because the court must allow a paternity test to the putative father under Mississippi Code § 93-9-21 (Supp.1993), it would be a good idea to send Chris Millsap a letter explaining the consequences of being acknowledged as the biological father. If he is only filing suit so that everyone will know the “truth” that he is the father, he may not be willing to take on the financial burden that will come with paying child support. In the alternative, Daniel may still end up with custody, and the child may receive financial support from both his biological parent and legal parent. Either scenario may be beneficial to the child in the end.
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Entry 2: by Jenessa Carter Hicks
MEMORANDUM
TO: M. Craig Robertson
FROM: Jenessa Carter Hicks
DATE: October 30, 2008
RE: Daniel Taylor’s paternity claim regarding Trey Taylor
QUESTIONS PRESENTED
Whether Daniel Taylor should submit to a paternity test for his son, Trey, and whether he, if found to not be Trey’s biological father, could have a viable custody claim based on the doctrine of in loco parentis.
BRIEF ANSWER
Daniel should submit to a paternity test because if he refuses, the judge could automatically resolve the issue against him. Also, based on the doctrine of in loco parentis, which is followed in Mississippi and allows a party other than a natural parent to exercise rights regarding a minor child, Daniel probably has a very real chance of the court judicially determining him to be Trey’s father-in-fact and granting him at least joint custody of Trey even if he is determined to not be Trey’s biological father.
FACTS
Daniel Taylor and his wife, Cindy, have been married for about seven years, are about to embark upon the quest to obtain a divorce. Cindy has had an affair, spanning the life of the marriage, with a man that she met at her gym, Chris Millsap. Daniel and Cindy have two children, Trey, who is five, and Jasper, who is three. Daniel has been completely devoted to his children for their entire lives, doing everything expected of a father and more. He has excellent relationships with both of his boys and provides for their needs. Recently, Cindy informed Daniel that there is a very real possibility that he may not be Trey’s biological father (she is certain he is Jasper’s father). Chris Millsap, Cindy’s paramour and the man she claims could be Trey’s biological father, is requesting a paternity test so that the truth regarding who is actually Trey’s father will be known once and for all. Daniel wishes to preserve his paternity of Trey and keep both Trey’s and Jasper’s lives as normal as possible.
DISCUSSION
Likely, there is no course of action that Daniel could take to prevent Chris Millsap’s paternity test from occurring. According to Thoms v. Thoms, the paternity test will have to occur because “upon motion by either [party] for an order requiring blood tests, the trial judge must grant the motion.” This is true even if the court finds that it would not be in the child’s best interests to undergo the test. Also, according to House Bill 524, which revised Miss. Code Ann. § 93-9-9(1) and was approved by the Governor on April 3, 2008, a paternity action is now permissible “at any time until such child attains the age of twenty-one (21) years”. Therefore, so long as Cindy and Chris are requesting that it be done, the paternity test of Trey will occur, regardless of the obviously detrimental effect it may have on Trey. Additionally, Daniel himself could be irreparably harmed if he refuses to cooperate in the testing process, as a court can automatically resolve the paternity issue against the party refusing to be tested, which would forever close Daniel’s claim to fatherhood regarding Trey. In sum, it would be in Daniel’s best interests to participate in the testing process as well.
However, even if Daniel were found to not be Trey’s biological father, he has a very good claim for custody under the Mississippi doctrine of in loco parentis. In the case of Griffith v. Pell, the Mississippi Supreme Court recognized the doctrine of in loco parentis, which allows a person other than a natural parent (in the Griffith case, a father in the same position as Daniel) to assert constitutionally protected liberty interests to a child. The court stated that the relationship between the father and the child was about more than simple biology, that is, who is the biological father. The question of parenthood should instead be based on facts that include: whether the person asserting a parental interest “takes a child of another into his home and treats it as a member of his family, providing parental supervision, support and education, as if it were his own child”. The case of J.P.M. v. T.D.M. involved facts that are extremely similar to those in Daniel’s case. There, a child born during a couple’s marriage was determined after a period of years to not be the biological child of the husband. After the court considered Griffith’s doctrine of in loco parentis and determined that the husband had acted as and was considered by the child to be the father because of his involvement in day to day activities, among other things, it determined that it would be in the child’s best interests to continue as if the husband were indeed the legal father of another man’s child. Therefore, the Mississippi Supreme Court upheld the trial court’s finding that the husband was the “father-in-fact” and was “entitled to rights of custody, visitation, and the like”. Based on these cases, it is likely that Daniel could be found to be Trey’s father-in-fact. He has held Trey out to be his biological son for Trey’s entire life, he is intimately involved in the day to day activities of the children, Trey thinks of Daniel as his father, and it would not be in Trey’s best interests to terminate a loving relationship with the only father he has ever known, regardless of biology. Daniel has acted as Trey’s “father” in every conceivable way and, as such, has a viable argument that he should be entitled to the rights of custody or visitation.
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Entry 3: by Jonathan Burns
DATE: 10/31/08
TO: CRAIG ROBERTSON
FROM: JONATHAN BURNS
SUBJ: DANIEL TAYLOR
________________________________________
Mr. Robertson,
It is such a shame that I have to write to you today about this case before us. I cannot imagine how devastated your friend Mr. Taylor is at this time. On top of learning that his wife has been having an affair the entire time that they have been married, to be told that one of his children that he has been raising for the last five years may not in fact be his must be heartbreaking beyond compare. Mr. Taylor deserves to be commended for his desire to preserve his parental relationship with both children, regardless if Trey is in fact his biological or not. I am very excited to provide all the help that I can to Mr. Taylor and I do believe the law is on our side.
