Opinion
No. 91DV0018.
Decided April 3, 1992.
Daniel D. Marshall, for plaintiff Beverly A. Riddle.
Priscilla L. Hax, for defendant Bruce Riddle.
Donald G. Luce, for defendant Rocky Forney.
James F. Stevenson, for defendants Homer and Betty Riddle.
This matter is before the court on the plaintiff's objections filed to the referee's report and the memorandums of all other interested parties in opposition to plaintiff's objections.
Plaintiff's objections basically follow a two-pronged approach, the first being that the referee erred in concluding that there are conflicting presumptions of paternity and, second, that the doctrine of laches/equitable estoppel, as an affirmative defense, is applicable.
First of all, plaintiff argues that the referee erred in finding conflicting presumptions of paternity. The court does not find plaintiff's arguments persuasive. There can be no doubt that there exists a presumption of paternity, since the minor child was born while the parties were married to each other and, further, that Bruce Riddle ("defendant") has signed the child's birth certificate (R.C. 3111.03[A][1] and 3111.03[A][4]). Furthermore, R.C. 3111.03(A)(5) provides that a presumption arises in favor of paternity if genetic tests are conducted and the results indicate a probability of ninety-five percent or greater that the man is the biological father. In this case, such tests were administered and the test results showed that the defendant has a ninety-five percent probability or greater that he is not the biological father. Although the presumption of R.C. 3111.03(A)(5) speaks in terms of probability of paternity of the man undergoing the testing, surely the reverse presumption of non-paternity is present if the results show that the man tested has a probability of ninety-five percent or greater that he is not the biological father. That such a negative presumption of non-paternity exists is evident by a reading of R.C. 3111.09(D). This section requires the court to enter judgment that the alleged father is not the biological father when an expert finds (presumably based on the ninety-five percent or greater standard) that the man is not the biological father. Hence, the presumption of non-paternity operates to produce a court order to such effect.
Furthermore, R.C. 3111.03(B) specifically refers to those situations where conflicting presumptions exist. The court is at a loss to know what would be conflicting presumptions if the fact pattern as set forth in this case were not such a situation. In short, the court finds that pursuant to R.C. 3111.03(A)(1) and (4), there exists a presumption of paternity; further, that pursuant to R.C. 3111.03(A)(5), there exists a presumption of non-paternity. Plaintiff argues that the results of the genetic tests do not result in such a presumption but merely rebut the presumption of paternity in R.C. 3111.03(A)(1) and (4). This court does not accept this argument, but rather finds that there are conflicting presumptions. Furthermore, the legislature in adopting R.C. 3111.03(B) apparently was aware that applying (A)(1) through (5) may result in conflicting presumptions. Accordingly, it adopted Section (B), which provides that if two or more conflicting presumptions arise under the section, the court shall determine, based on logic and policy considerations, which presumption controls.
Having found that there are conflicting presumptions, the referee used logic and analyzed policy considerations in determining what presumption should control. The court finds the referee's analysis to be thorough and well reasoned and it hereby adopts the same as part of this order. See Appendix, attached. Accordingly, plaintiff's objection to the referee's report to the effect that there are no conflicting presumptions is overruled.
Last, plaintiff argues that the doctrine of laches/equitable estoppel as an affirmative defense should not apply. Specifically, plaintiff argues that defendant did not assert these affirmative defenses and, therefore, has waived the same. The court has reviewed the record and finds that the defense of laches was raised by defendant in his "Memorandum in Support of Shared Parenting Plan" filed on September 12, 1991. Furthermore, the defense of laches was again raised in defendants Homer and Betty Riddle's "Memorandum in Support of Defendant's Motion for Shared Parenting," filed September 20, 1991. Clearly, the defense of laches was an integral part of the defendant's case.
This case is a classic example of when and how, under the guise of "best interest," the doctrine of laches should apply. The court cannot accept plaintiff's arguments that there was insufficient testimony/evidence presented of material prejudice to the defendants. Rather, the court finds that the record is replete with indications of prejudice to several of the defendants. Specifically, the referee found, and the court concurs, that the plaintiff has allowed the defendant to believe that he is the child's father for a period of more than five years. She not only allowed defendant Bruce Riddle to financially contribute to the care and support of the child, she has actively participated in the development of an intimate father-son relationship. If the plaintiff is allowed to cut off the defendant's legal rights as father at this point, the defendant will suffer more than a financial loss resulting from supporting a child he was not legally obligated to support. The defendant will also suffer the breaking of a psychological and emotional bond which has been established between him and the child. The defendant will suffer from the loss of a relationship which is very important to him, the relationship which the plaintiff herself encouraged. The defendant would "lose" not only his only son, but his only child.
