Friday, February 12, 2016

Three's A Crowd

McGee v. Gonyo2016 VT 8

By Thomas M. Kester

As a youngster, my daytime guilty pleasure was watching Jerry Springer and Maury Povich and the sensational, drama-fueled parental-DNA-testing pronouncements. I was always on the edge of the couch when the hush of the audience came on . . . as the envelope is torn open . . . the emphasis on “you ARE” and “you are NOT” the father rings out as the camera narrows in on the man’s face, and the audible gasping and cheering and bleeping that follows (“Jerry! Jerry! Jerry!#%&@*$!!!”). You would always hear the audience cheer when the man (although not the father) wanted to still remain in the child’s life and raise the child. So . . . is blood thicker than water?1 Can someone claim to be your biological parent without having a biological connection?

In May 2011, a baby girl was born. Plaintiff (mother) and Defendant (father) in June 2011 filed a Voluntary Acknowledgement of Parentage (“VAP”) with Department of Human Services (“DHS”). They both ascribed and swore that they were the “biological parents of the child” and the child’s birth certificate named both parties as the parents.

In 2012, the parties separated. Then, in October 2013, Office of Child Support (“OCS”) filed a Complaint for Support and Recovery of Debt, along with a “Motion for Genetic Testing Despite Parentage Presumption.” Specifically, OCS stated “there were grounds to believe that defendant was not the biological father based on mother’s affidavit naming another individual as the biological father, and stating that she was already fourteen weeks pregnant when she and defendant got together.”

Here is the twist: Defendant filed a subsequent parentage action and “acknowledged that he was not the child’s biological father and was aware of this when he signed the VAP.” Wait, what? I had to re-read that sentence two or three times before it set in what had been done. He had sworn to being the biological father even while knowing he was not the biological father, and now asked the court to label him the biological parent. To nobody’s surprise, the results of the court-ordered genetic testing came back and Defendant was not the father. Plaintiff filed in response and the “court issued a summary ‘order of non-parentage’ based on the genetic test,” dismissed Defendant’s parentage action, and closed the case. Defendant filed a motion to reconsider, OCS moved to reopen as well, and the court agreed to hear them out.

Defendant and Plaintiff both testified at this hearing. Plaintiff sought to “rescind the VAP . . . [as] to afford the biological father an opportunity to become more involved with the child, an opportunity he had not thus far pursued.” OCS argued “fraud upon the court,” as VAPs are about biological parentage and Defendant is not the father, thus the VAP should be set aside. The court agrees with OCS, stating that (1) “defendant lacked standing to bring a parentage action because he is not the “natural parent” of the child” and (2) “VAP was ineffective to establish parentage because defendant is not a ‘biological’ parent of the child.” Defendant appealed.

I can only imagine oral arguments were like that scene in Kindergarten Cop, where Arnold asks the children, “Who is your daddy and what does he do?” In Vermont, a presumption of parentage may be established under the Parentage Proceedings Act and the VAP is one of those methods. The SCOV explains that a VAP is a loaded-gun of parental rights (sign on the dotted line to have a living being who kind of looks like you (but challenges everything you tell them to do) be your legal responsibility for the next eighteen years).

The VAP doesn't recognize the father "until parentage has been legally established." It cautions neither parent to sign the VAP if he or she has any "doubt about the father’s identity"; and it confirms that, by signing, ‘both parents accept the legal rights and responsibilities that come with being a parent.’”

The SCOV also points to other courts treating VAPs as effectively operating as judgments that can be later overturned by paternity tests. Collusion on the part of the parties can allow courts to put aside the legal determination as a “fraud on the court.” Then, the SCOV discusses some cases where people were trying to circumvent the efforts of adoption through fraudulent VAPs in other states. The SCOV examines the facts and says (not actually) “our fact pattern looks like their fact patterns” and sees that the Plaintiff and Defendant were trying to take certain people (“the child, the biological father, and the State as parens patriae”) away from having their voice heard in court. Further, “fraud upon the court” is appropriate in this case to set aside the VAP because both parties (and not just one) knew that Defendant was not the father.

Justice Dooley concurs, but emphasizes the child-support-heavy aspect of the referenced statute in this case. He opines, “The continuing failure to enact a real parentage act is the largest and most significant deficiency in our statutory scheme regulating the rights and responsibilities of family members where the interests of children are involved.” Justice Dooley notes,“This case is another example of the consequences of that failure” and “urge[s] the Legislature to meet this critical need.”

Justice Robinson dissents, presenting arguments as to why the majority’s application of case law is misplaced. She espouses the idea that the “the loss to child of the added security of having two parents responsible for her care and support is distressing” and how (if the non-biological father was the sole caregiver of the child) the mother “could nonetheless unilaterally take action to sever his parent-child relationship to accommodate a new partner in her life.”

On the flip side, the non-biological father could also sever ties if “he won the lottery and wanted to avoid paying increased child support” (as the saying goes: “money cannot buy you happiness…unless you hit the Powerball, walk away from your kids, don’t have to pay child support, and move to Miami—then that’s total bliss”). Justice Robinson also argues that the mother is acting on the biological father’s behalf and shouldn’t be able to do that. Then Justice Robinson compares this case to another where mother represented that father was the actual father (but really wasn’t) and how the “fraud on the court” argument failed. To disavow parentage when it comes to light that a party is not biologically-related without taking into consideration the best interests of the child is, to Justice Robinson, not cool.

The real question is not “who qualifies as a legal parent under our laws,” but rather “the finality of parentage judgments.” This case may also have a far-reaching impact in Vermont as “Almost thirty percent of the children born in Vermont since 1997 have had their parenthood established by a VAP.” Robinson believes the non-biological father ought to have a hearing about establishing parentage. Finally, she backs up Dooley in his address to the legislature and the need for updated legislation.

As an aside, I happen to remember that (according to the Gospels of Matthew (1:18-25) and Luke (2:1-7)) there was a couple who, back in the day, also had a similar factual situation (albeit under different divine circumstances) to the parties in this case. Until the legislature takes action on reforming parentage laws in Vermont, similar questions in this legal arena may have to be boiled down to: “WWSCOVD.”


1 Technically yes, as the density for blood is ~1060 kg/m3 versus 992.2-1000 kg/m3 for water (depending on temperature).

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