The court in Griffith v. Pell, 881 So.2d 184 (Miss. 2004), faced a similar situation to the one before us now. A couple was divorcing and it was determined through paternity testing that the husband was not the biological father of the child. Id. at 185. The Supreme Court of Mississippi in this case determined that a husband could be awarded some form of custody or visitation rights to a child that was determined not to be of his biological decent, where the, "husband had acted in loco parentis by assuming status and obligations of parent before and during the marriage. Id. at 184. A person who has acted as a parent without a formal adoption is a person acting in loco parentis. Id. The court further defines in loco parentis as, "any person who takes a child of another into his home and treats it as a member of his family, providing paternal supervision, support, and education, as if it were his own child." Id. This court also says that the best interest of the child should also be determined when deciding custody issues during divorce proceedings. Id. at 187. Who could dispute that a child that has been raised all of their life by what they believed to be there biological father would not have in its best interest to maintain a loving relationship with that parent. Upon remanding this case for a new hearing, the Supreme Court asserted that the chancellor should look to the Albright factors when determining what was in the best interest of the child. Id. at 188. A few of the Albright factors include the continuity of care prior to separation, moral fitness, and the emotional ties of the parent and child just to name a few.
This fairly recent case seems to supply a great amount of support for our cause here in the pursuit of justice. Mr. Taylor has acted in loco parentis just as Robert Pell did in the above-mentioned case.
Another court also determined that the best interest of the child involved in a custody case did not necessarily require the custodial or visitation rights to be restricted from a possible non-biological father. Thoms v. Thoms, 928 So.2d 852 (Miss. 2006). This court held that a, "chancellor was not required to find that genetic testing for paternity was in the best interest of a child." Id. at 852. This court reasoned similar to the court in Griffith that the best interests of the child may be accomplished by allowing the legal parent who has no biological relationship to the child to continue to be involved in the child's life as if he was a biological parent.
These two cases seem to shine some light upon our goal before us in helping Mr. Taylor maintain the relationship he has now with his two children regardless if he is the biological father to Trey or not. Mr. Taylor was acting in loco parentis which seems to be a qualifying act under Mississippi law to assert claims to child custody, visitation, or support.
Another court also following the doctrine of in loco parentis ended up awarding a husband primary physical custody of the child after considering the Albright factors as well. J.P.M. v. T.D.M., 932 So.2d 760 (Miss. 2006). This court stated that, "any person who takes a child of another into his home and treats it as a member of his family, providing parental supervision, support and education, as if it were his own is said to stand in loco parentis, for purposes of custody and child support." Id. This court also stated that a, "husband who held out child born during marriage as his own, who was listed as father on child's birth certificate, and who had provided support and affection for child all through her life, upon which support wife and child had relied, stood in loco parentis with respect to child, and thus, had standing to assert claims for custody, visitation, and support following determination that he was not child's biological father, in context of divorce." Id.
This court follows along with the other and with our case in reasoning that even though a father might not be the biological parent to the child, he still deserves, and can be awarded rights to custody or visitation by acting in loco parentis.
Another court might give us an additional means of attacking Cindy Taylor with the goal of attaining some form of custodial or visitation rights for Mr. Taylor. In a custody case involving the biological mother of a child and a third party, there is a presumption that it is in the best interest of the child to remain in the custody of the biological parent. Schonewitz v. Pack, 913 So.2d 416, (Miss. Ct. App. 2005). This court goes on to say that this presumption can be overcome by three different factors including the showing that the conduct of the parent is so immoral as to be detrimental to the child which seems applicable in our case. Id. The conduct of Cindy Taylor could quite possible qualify to rebut this presumption that it is in the best interest of the child to remain within the custody of the biological parent. Her affair with a guy that she knows from the gym that lasted the entire seven year span of her and Mr. Taylor's marriage certainly seems qualifying to me.
Legislation in the state of Mississippi also points to the recognition of the doctrine of in loco parentis. Mississippi Code Annotated § 93-5-24 recognizes the doctrine and cites to some of the above mentioned cases as well.
I believe that we have a strong case with Mr. Taylor in a legal sense and in a moral and justifiable sense as well. I hope that the information I have provided you in this memo Mr. Robertson will be of some benefit and I look forward to being able to assist you and Mr. Taylor in any way that I can.
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Entry 4: by Lori Johnson
MEMORANDUM
TO: Craig Robertson
FROM: Lori Johnson
DATE: October 31, 2008
RE: Daniel Taylor; Rights of the Legal Father in a Paternity Action
QUESTION PRESENTED
Whether Daniel Taylor’s parental right to custody of his minor child is terminated following a determination that he is not the biological father even though he has supported and cared for the child since birth.
BRIEF ANSWER
Daniel Taylor’s parental rights in regard to his minor child probably will not be terminated even if a paternity test excludes him as the biological father. Under the doctrine of in loco parentis, a person who acts as a parent assumes the status, rights, and obligations associated with parenthood. Therefore, determination that another man is the biological father does not necessarily negate the parent-child relationship formed between a child and his or her legal parent.
STATEMENT OF THE FACTS
Daniel Taylor and his wife Cindy have two children, Trey and Jasper, ages five and three. Cindy has admitted to having an affair with Chris Millsap during the course of the couple’s marriage. Additionally, Cindy suspects that the couple’s oldest son, Trey, is not Daniel’s biological child. The paternity of the couple’s second son, Jasper, is not in question. Daniel has loved and supported both of his children since birth and is involved in all aspects of their day-to-day lives. Chris Millsap, Trey’s suspected biological father, has demanded DNA testing to resolve the paternity question. Daniel seeks to preserve his parental relationship with both children in the event that Chris is determined to be the biological father.
DISUCSSION
The court must grant a motion by either party ordering genetic testing. Miss. Code Ann. § 93-9-21(2) (2008). However, determination of paternity in a third party does not necessarily terminate the legal father’s rights. Griffith v. Pell, 881 So. 2d 184, 186 (Miss. 2004). Under the doctrine of in loco parentis, a legal father who supports and cares for a child as if it were his own assumes the rights and obligations of parenthood. Logan v. Logan, 730 So. 2d 1124, 1126 (Miss. 1998). Therefore, he may overcome the presumption that it is in the child’s best interest to remain with his natural parents. Id. at 1125.