With regard to defendants Homer and Betty Riddle, they too have been prejudiced to the same extent as their son, Bruce Riddle, but to a different degree. The plaintiff knowingly represented to Homer and Betty Riddle that they were the grandparents of the child and purposely let this relationship develop for a period of five years. To purposely now destroy that relationship would be in the court's opinion material prejudice to Homer and Betty Riddle. The court finds that there is sufficient evidence to support material prejudice to the defendants required by the defense of laches.
Lastly, plaintiff argues that by "using the authority of this case, a mother can claim that genetic testings should not be used to establish the paternity of the child if it is in the `best interest' of the child and that the `alleged father' remain the father regardless of genetic testing." The court does not accept plaintiff's proposition of law to be a hard and fast rule of law in all situations. Assume for the sake of argument that plaintiff's argument is correct and that the referee erred in finding conflicting presumptions of paternity. Nevertheless, this court, in domestic relations matters, has inherent authority, when considering the best interests of a minor child, to estop plaintiff from using genetic testing to disestablish a child's paternity with his presumed father. The court finds that the facts of this case support this court's finding that plaintiff should be estopped and the court so orders.
For the reasons set forth herein, the court hereby confirms and adopts the referee's report in its entirety.
Exceptions saved to parties adversely affected.
Judgment accordingly.
APPENDIX REPORT OF REFEREE Issued Feb. 20, 1992
GARY J. CARTER, Referee.
This matter came on for hearing on the 20th day of November 1991. The issues before the court are whether summary judgment should be granted upon the motion of third-party defendant, Rocky Forney, and whether defendant, Bruce Riddle, should be considered the legal father of the minor child, Charles Riddle, date of birth October 14, 1985.
This matter was assigned to the undersigned referee pursuant to the Ohio Rules of Civil Procedure, with notice having been given to all parties.
Plaintiff was present in court, together with her attorney, Daniel D. Marshall.
Defendant, Bruce Riddle, was present in court, together with his attorney, Priscilla L. Hax.
Homer and Betty Riddle, friends of the minor child and alleged paternal grandparents, were present in court, together with their attorney, James F. Stevenson.
Defendant Rocky Forney was present in court, together with his attorney, Donald G. Luce.
Upon consideration of the pleadings and the evidence presented, the undersigned referee would respectfully make the following report and recommendations as findings of fact and conclusions of law, and further would recommend that the following orders issue on this matter.
FINDINGS
1. On January 28, 1991, plaintiff, Beverly Riddle, filed her complaint for divorce, alleging that she had been a resident of Shelby County, Ohio, for more than six months immediately preceding the filing of her complaint, that she and defendant, Bruce Riddle, were married in Pasco, Ohio, on September 3, 1982, and that one child was born as issue of the marriage, namely, Charles Riddle, "born October 10, 1985." In addition to requesting that she be granted a divorce on the grounds of gross neglect of duty and extreme cruelty, plaintiff requested temporary and permanent custody of the minor child.
2. On February 5, 1991, defendant, Bruce Riddle, filed his answer and counterclaim, admitting his paternity of the minor child, but stating that the minor child was born on October 14, 1985, not October 10, 1985. Defendant, Bruce Riddle, also requested a divorce on the grounds of extreme cruelty and incompatibility, and he also requested temporary and permanent custody.
3. On February 28, 1991, plaintiff filed her answer to defendant Bruce Riddle's counterclaim, and plaintiff denied the allegation that one child was born as issue of the marriage.
4. The parties agreed, by entry filed March 26, 1991, that a blood test of the parties and the minor child would be performed by the Community Blood Center of Dayton, on April 1, 1991, and the cost of the blood tests would be split between the parties.
5. On May 13, 1991, defendant filed his amended counterclaim for divorce, alleging that in addition to extreme cruelty and incompatibility, the plaintiff was also guilty of adultery.