In Logan, the court awarded custody to a stepfather after applying the Albright factors and finding that the child’s biological mother was unfit. Id. The court reasoned that the presumption in favor awarding custody to a natural parent over a third party could be overcome when the biological parent was unfit by reason of immoral conduct, provided that the conduct adversely impacted the child. Id. at 1126. Additionally, if a natural parent is unfit, it is the court’s duty to award custody to an adult who stands in loco parentis. Id.
In Griffith, genetic testing proved that the husband was not the biological father of the couple’s minor child. 881 So. 2d at 185. The court overturned the chancellor’s holding that the exclusion of the husband as the biological father also terminated his rights to custody and visitation. Id. at 186. The court reasoned that because the legal father could be required to pay child support as a result of his continued support and care of the child, it followed that he could also be awarded custody and/or visitation rights. Id.
Daniel may argue that a determination that Chris is the biological father should not automatically negate the father-son relationship he has developed with Trey. Daniel loved and cared for Trey from birth. Additionally, he provided parental supervision, support, and education for Trey. As a result of his continuous care of Trey during the marriage, Daniel stands in loco parentis and has the same rights as a natural parent. Daniel may further assert that Cindy’s adultery renders her morally unfit and effectively rebuts the presumption in favor of awarding her custody as the natural parent.
Cindy may argue that, while she did commit adultery, her conduct did not adversely affect the children. Without a showing of adverse impact, she should retain the presumption favoring her as the child’s best custodian. Furthermore, custody decisions may not be based on sexual behavior alone. Instead, the court should consider her behavior under the Albright factor of moral fitness in conjunction with the other relevant factors.
The court will probably not terminate Daniel’s parental rights even if a paternity test excludes him as Trey’s biological father. Daniel loved and supported Trey as his own child, which entitles him to parental rights under Griffith. However, legal recognition of Daniel’s parental rights does not necessarily require that he be awarded custody or visitation. The court will still consider Trey’s best interests by applying the Albright factors. While Cindy’s adultery will be considered under the Albright factor of moral fitness, custody decisions may not be based on sexual behavior alone. Therefore, Daniel must prove that Cindy’s adultery had an adverse impact in the children.
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Entry 5: by Greta Kemp
To: M. Craig Robertson, Esq.
From: Greta L. Kemp
Date: October 31, 2008
Re: Preservation of Paternity in Mississippi
Question Presented
Under the Uniform Paternity Laws and reigning case law, does the client, Mr. Daniel Taylor, have paternal rights to the eldest child born to the marriage when there is a possibility Mr. Taylor is not the biological father pending DNA testing?
Brief Answer
Probably yes. Mississippi's paternity statutes specifically deals with establishing paternity and setting up support and offer little support with preservation of paternity. However, the Mississippi Supreme Court has consistently held that, while putative fathers a place in their child's lives, non-biological fathers, who have been held to be the father of the child, cannot be cut from the father-child relationship completely.
Discussion
Mr Taylor's situation presents an interesting dilemma which requires interpretation of both statutory language and the small amount of case law on this subject. Mississippi's answer to the “who's your daddy” predicament plaguing chancery courts lie in the Uniform Law on Paternity found in the Mississippi Code 93-9-1 through 93-9-49. However, while the statutes offer a glimmer of aid in establishing paternity, it does not specifically speak to a situation similar to Mr. Taylor's current position. Case law provides the insight needed to determine the probable resolution in preserving the paternity of the first child born to the marriage, Trey.
The first hurdle Mr. Taylor has to overcome is that Mr. Millsap is aware of the possibility of paternity regarding the eldest child. Based on his knowledge, Mr. Millsap is requesting that DNA be tested in order to establish paternity. Mr. Taylor and his wife have been married for several years and two children were born of the marriage. In Deer v. State Dept. of Public Welfare, it was established that there is a presumption that a child born in wedlock is the child of the husband and this is one of the strongest presumptions in law. Deer v. State Dept. of Public Welfare, 518 So.2d 249, 253 (Miss. 1987). This is a presumption which can be rebutted and can be overcome if the party that challenges paternity proves beyond a reasonable doubt that the husband is not the father. Ivy v. Harrington, 644 So.2d 1218, 1220 (Miss. 1994).
As discussed in both Thoms and Ivy, language provided in the Uniform Paternity Laws states that the court shall order genetic testing and any other testing on the alleged father, child, and mother on the motion of the plaintiff or defendant that can prove or disprove the probability of paternity. Thoms v. Thoms, 928 So.2d 852, 854 (Miss. 2006), citing Miss. Ann. Code 93-9-21(2) (2008). The term shall was further discussed as being a “mandatory directive” which gave the trial court no discretion which, in essence, means an automatic grant of a paternity motion. Ivy, 644 So.2d at 1221. Further, it is well established that a putative father does have standing to bring an action in establishing paternity. Karenina By Vronsky v. Presley, 526 So.2d 518, 522 (Miss. 1988). Therefore, with Mr. Taylor's wife admitting to an affair and Mr. Millsap requesting a paternity test, the courts are statutorily obligated to order testing of the putative father and the child.
Mr. Taylor does not reach his second obstacle until the testing is complete and Mr. Millsap is found to the be the biological father of the child. Once this has occurred, the primary concern of the client comes to fruition. The Uniform Paternity Laws do not offer much aid as to the preservation of paternity per se, however, this issue has been before the Mississippi Supreme Court for distinguishing the rights of the biological father and non-biological father. However, as mentioned in Judge Griffis' dissent in Griffith v. Pell, Mississippi law does not provide for “dual fatherhood.” Griffith v. Pell, 881 So.2d 227.
Prior case law regarding preservation of paternity does tend to favor fathers who are ruled out as possible biological fathers. The courts take into account the past history of the non-biological father and the child when determining paternity rights. Yet, the Rafferty Court held that when scientific evidence shows one man to be the father of a child, this establishes paternity. Rafferty v. Perkins, 757 So.2d 992, 996 (Miss. 2000). The well-known decision in Griffith goes a little further by, in essence, holding that once paternity is established, the goal of the paternity proceeding has been satisfied. Griffith v. Pell, 881 So.2d 227. Paternity suits have one goal: to establish correct paternity, not to decide whether the non-biological father's custody and visitation rights.
Once Mr. Taylor has been excluded as a possibility of being Trey's biological father, the courts have previously considered a concept known as “in loco parentis” which is provided in Mississippi statutory law. As previously stated, Griffith is leading case authority in preservation of paternity cases, however, in a case before the Mississippi Supreme Court three years later, Griffith was validated and the Court allowed a concept not considered in prior Mississippi cases. In J.P.M. v. T.D.M., the equitable fatherhood doctrine was used by a chancellor in determining that a non-biological father did have custody and visitation rights to a child he had considered to be his own. J.P.M. v. T.D.M., 932 So.2d 760 (Miss. 2006). The chancery court, citing a recent determination by the Supreme Court of Iowa, stated that equitable parenthood could be established if the father could show that: 1) he was married to the child's mother at the time of conception and birth, 2) he reasonably believes that he is the child's father, 3) he has established a parental relationship with the child, and 4) judicial recognition that the relationship is in the child's best interest. Id; Gallagher v. Gallagher, 539 N.W.2d 479 (Iowa 1995). Further, the chancery court continued by also concluding that this new doctrine is “consistent with the principles of equitable estoppel.”
There is a fundamental difference in the aforementioned J.P.M. and Rafferty cases which is the fact that, in the latter case, there is an alleged father wanting to be tested to assume his role as father. The Mississippi Supreme Court in considering the appeal did not overrule the chancellor's use of the equitable fatherhood doctrine, just refused to adopt the doctrine in general. The Court also stated that in prior cases it had already been determined that just because biology excludes a man as a child's father, the relationship still exists. Griffith, 881 So.2d at 185. Griffith, as in the instant case, also dealt with two possible fathers wanting to assume the role of the child's father. By paralleling the Griffith case with the facts of J.P.M., it can only be assumed that the relationship and possible rights of the non-biological father should not change just because there is a biological father waiting in the wings.
Courts have also considered “in loco parentis”, which was subsequently applied in place of the equitable parenthood doctrine considering the lack of putative father. This concept is usually the controlling application when a third party seeks to gain custody from a natural parent. The third party must show that the natural parent abandoned the child, the parent's behavior is immoral, or the parent is mentally or physically unfit. J.P.M., 932 So.2d at 760. However, in the instant facts, this doctrine would not be favorable as it would be hard to establish one of the three elements required in order to apply this doctrine.
Trey has only known one father throughout his five years and that is Mr. Taylor and, seeing as they were married, it is clear that Mr. Taylor is listed as Trey's father on his birth certificate. Mississippi courts are reluctant to completely separate a child from the only father he has known. While Mr. Millsap will likely be tested and possibly determined as the child's biological father, Mr. Taylor does have rights as the “father in fact” in this situation. Upon considering courses of action, it has been established in many cases, namely Griffith, that the custody and visitation issues are not determined in a paternity action. Therefore, it must be determined in the divorce proceeding of Mr. Taylor and his wife. Using the “best interests of the child” standard, Mississippi courts are likely to determine that Mr. Taylor should be allowed access to what is and always should be considered his son.
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Entry 6: by Courtney McAlexander
MEMORANDUM
TO: Craig Robertson
FROM: Courtney McAlexander
DATE: October 31, 2008
RE: Daniel Taylor, paternity issue______________
QUESTION PRESENTED
What is the law in Mississippi concerning paternity disputes involving a presumed father and a non-parent who may be the biological father of a child? What are Daniel Taylor’s possible courses of action regarding the paternity and custody of his five year old son?
BRIEF ANSWER
Mississippi courts have stated that while biology is a factor in determining parental rights and responsibilities, any person who acts, or “stands in,” as a parent to a child for a significant period of time can be awarded parental rights and responsibilities when doing so is in the best interest of the child.
Taylor has several avenues to pursue as the presumed father of his son. First, although it may be fruitless, we as Taylor’s counsel could attempt to negotiate with Chris Millsap in order to avoid court ordered paternity testing. This might include allowing Millsap extremely limited visitation with the child in exchange for his agreement not to pursue the paternity testing.
Even if such negotiations are ultimately unsuccessful and subsequent court ordered paternity testing reveals that Millsap is the biological father, Taylor still has a strong case for paternity rights in his situation. The Mississippi Supreme Court has determined that when a father acts as a biological parent, the court is free to award the father the rights and responsibilities of a biological father if doing so is in the best interest of the child. Taylor has a strong argument that awarding him full parental rights is in the best interest of his son.
DISCUSSION
As stated above, Taylor’s best option is to attempt to deter Millsap from petitioning the court for a Determination of Paternity. Avoiding the court’s intervention would assure that Taylor’s son would not be negatively affected by the issuance of a paternity test.
However, if Millsap does decide to file suit and petition the court to order paternity testing, the court must order the testing pursuant to Miss. Code Ann. § 93-9-21(2). The statute states that a court “on its own motion or on motion of the plaintiff or the defendant, shall order the mother, the alleged father and the child or children to submit to genetic tests and any other tests which reasonably prove or disprove the probability of paternity.” Miss. Code Ann. § 93-9-21(2). In Ivy v. Harrington, the Mississippi Supreme Court ruled that the word “shall” is a mandatory directive, and thus a motion for paternity must be granted by the court. Ivy, 644 So.2d 1218, 1221 (Miss. 1994).
Furthermore, the Mississippi Supreme Court stated in Thoms v. Thoms that there was no authority to support the contention that a determination of the child’s best interest must be made before the genetic testing is ordered. Thoms, 928 So.2d 852 (Miss. 2006). The court concluded that since § 93-9-21(2) requires courts to order generic testing if a party requests it, “notwithstanding good arguments on the contrary in this situation, the trial court and this Court must follow the mandate of this legislature.” Id. Therefore, even if we are able to make a compelling case against paternity testing in Taylor’s case, there is little chance the court will rule contrary to a “mandate of the legislature.” Id.