6. Plaintiff filed her amended motion for custody on May 14, 1991.
7. On May 24, 1991, plaintiff filed her answer to defendant's amended counterclaim for divorce, specifically denying that one child had been born of the marriage, and denying all of the defendant's grounds for divorce, except incompatibility.
8. On May 29, 1991, defendant filed his motion for visitation rights, requesting visitation privileges pursuant to Rule 22 of this court's local rules of court, domestic relations division.
9. On June 7, 1991, Homer and Betty Riddle, friends and alleged paternal grandparents of the minor child, filed their motion for visitation.
10. A hearing was held in this court on June 17, 1991, and as a result of that hearing, an entry was filed herein on August 13, 1991, whereby temporary custody of the minor child was granted to plaintiff. At that time, the parties stipulated to the results of the blood tests, proving that Bruce Riddle is not the natural father of the minor child, Charles Riddle. In addition, visitation privileges were awarded to both Bruce Riddle and Homer and Betty Riddle.
11. On August 26, 1991, plaintiff filed her motion requesting that Rocky Forney be joined as a defendant in this action, and by order dated September 6, 1991, Rocky Forney was joined as a party in this action. Plaintiff's complaint for paternity, alleging that Rocky Forney is the father of the minor child, was filed herein on September 6, 1991.
12. Defendant Rocky Forney, hereinafter referred to as "third-party defendant," filed his answer denying the allegations contained in plaintiff's complaint, on September 19, 1991.
13. On September 26, 1991, third-party defendant, Rocky Forney, filed his motion for summary judgment, alleging that there is no genuine issue as to any material fact and that the third-party defendant is entitled to a judgment as a matter of law.
14. On October 23, 1991, plaintiff filed her amended complaint for divorce, alleging that the minor child, Charles Riddle, is not the issue of the marriage. The plaintiff further alleged that the defendant has been guilty of extreme cruelty, gross neglect of duty, and incompatibility.
15. On November 5, 1991, defendant filed his answer to plaintiff's amended complaint for divorce, denying all of the allegations contained therein except incompatibility.
16. On November 4, 1991, plaintiff filed her response to third-party defendant's motion for summary judgment.
17. At the hearing held on November 20, 1991, the undersigned referee made the verbal recommendation to the parties that the third-party defendant's motion for summary judgment should be dismissed on the grounds that a question of fact exists as to the legal paternity of the minor child.
18. At the hearing on November 20, 1991, Beverly A. Riddle, plaintiff herein, testified that she and the defendant, Bruce Riddle, were married on September 3, 1982. She further testified that the minor child, Charles Riddle, was born on October 14, 1985. She further stated under oath that she believes the child was conceived in January 1985, and she believes that the biological father of the child is Rocky Forney. She stated that this belief is based on the fact that Rocky Forney is the only man with whom she has had sexual intercourse besides her husband, Bruce Riddle, and the paternity test excluded Bruce Riddle.
19. Upon cross-examination, the plaintiff admitted that defendant's Exhibit "A," her original divorce complaint, clearly states that Charles Riddle was born as issue of her marriage to Bruce Riddle. The plaintiff further acknowledged that she signed defendant's Exhibit "B," an affidavit filed at the time of her original divorce complaint, indicating that one child, Charles Riddle, was born as issue of her marriage to Bruce Riddle.
20. Plaintiff further admitted that she signed defendant's Exhibit "C," her divorce information affidavit, DR-1, indicating on page two that the child is the product of her marriage to Bruce Riddle. The plaintiff further acknowledged that she signed defendant's Exhibit "D," the child's birth certificate, indicating that Bruce Riddle is the child's father. Similarly, the plaintiff admitted that she herself filled out defendant's Exhibit "E," a family book in which she is listed as the child's mother and Bruce Riddle is listed as the child's father.
21. Upon further cross-examination, the plaintiff admitted that the minor child, Charles Riddle, has used the name "Riddle" since his birth. The plaintiff further admitted that the minor child has called Homer and Betty Riddle "grandpa and grandma" throughout his lifetime. The plaintiff acknowledged that the child has established a relationship with Homer and Betty Riddle. The plaintiff stated that she told Bruce Riddle he was the father of the minor child when she was two months' pregnant. She further admitted that at the deposition held on November 6, 1991, she was asked if she had ever told Bruce Riddle that he was not the father of her child, and her response was "no." Defendant's Exhibit "H" consists of a copy of the above question and answer at the deposition. The plaintiff admitted that the issue of Bruce Riddle not being the father of the minor child was not raised until after the divorce was filed and an issue was raised regarding the allocation of parental rights and responsibilities for the child.