Still, Taylor’s paternal rights should not be affected even if genetic testing is ordered and it is determined that Taylor is not the biological father of his son. In Logan v. Logan, the Mississippi Supreme Court stated that “any person who takes a child of another into his home and treats it as a member of his family, providing parental supervision, support and education, as if it were his own child is said to stand [in loco parentis].” Logan, 730 So.2d 1124, 1126 (Miss. 1998) (quoting W.R. Fairchild Constr. Co. v. Owens, 224 So.2d 571,575 (Miss. 1969)).
Several years later, in Griffith v. Pell, the Mississippi Supreme Court reapplied the “in loco parentis” doctrine in the case of a father who, paternity tests revealed, was not the biological father of his child. Griffith, 881 So.2d 184 (Miss. 2004). Reversing the lower court’s ruling that the paternity results eliminated the father’s rights of custody or visitation, the Mississippi Supreme Court ruled that “under Logan, because [the father] supported and cared for the minor child as if she were his own natural child […] he may be awarded custody and / or visitation rights with the minor child.” Id. at 187. The court also cited courts in other states, such as the Wisconsin Supreme Court which held that even if a third party is determined to be the biological father, “the biological father does not have any paternity rights if he fails to establish that he had a substantial relationship with the child.” Id. (citing A.J. v. I.J., 677 N.W.2d 630,642 (2004)). Finally, the court stated that on remand, the court should “make a full on-the-record discussion of the application of the Albright factors” in it’s determination of what would be in the best interests of the child. Id. at 188 (citing Albright v. Albright, 437 So.2d 1003, 1004-5 (Miss. 1983)).
Under Griffith, Taylor has a strong case for retaining his paternity rights. He has acted “in loco parentis” since his son’s birth, and should therefore be awarded full paternity rights. Furthermore, Taylor has a much stronger case under a discussion of the Albright factors since he raised his son and was extremely active in his everyday life. Lastly, although it is not binding on any Mississippi courts, the Wisconsin decision which was included in Griffith could help pursue Mississippi courts to disallow any paternity rights for third parties that have had no relationship with the child, which is the case in Millsap’s situation.
CONCLUSION
In conclusion, even if our efforts to stop Millsap from demanding paternity testing are unsuccessful and it is determined that Taylor is not the biological father; it is extremely likely that Taylor will retain all of his paternal rights. After analyzing the Albright factors and what is in the best interest of the child, a court would likely determine that Taylor should retain his paternal rights. Taylor’s ultimate goal to preserve his parental relationship with his children and have their lives remain as normal as possible is certainly attainable under current Mississippi law.
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Entry 7: by Katy Braden
TO: Craig Robertson
FROM: Katy Braden
DATE: October 28, 2008
RE: Paternity proceedings, putative father
QUESTION PRESENTED
Under the Mississippi common law, does a putative father maintain any legal rights to the child he raised as his own when that child is later discovered to have a different natural father as a result of an extramarital affair?
BRIEF ANSWER
Probably yes. In Mississippi, the husband is presumed to be the putative father when a child is born during the marriage relationship. When the husband created a parent child relationship based on the belief that he was the biological father, he will likely retain some legal rights to the child. However, the court can allow any other possible fathers to obtain a paternity test.
STATEMENT OF FACTS
Daniel Taylor has been married to Cindy for 7 years and has two sons who are 5 and 3. Taylor has been unaware of his wife’s extramarital affair until recently. The affair with Chris Millsap, a friend from the gym, began shortly after their they were married. Cindy informed Daniel that their oldest son, Trey, may be a result of the affair. Daniel and Cindy are divorcing and Chris is demanding a paternity test. Even if Trey is discovered not to be his biological son, Daniel wants to preserve a parent child relationship with his presumed son. Our client, Daniel Taylor, does not have a lot of money, so our goal is to preserve his relationship with his son without putting him into financial stress.
DISCUSSION
Just because the alleged father is discovered not to be the father does not mean that the he is denied rights to custody or visitation with the child he raised as his own. Gfiffith v. Pell, 881 So. 2d 184, 186 (2004). In custody proceedings, courts focus not only on biological relationships, but also on an enduring connection formed between the parent and child. Id. at 186-87, n.4. Clearly, the facts establish that after five years living in the same home as Daniel Taylor, Trey has formed a relationship with Daniel that extends past a mere biological connection. Daniel has provided for his presumed son’s emotional and physical needs in the same way a father would. If you were to ask Trey Taylor who his father was, his simple five year old answer would not include legalese or biological terms. According to Trey, his father is Daniel Taylor, the man who raised him. The court in Griffith viewed the father child relationship in the same simple way that a five year old would – the determining connection is based on a relationship, not biology.
Additionally, just like any other custody case involving third parties, the Court may examine relationships with the minor children that are in loco parentis. Griffith, 881 So. 2d at 187. The standard applied in custody proceedings including third parties is the “best interest of the child” test. Id. Clearly, Daniel Taylor did not know he was acting in loco parentis, but by taking on the financial, educational, and emotional responsibility to raise Trey, he has acted in the spot of a parent. Therefore, a court would normally give consideration to a third party acting as a parent, or on behalf of the parent, in favor of the child. The possible biological father in this situation has not once acted as a father to Trey, so Daniel Taylor might have acted on behalf of the father and in a better manner than the biological father, showing that his actions were in the best interest of the child.
In Thoms v. Thoms, the court examined the language in the Mississippi code dealing with paternity testing which said, “the court, on its own motion or on motion of the plaintiff or defendant, shall order the mother, the alleged father and the child or children to submit to genetic tests and any other tests which reasonably prove or disprove the probability of paternity.” Miss Code Ann. § 93-9-219(2) (1999) (examined in Thoms, 928 So. 2d 852, 854 (2006)). The Mississippi Supreme Court interpreted the word “shall” to be a mandate from the court that motions for paternity testing should be granted, despite what opposite parties might argue is or is not the best interest of the child. 928 So. 2d 852 at 854-55. However, the Court held that the alleged father did not have to pay for a paternity test. Id. Additionally, the legislature passed a statute in the past year that held that the alleged father has the rebuttable presumption of paternity, which can only be rebutted by preponderance of the evidence if the probability of paternity is 98% of greater. Miss. Code Ann. 93-9-27 (2008). However, there is no right to jury trial in a paternity proceeding. Id. Daniel Taylor cannot prevent Chris Millsap from conducting paternity tests, but he does not have to use his own money to have a paternity test conducted. The client, who has a tight budget, should be informed that although he cannot prevent Chris Millsap from conducting testing, he has the privilege of not conducting his own.