22. The plaintiff admitted that Bruce Riddle has a good relationship with the minor child, and he has acted as a loving father toward the minor child. The plaintiff further admitted that she herself fostered the relationship between Bruce Riddle and Charles Riddle as father and son.
23. Upon further cross-examination, the plaintiff stated that she was sure a few days after the conception of the child that it belonged to Rocky Forney. However, the plaintiff also admitted that she never told Bruce Riddle that he was not the father of the child. She had told Bruce Riddle that he was the father. The plaintiff also testified that she did not tell Rocky Forney he was the father of the child. The plaintiff testified that she does not wish to end the relationship between Bruce Riddle and the minor child.
24. Upon being further cross-examined, the plaintiff stated that up until the time the divorce was filed, she and Bruce Riddle and the minor child represented themselves to the community as a typical family. She admitted that her original intent was to become the residential parent and legal custodian of the minor child, and have Bruce Riddle pay child support to her. She admitted that it was only when she thought that she might not be designated the residential parent and legal custodian that she came forth with the revelation that Bruce Riddle is not the biological father of the minor child. The plaintiff admitted that the minor child, Charles Riddle, still considers Bruce Riddle to be his father, even up until the date of the hearing.
25. On redirect examination, the plaintiff stated that at the time the divorce was filed, she was not really sure who the father of Charles Riddle actually was. She added that she is afraid that if Bruce Riddle is designated the residential parent and legal custodian of the minor child, Homer and Betty Riddle would end up raising the child. Upon further cross-examination, the plaintiff stated that even while she was pregnant, she felt certain that Rocky Forney was the father of her child. She stated that the only people she told were some girlfriends.
26. Rodney Taylor testified that he has known Bruce Riddle since 1970. He stated that he has seen Bruce Riddle with the child on a weekly basis for a period of several years. He added that the relationship between Bruce Riddle and Charles Riddle is "close knit." According to Taylor, Bruce Riddle is both part mother and part father to the child.
27. Bruce Riddle testified on direct examination that he and the plaintiff were married on September 3, 1982. He further testified that the minor child, Charles Riddle, was born on October 14, 1985. Defendant stated that he asked the plaintiff when she was two months' pregnant if the child was his, and she told him that he was the father of the child. Bruce Riddle further testified that he believed Charles Riddle was his biological child up until the time the divorce was filed. He stated that he was at the hospital when the child was born, his name appears on the birth certificate, and he admitted his paternity when he filed his answer to the divorce complaint.
28. Bruce Riddle testified that he accepts the child as his own son and he considers the child to be his own son. Defendant testified that he is disabled from a back injury, and he has been disabled during the child's entire life. He added that he has played with the child, changed his diapers, fixed his lunches, read to him, and, in general, he has taken care of the child's daily needs. Defendant added that he considers Charles Riddle to be his son, and he loves him as a father loves his son. Defendant stated that he has no other children. Bruce Riddle stated that he had no idea that he was not the biological father of Charles Riddle until he received the results of the blood test in April 1991.
29. Bruce Riddle stated that his parents, Homer and Betty Riddle, have developed a relationship with the child. He added that he himself had a problem with alcohol in the past, but he stated that he has been sober since 1984. He added that he is a paid security guard through the Alcoholism Council. Bruce Riddle added that he wants to be the legal father of the child and he is willing to support the child.
30. Bruce Riddle testified that the plaintiff first told him that he was not the biological father of the child the night before a hearing was to be held in this court in order to determine who should be the residential parent and legal custodian of the minor child.
31. The qualifications of Dr. William Brown, a professional psychologist, were stipulated to by all parties in this matter. Dr. Brown testified that he interviewed the plaintiff and minor child on June 21, 1991, and he interviewed defendant Bruce Riddle and the minor child on July 21, 1991. Dr. Brown stated that he sees no reason why the plaintiff should not be the primary "custodial" parent of the minor child. Dr. Brown added that he interviewed the minor child and found the child's maturity to be somewhat limited. Dr. Brown stated that he is somewhat concerned with the child being with the plaintiff while school is not in session, due to her work schedule. He suggested that the child should spend each summer with Bruce Riddle.