Finally, the Griffith case also established that paternity tests are only about biology, so a custody proceeding and not a paternity proceeding, is the best option for determining the best interest of the child. See generally Griffith, 881 So.2d 184 (2004). Therefore, whatever the paternity test proves, the proceeding will not be used as a proceeding to terminate Daniel Taylor’s rights. If he is proven not to be the father, he can argue at the custody proceedings that he has acted in the best interest of the child.
CONCLUSION
If it is determined that Trey is not Daniel’s son, the court will still most likely award visitation and possibly even custody to the alleged father. Although he may not be the biological father, he has established a relationship with Trey Taylor. The possible father, Chris Millsap, has established no such relationship. If the paternity tests reveal a greater than 98% probability that Chris Millsap is Trey’s father, there will be a paternity proceeding, but no expensive jury trial. Daniel Taylor does not have to pay for paternity proceedings, but will have to hire an attorney for custody proceedings where the best interest of the child will be determined. However, due to his established relationship with Trey, the court is likely to grant some rights to Daniel Taylor even if he is not the child’s father.
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Entry 8: by Megan Hoggard
MEMORANDUM
TO: Craig Robertson
FROM: Megan Hoggard
DATE: October 31, 2008
ISSUE: Preservation of Parental Rights
QUESTION PRESENTED
Daniel Taylor and his high school sweetheart, Cindy, are married and have two children Trey and Jasper. Daniel has just discovered that Cindy has been involved in a long-term affair with Chris Millsap and the affair spans the life of Daniel and Cindy’s marriage. Due to the span of the affair, Cindy has informed Daniel of the possibility that Trey, who was born two years after the marriage, might not be his son. She is certain that Jasper, however, is Daniel’s son. Daniel is a great husband and father and although devastated, wants to preserve his parental relationship with both children. Daniel has been informed that Chris knows about the possibility that Trey is his child and is demanding a paternity test “so that everyone will know the ‘truth’ once and for all.” If Daniel Taylor turns out not to be the biological father of his oldest son, Trey, can Daniel preserve his parental rights under current Mississippi law?
DISCUSSION
Under current Mississippi law a paternity action may be initiated by a child, a public authority charged with the child’s support, the child’s mother or the child’s legal or biological father. Miss. Code Ann. § 93-9-9 (2004). Therefore, both Daniel and Chris have standing to initiate a paternity action for Trey. In Mississippi, the presumption of legitimacy, that a child born during marriage is the child of the married couple, is one of the strongest presumptions known to our law. Bell on Family Law. However, this presumption may be rebutted by proof beyond a reasonable doubt that a child was fathered by another. Id. Due to modern technology this presumption can be rebutted through the use of genetic tests and Mississippi requires a ninety-eight percent or greater possibility of paternity. Miss. Code Ann. § 93-9-27(2) (2004). Also, because cost is an issue to Daniel, he should petition the court to hold Chris responsible for all court costs and test fees associated with the paternity action. In R.E. v. C.E.W., 752 So.2d 1019, 1027 (Miss. 1999), which was a suit brought by a presumed father against a biological father, the court properly ordered the biological father to pay attorney’s fees incurred by the presumed father in prosecuting the suit.
Although Mississippi’s case law is limited with regard to suits where a biological father seeks to disestablish a legal or presumed father’s paternity against his wishes, two cases lend help in determining Daniel’s possible recourse. These types of conflicts often pose a nature versus nurture argument. In Griffith v. Pell, the Court held that courts should proceed to determine paternity but that custody and support between the biological father and the legal or presumed father should be determined in a separate action based on the child’s best interest. 881 So.2d 184, 187 (Miss. 2004). The Court in Griffith also held that a determination of paternity in a third party does not require termination of the legal or presumed father’s rights, noting that “merely because another man was determined to be the minor child’s biological father does not automatically negate the father daughter relationship.” Id. at 186. The Court relied on the doctrine of in loco parentis, under which a person who assumes the status and obligations of a parent may be awarded custody or visitation. Id. The also noted that “parental rights do not spring full-blown from the biological connection between parent and child. They require relationships more enduring.” Id. Thus it seems that the Court, where plausible, is willing to weigh more in favor of nurture and de-emphasize the importance of biology in situations where the legal father wants to retain parental rights. Although the facts in Griffith may be distinguishable from our case (depending on whether Chris wants custody and parental rights) because the biological father wanted to terminate his parental rights, it still seems to present the best argument’s for preservation of Daniel’s parental rights.
The Thoms case also suggests a possible course of action for Daniel. Thoms similarly deals with paternity action involving a biological father and a legal or presumed father where the presumed husband, Rusty, learned that his wife was having an affair with Hank and that one of the children he had been raising as his own might be Hanks biological child. Thoms v. Thoms, 928 So.2d 852 (Miss. 2006). Rusty brought an interlocutory appeal claiming the trial court erred for several reasons, including entering the order for genetic testing without first making a determination of the best interests of the child and failing to apply the doctrines of clean hands, laches, and equitable estoppel to bar the biological father’s request for genetic testing. Id. at 853-54. However, the Court determined all that is necessary under Mississippi law in a paternity suit is for either the plaintiff or defendant to move for a test to be done, regardless of whether the paternity test was in the child’s best interest. Id. at 855. Because the Court affirmed the trial court on this first issue based on statutory grounds, it did not address the issue raised regarding clean hands, laches or equitable estoppel. Id. But the Court noted that these issues, in a different context and different arena, will be appropriate for consideration by the trial court after receiving the results of the genetic testing. Id.