32. Dr. Brown testified that Bruce Riddle is the primary male figure in the minor child's life. He added that he sees no problem with the parenting skills of Bruce Riddle. He added that the minor child sees Bruce Riddle as his "father figure." Dr. Brown stated that, in his opinion, a shared parenting arrangement would be in the best interest of the minor child, whereby the child would reside with the plaintiff during the school year and defendant Bruce Riddle during the summer.
33. Upon cross-examination, Dr. Brown testified that if the bond between Bruce Riddle and the child were broken, it would have a negative impact upon the child. Dr. Brown further testified that a substitution of parental figures would not be good for the child. Dr. Brown testified that if Rocky Forney was brought into the child's life now, it would only be confusing to the child. Dr. Brown even went so far as to state that telling the child at this point that Bruce Riddle is not his real father is "child bashing," which, as a psychologist, he does not like.
34. Catherine Ferguson testified that she is the Director of the Shelby County Alcoholism Council, and that she has been employed by the Alcoholism Council for seven years. She added that she has a bachelor's degree in elementary education, and she taught second grade for five or six years before beginning her present employment. She stated that she has known Bruce Riddle for seven years, the entire time she has been at the Alcoholism Council. She stated that she and Bruce are friends, that he is a volunteer staff member at the Alcoholism Council, and that she is his supervisor. She added that she has seen Bruce Riddle with Charles Riddle approximately ten times over a six-year period, and that Bruce Riddle appears to be a "very caring father." Bruce Riddle has always indicated to her that he is the father of Charles Riddle, and, according to Ferguson, the child seemed comfortable with Bruce Riddle and close to him.
35. Jim Hall testified that he is a senior counselor at the Shelby County Alcoholism Council. He stated that he and Bruce Riddle went to school together, and, since 1985, he has been an alcoholism counselor for Bruce Riddle. Hall was a follow-up counselor to Bruce Riddle after the defendant completed in-patient care at Dettmer Hospital. Hall indicated that Bruce Riddle keeps his appointments and is responsible. He added that he has seen Charles Riddle and Bruce Riddle together approximately fifty to sixty times over the past five years. He added that Bruce Riddle acts as a father would act toward a child. He stated that the relationship between Bruce and Charles Riddle appears to be good.
36. Betty Riddle testified that she is the mother of Bruce Riddle. She stated that since the birth of Charles Riddle, she has had contact with the child and her son, Bruce, approximately four or five times per week. She added that she and her husband Homer baby-sat for the child from the time he was six months old until June 1991, when Bruce and Beverly Riddle separated. Betty Riddle stated that the relationship between Bruce and Charles Riddle is "very close." She described the relationship between Bruce Riddle and Charles Riddle as a "loving father-son relationship."
37. Upon cross-examination, Betty Riddle testified that the plaintiff fostered a grandchild to grandparent relationship between Charles Riddle and her and her husband. The plaintiff even wrote letters to Homer and Betty Riddle addressing them as "grandma and grandpa." According to Betty Riddle, Beverly Riddle never indicated that Bruce Riddle was not the father of the child until after the divorce action was filed.
38. Rocky Forney testified that he has never met Charles Riddle, and he does not want a father-son relationship or any type of visitation with the child. Rocky Forney denied being the father of the minor child.
39. Upon cross-examination, Rocky Forney stated that the plaintiff never told him he was the father of her child until after she filed her divorce complaint against Bruce Riddle. Forney stated that even if it were determined that he is the biological father of the child, he wants no relationship with the child.
40. The undersigned referee interviewed the minor child, Charles Riddle, date of birth October 14, 1985, in his office on November 20, 1991. Charles Riddle appeared to possess normal intelligence and reasoning ability for a six-year-old boy. The child knew his address, and he knew that his mother lives there also. The child was able to identify Bruce Riddle as his "dad." He stated that his dad picks him up every other week, and he likes visiting his dad. He stated that they play games together, put puzzles together, and sometimes wrestle together. He stated that he has fun when he visits his dad. He even went so far as to state that he would like to live with his dad. The undersigned referee was unable to detect any coaching or coercion which would have prompted the child's answers, and it was obvious from his remarks that he considers Bruce Riddle to be his father, he has an ongoing relationship with Bruce Riddle, and he would like to maintain that relationship.
41. The undersigned referee has reviewed the "Report and Memorandum of Guardian Ad Litem," filed herein on February 7, 1992. This referee finds that the guardian has done a thorough job of interviewing all of the parties and bringing the legal and equitable rights of the child to this court's attention for consideration and decision. This referee notes with particularity the guardian's recommendation that Bruce Riddle should continue to be the father of Charles Riddle.
RECOMMENDED CONCLUSIONS OF LAW
1. R.C. 3111.03(A)(1) specifically states that a man is presumed to be the natural father of a child if the man and the child's mother are or have been married to each other, and the child is born during the marriage. R.C. 3111.03(A)(4) specifically states that a man is presumed to be the natural father of a child if the man, with his consent, signs the child's birth certificate. In the case at bar, Bruce Riddle is presumed to be the natural father of Charles Riddle because he and the child's mother, Beverly Riddle, were married to each other at the time the child was born. In addition, Bruce Riddle, knowingly and voluntarily signed the child's birth certificate. R.C. 3111.03(A)(5) states that a man is presumed to be the natural father of a child if a court has ordered that genetic tests be conducted to determine the father and child relationship and the results of the genetic tests indicate a probability of ninety-five percent or greater that the man is the biological father of the child. In the case at bar, genetic tests were conducted upon Bruce Riddle, Beverly Riddle and Charles Riddle by agreement between Bruce Riddle and Beverly Riddle. The admissibility of the tests results was stipulated to by Bruce Riddle and Beverly Riddle. Rather than creating a presumption of paternity, the test results exclude Bruce Riddle as the biological father of the minor child. Thus, the presumptions created by R.C. 3111.03(A)(1) and (A)(4) are in direct conflict with the presumption created by R.C. 3111.03(A)(5).
2. R.C. 3111.09(A) specifies those situations in which the court must order genetic tests to be conducted. R.C. 3111.09(D) specifies that if the court finds that the conclusions of all the examiners are that the alleged father is not the father of the child, the court shall enter judgment that the alleged father is not the father of the child. Plaintiff argues that R.C. 3111.09(D) mandates that this court enter judgment that Bruce Riddle is not the father of Charles Riddle. However, in the case at bar, Bruce Riddle is more than an "alleged" father; he is a "presumed" father. The obvious legislative intent of R.C. 3111.09(D) is to protect the accused father in a paternity proceeding from needless expense or delay, if the evidence warrants such protection. Bruce Riddle is much more than an alleged or accused father in need of the protection provided by R.C. 3111.09(D). He is a presumed father who has relied on that presumption and acted upon that presumption, for a period of more than five years.
3. Furthermore, R.C. 3111.09(D) cannot be considered alone or as if it existed in a vacuum. R.C. 3111.03 and 3111.09 are in pari materia, and must be construed together. Hulett v. Hulett (1989), 45 Ohio St.3d 288, 544 N.E.2d 257. R.C. 3111.03(B) states that if two or more conflicting presumptions arise under the section, the court shall determine, based upon logic and policy considerations, which presumption controls. In the case at bar, the fact that Bruce Riddle and Beverly Riddle were married to each other at the time Charles Riddle was born creates a presumption of paternity which conflicts with the results of the genetic tests. This court should use logic and policy considerations to determine which presumption should control.
4. In terms of policy considerations, the National Conference of Commissioners on Uniform State Laws approved the Uniform Parentage Act ("UPA") in 1973. Section 6(a)(2) of the UPA states that a child's natural mother may bring an action for the purpose of declaring the non-existence of the father-child relationship when there is a presumed father by reason of his marriage to the mother, only if the action is brought within a reasonable time after obtaining knowledge of relevant facts, but, in no event, later than five years after the child's birth. In the case at bar, Charles Riddle was born October 14, 1985. Plaintiff never raised the issue of Bruce Riddle's non-paternity of the minor child until February 28, 1991, when she filed her answer to defendant Bruce Riddle's counterclaim, denying the allegation that one child was born as issue of the marriage. Thus, it is clear that plaintiff's action to establish non-paternity has not been brought within a "reasonable time" as defined by the UPA.