So based on current Mississippi law, it seems that the trial court will most likely grant a paternity test. However, once paternity is established, if Daniel turns out not to be Trey’s father, he has several possible courses of action to pursue. He can first seek a separate action for custody, arguing that it would be in Trey’s best interest to remain with Daniel because Daniel is the man who has raised Trey and he is the only father Trey has ever known. Cindy, Daniel and Jasper are Trey’s family and to take a five year old little boy away from the only family he has known could have serious psychological effects on the child. Daniel should also have a very strong argument for preservation of his parental rights under the doctrine of in loco parentis because he has assumed the role and obligations as Trey’s father. And even if he is not able to retain sole custody of Trey, based on the reasoning in Griffith and the doctrine of in loco parentis, Daniel may be able to attain visitation rights.
Conversely, Chris should have had knowledge, because of the on-going affair, of the possibility that Trey was his son when he was born, so why has he waited five years to initiate a paternity suit? And because Chris had knowledge but did not attempt to make a connection or relationship with Trey until now, he should thus be barred or estopped from claiming parental rights even if he is the child’s biological father. And based on the Court’s finding in Thoms, Daniel may be able to assert a defense using the doctrines of clean hands, laches, and equitable estoppel to bar any parental or custody claims that Chris might bring once paternity is established.
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Entry 9: by Megan Black
Memorandum
TO: Lori Gray, Craig Robertson
FROM: Megan Black
DATE: 10/31/08
RE: Daniel Taylor
Issue Statement
Daniel Taylor recently discovered that he might not be the biological father of his oldest son, Trey, after discovering his wife’s long-term affair with Chris Millsap. Chris seeks a paternity test and Daniel seeks to preserve the parental rights of both Trey and Jasper, the couple’s three-year-old daughter.
Brief Answer
Mr. Taylor should submit to the paternity test to determine if he is the biological as well as legal father of Trey. Whether he is the biological and legal father or just the legal father, an application of the Albright factors will show that it is in Trey’s best interests, as well as Jasper’s, to award custody or visitation to Mr. Taylor should the couple divorce.
Discussion
The Mississippi Supreme Court has stated that finding another man to be the biological father does not negate a father-child relationship. Griffith v. Pell, 881 So. 2d 184, 186 (Miss. 2004). A person acting in loco parentis assumes the status and obligations of a parent without formal adoption. Id at 186. In loco parentis entails treating a child as a member of the family and providing parental support. Id. Parental status depends on an actual relationship with the child in providing emotional and financial needs. Id at 186-87. The constitutionally protected interest in companionship, care, and custody of children is afforded persons meeting this parental status even when the person is not the biological parent. Id. The Griffith Court found the husband should have visitation or custody even though he was not the biological father. Id.
Paternity actions are separate from custody actions. Id at 188. Custody actions follow a paternity determination and analyze what is in the best interests of the child. Id. The “best interests of the child” test requires an application of the Albright factors. Albright v. Albright, 437 So. 2d 1003 (Miss. 1983). The Albright factors include the following:
"Age should carry no greater weight than other factors to be considered, such as: health, and sex of the child; a determination of the parent that has had the continuity of care prior to the separation; which has the best parenting skills and which has the willingness and capacity to provide primary child care; the employment of the parent and responsibilities of that employment; physical and mental health and age of the parents; emotional ties of parent and child; moral fitness of parents; the home, school and community record of the child; the preference of the child at the age sufficient to express a preference by law; stability of home environment and employment of each parent, and other factors relevant to the parent-child relationship." Id at 1004.
Mr. Taylor is a unique position. He does not have the money or time to litigate issues that may not find in his favor. If Mr. Taylor chooses to reconcile with Cindy, then his ability to see the children will not be a problem. However, should divorce follow, which is most likely, then Mr. Taylor should argue the doctrine of in loco parentis and show how he has provided as the legal father to both Trey and Jasper. Mr. Taylor should also save money by not fighting the paternity action and consenting to a paternity test. Even though the presumption in Mississippi finds that a child born during wedlock is the biological child of the husband, the court might decide there is enough evidence resulting from Cindy’s affair that a paternity test should ensue. The strongest tool at Mr. Taylor’s disposal is the parental relationship and support he has provided for Trey and Jasper. A strong argument is made that it is in the best interests of both children to have the same custody and visitation between the parents. In Mississippi, there is a strong preference to keep siblings together unless something unusual justifies their separation. Sellers v. Sellers, 639 So. 2d 481, 484 (Miss. 1994). It is important to note that the paternity test could show that Mr. Taylor is the biological as well as legal father of Trey. However, if not, Mr. Taylor will show it is in the best interests of Trey to continue a father-child relationship with him.
Mr. Taylor is the most stable parent and form of support in the children’s life. He married his high school sweetheart and has been loyal to her. He loves both children equally and wants to continue a parental relationship regardless of whether he is the actual biological father of Trey. In contrast, his wife has lied for the entirety of the marriage and has hurt the family stability with her adulterous behavior. Chris Millsap has known that Trey might be his child and has only brought the paternity action now. This implies that both Chris and Cindy realize Mr. Taylor is a better and more able parent. The adulterous partners have encouraged the presumption that the children born in wedlock are the biological children of the husband. Additionally, children of such a young age are very impressionable and tearing them from the stability that Mr. Taylor provides could be devastating mentally, physically, and emotionally. The bond that Mr. Taylor has formed with the children is the only genuine relationship the children know and understand, forming as a result of both Cindy and Chris. As both have encouraged the children to form this bond by lying or not coming forward earlier, neither party should be entitled to deny custody to Mr. Taylor. In each Albright factor, Mr. Taylor proves the most able parent.