5. As stated by Justice Herbert R. Brown in his concurring opinion in Hulett, supra, a majority of the seventeen states which have adopted the UPA include a time limit which restricts when such actions can be brought to a period ending shortly after birth. Justice Brown further stated that the advantage of these statutory provisions is that they force parentage determinations to be made before a long-term relationship is established between the presumed father and the child. Id.
6. The underlying principle behind the UPA and the various state statutes which are patterned after it can be further seen in the opinions of various courts throughout the United States. A situation very similar to the case at bar was encountered by the Supreme Court of Rhode Island in Pettinato v. Pettinato (R.I. 1990), 582 A.2d 909. In Pettinato, the court was concerned with a situation "wherein a mother can tell a man that he is the father of her child, marry him and live together as a family, and then illegitimatize the child during a divorce proceeding by attacking the legal presumption of paternity that she helped bring about." Id. at 912. The court went on to state that a "mother should be equitably estopped from using genetic blood testing * * * to disestablish a child's paternity in connection with a routine divorce proceeding." Id. The court further specified that the "underlying rationale of the equitable-estoppel doctrine is that `under certain circumstances, a person might be estopped from challenging paternity where that person has by his or her conduct accepted a given person as father of the child.'" Id. at 912-913. In the case at bar, Beverly Riddle, by her conduct, accepted Bruce Riddle as the father of the minor child, Charles Riddle, for a period of more than five years. A holding similar to Pettinato's was rendered by the New York Supreme Court, Appellate Division, Third Department, in the case of Boyles v. Boyles (1983), 95 A.D.2d 95, 466 N.Y.S.2d 762. In Boyles, the parties were married in 1978, the child was born later that year, the husband filed for divorce in 1982, and the wife then alleged non-paternity. The court held that "respondent, through her words and deeds, has held petitioner out as the father of her child. She listed petitioner as the child's father on the birth certificate, and the child has always had petitioner's last name." Id. at 97, 466 N.Y.S.2d at 765. The court went on to state that in "cards and letters to petitioner's parents on behalf of the child, respondent referred to them as `Grandma' and `Grandpa.'" Id. The court added that the parties "lived together for more than two and one-half years after the child was born, with no claim that petitioner was not the child's father * * * until after this proceeding was commenced, when the child was nearly four years old." Id. at 97-98, 466 N.Y.S.2d at 765. The court went on to hold that "respondent * * * created the opportunity for and effectively encouraged the development of a father-son relationship between petitioner and the child and, under the traditional theory of estoppel, she should be barred from now asserting petitioner's lack of paternity for the purpose of obtaining custody without showing that the child's best interests will be served thereby." Id., 95 A.D.2d at 98, 466 N.Y.S.2d at 765.
7. The Supreme Court of Pennsylvania, in a recent case, held that "under certain circumstances, a person might be estopped from challenging paternity where that person has by his or her conduct accepted a given person as father of the child." John M. v. Paula T. (1990), 524 Pa. 306, 318, 571 A.2d 1380, 1386. The Supreme Court of Pennsylvania even went so far as to state that "[t]hese estoppel cases indicate that where the principle is operative, blood tests may well be irrelevant, for the law will not permit a person in these situations to challenge the status which he or she has previously accepted." (Emphasis deleted.) Id. Applying this logic to the case at bar, the blood test excluding Bruce Riddle as the father of Charles Riddle is irrelevant.
8. Plaintiff contends that the above-described arguments are not persuasive because the Ohio legislature did not specifically include the five-year time limitation suggested by the UPA in R.C. Title 31. However, the Ohio legislature did realize that actions to establish non-paternity must be cut off at some point, when it enacted R.C. 3111.05. R.C. 3111.05 states that an action to determine the non-existence of the father and child relationship may not be brought later than five years after the child reaches the age of eighteen. The question thus becomes one of whether a mother should ever be prohibited from bringing an action to establish the non-paternity of a presumed father prior to the expiration of the period described in R.C. 3111.05.
9. The Ohio Supreme Court addressed this question in the case of Wright v. Oliver (1988), 35 Ohio St.3d 10, 517 N.E.2d 883. In Wright, the court held that "laches may be applicable in parentage actions filed prior to the expiration of the statute of limitations, but only if the defendant can show material prejudice." Id. at 12, 517 N.E.2d at 886. In Wright, the court found no material prejudice, but the facts of that case are distinguishable from the case at bar, in that in Wright, the mother was attempting to establish the paternity of an illegitimate child rather than the non-paternity of a child who is presumed legitimate.