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Entry 10: by Ryan Canon
LEGAL MEMORANDUM
To: Craig Robertson
From: Ryan Canon
Date: October 31, 2008
Re: Paternity of Trey Taylor
ISSUE
WHETHER CHRIS MILLSAP MAY INSIST ON A PATERNITY TEST AND, IF SO, WHETHER DANIEL TAYLOR MAY RETAIN HIS PARENTAL RIGHTS IN THE EVENT MILLSAP PROVES HE IS THE NATURAL FATHER OF TREY
BRIEF ANSWER
Chris Millsap may ask the court for a paternity test to determine whether he is Trey’s father. However, in the event Millsap proves he is the natural father of Trey, Daniel Taylor may petition the court for an order maintaining his parental rights under the doctrine of in loco parentis.
ANALYSIS
I. WHETHER CHRIS MILLSAP MAY INSIST ON A PATERNITY TEST
One of the strongest presumptions in law is that a child born during wedlock is presumed to be the child of the husband absent a showing of proof beyond a reasonable doubt of the opposite. Karenina v. Presley, 526 So.2d 518, 523 (Miss.1988), Williams v. Williams, 843 So.2d 720 (Miss. 2003). Since this is a rebuttable presumption, a putative father has the legal right to bring a paternity action. Rafferty v. Perkins, 757 So.2d 992 (Miss.2000), W.H.W., Jr. v. J.J., 735 So.2d 990 (Miss.1999). When a paternity action is brought, “the court, on its own motion or on motion of the plaintiff or the defendant, shall order the mother, the alleged father and the child or children to submit to genetic tests and any other tests which reasonably prove or disprove the probability of paternity.” Miss. Code Ann. § 93-9-21(2).
In the context of a paternity action, the trial court has no discretion to decline to order paternity testing and any party who either refuses to submit to testing or to seek to have the court order reconsidered or voided is causing an unwarranted delay in the proceedings. Baker v. Williams, 503 So.2d 249, 253 (Miss. 1987).
Notably, however, paternity suits are only intended to decide issues of biology and support, not custody. Griffith v. Pell, 881 So.2d 184 (Miss. 2004). Furthermore, once paternity is established, Mississippi law allows for the back payment of a year of child support and the father is liable to the same extent as the father of a child born in wedlock for the education, necessary support and maintenance and medical expenses of the child. Miss. Code Ann. § 93-9-11 (2004). The Mississippi legislature has a proposal to change the existing law of paternity wherein they state “any action brought under this chapter to establish paternity shall be brought on or before the day the child who is the subject of the action is of the age of eighteen (18) months or be forever barred.” 2008 MS S.B. 2082 § 1 (Jan 14, 2008)
Should the proposed legislation pass, Millsap will not have the ability to challenge the paternity of Trey Taylor. In the alternative, pursuant to the Court’s holding in Griffith, Millsap must bring a paternity action in order to be adjudged the natural father. However, finding that he is the natural father of Trey will not necessarily result in the deprivation of Taylor’s parental rights because paternity suits only decide issues of biology and support, not custody. Parental rights will then be determined based on a consideration of what is in the best interest of Trey. Thus, even if Millsap proves he is Trey’s biological father, he must bring a separate custody action if he wants to challenge Taylor’s presumptive right to legal and physical custody. With the newfound paternity, child support obligations will likely ensue.
II. WHETHER DANIEL TAYLOR MAY RETAIN HIS PARENTAL RIGHTS IN THE EVENT THAT MILLSAPS INITIATES A CUSTODY ACTION
The Mississippi Supreme Court held that “merely because another man was determined to be the minor child's biological father does not automatically negate the father-daughter relationship held by [the husband] and the minor child. Pell, 881 So.2d at 186. The Court also held that “any person who takes a child of another into his home and treats it as a member of his family, providing parental supervision, support and education, as if it were his own child is said to stand [in loco parentis].” Logan v. Logan, 730 So.2d 1124, 1126 (Miss.1998); (quoting W.R. Fairchild Constr. Co. v. Owens, 224 So.2d 571,575 (Miss.1969)). Furthermore, a person acting in loco parentis is one who has assumed the status and obligations of a parent without a formal adoption. Logan, 730 So.2d at 1126.
The best interest of the child standard is to be applied when determining custody issues and although a natural parent is entitled to custody of a minor child, there are circumstances under which that entitlement may be set aside in favor of a third party, including stepparent. Pell, 881 So.2d at 187. In making its decision, the chancery court shall make a full on-the-record discussion of the application of the Albright factors. See Albright v. Albright, 437 So. 2d 1003 (Miss.1983).
Importantly, the Court favors keeping siblings together absent a showing that this is somehow harmful. (McWhirter v. McWhirter, 811 So. 2d. 397 (Miss. Ct. App. 2001). Mississippi courts also lend greater weight to the continuity of care. Moak v. Moak, 631 So. 2d 196 (Miss. 1994).
Based on the relevant case holdings outlined above, it appears that the Mississippi Supreme Court prefers keeping the current family intact and not disturbing the existing dependability and stability where a child currently resides. Taylor has provided a stable and loving home for Trey and his actions have been consistent with standard set forth in Logan for establishing parental rights in keeping with the doctrine of in loco parentis. On the surface, the presumption and continuity of care would lead one to believe that Taylor would likely be successful in a custody suit if one is filed. Should this suit be brought, a more thorough analysis of the Albright factors would be needed.
CONCLUSION
Based on the preceding analysis, it is likely that the court would grant full custody to both Taylor and his wife. It is possible that the Court would allow visitation by Millsap should he so desire. But, it is almost inconceivable that the Court would ever award Millsap anything other than visitation rights with the outside possibility of something more. However, should this issue be pressed, more research would be necessary.
Under the facts you have given me, Millsap’s intentions with respect to Trey are not clear but, in the event paternity is proven, Millsap will be confronted with the proposition of back and future child support. Under these circumstances, he might be convinced to terminate his parental rights, thereby permitting Taylor to adopt Trey as his own son. If this appears to be a viable scenario, additional research will also be required.
Lastly, in the event the proposed legislation does pass, Millsap may not bring the paternity action as he is outside of the allowed period to bring the suit since Trey is now five years old.