10. Plaintiff relies heavily upon the Ohio Supreme Court's opinion in the case of Hulett, and thereby submits that this court has no choice but to accept the results of the blood tests as conclusive. However, the Ohio Supreme Court in Hulett reaffirmed its earlier holding in Wright by stating that "[c]ourts retain the equitable authority to bar such actions where the party instituting suit has failed to expeditiously assert the right to challenge the presumption of paternity and such dilatory behavior results in prejudice to the defendant. This authority exists even when the statute of limitations for bringing the action has not expired." Id., 45 Ohio St.3d at 294-295, 544 N.E.2d at 263. The facts in Hulett are different from the facts of the case at bar. In Hulett, the parties were married on June 30, 1984, the child was born on November 11, 1985, and the mother of the child instituted the non-paternity action on July 22, 1986. Thus, in Hulett, a period of only seven months elapsed after the child was born before the mother raised the issue of the non-paternity of her husband and the child's presumed father. In the case at bar, a period of more than five years elapsed after the child was born, before the child's mother, Beverly Riddle, raised the issue of the non-paternity of Bruce Riddle, her husband and the child's presumed father.
11. Thus, the issue becomes one of whether the plaintiff's conduct has resulted in material prejudice to the defendant, Bruce Riddle. In the case at bar, the plaintiff has allowed the defendant to believe that he is the child's father for a period of more than five years. She has not only allowed Bruce Riddle to financially contribute to the care and support of the minor child, she has actively participated in the development of an intimate father-son relationship. If the plaintiff is allowed to cut off the defendant's legal rights as father at this point, the defendant will suffer more than a financial loss resulting from supporting a child he was not legally obligated to support. The defendant will also suffer the breaking of a psychological and emotional bond which has been established between himself and the child. The defendant will suffer the loss of a relationship which is very important to him, a relationship which the plaintiff herself encouraged. The defendant would "lose" not only his only son, but his only child. The doctrine of laches applies in the case at bar, and plaintiff should be equitably estopped from denying the defendant's paternity.
12. Bruce Riddle is not the only individual who would suffer material prejudice if he is determined not to be the legal father of Charles Riddle. Homer and Betty Riddle, parents of Bruce Riddle and interested parties herein, have established a relationship with the minor child, believing that they were his paternal grandparents. The plaintiff herself encouraged this relationship by referring to Homer and Betty Riddle as "grandma and grandpa." This relationship has been forged and strengthened over a period of more than five years. Even the third-party defendant, Rocky Forney, is prejudiced by the plaintiff's conduct. Forney states that he wants no relationship with the minor child. Any relationship which he may ever wish to establish at some future point will be affected by the emotional bonding which has occurred between Charles and Bruce Riddle.
13. The recurrent theme throughout R.C. Title 31 is that in any case involving the well-being of a minor child, the trial court is to act in a manner that is in keeping with the best interests of the minor child. In the case at bar, the uncontroverted evidence clearly indicates that it would be in the best interest of the minor child for Bruce Riddle to remain as his father. There is no evidence whatsoever which would indicate that Charles Riddle would in any way benefit from the severance of the father-son relationship which he enjoys with Bruce Riddle.
RECOMMENDATIONS
1. This court should declare Bruce Riddle to be the legal father of the minor child, Charles Riddle, born October 14, 1985.
2. The motion of the third-party defendant, Rocky Forney, should be granted and Rocky Forney should be dismissed as a party to this action, upon payment of the fees of the guardian ad litem, which he requested.
3. This matter should be scheduled for further hearing upon the plaintiff's complaint for divorce, the defendant's answer and counterclaim, and the defendant's motion for shared parenting.
4. During the pendency of this action, each parent should be ordered to refrain from criticizing the other parent or other family members in the presence of Charles. In addition, during the pendency of this action, Beverly Riddle should not discuss the question of Charles' parentage with Charles unless the same is recommended and accompanied by a qualified child psychologist.
5. This court should hold its decision in abeyance, concerning those recommendations of the guardian which are not discussed herein until the final hearing in this matter can be held.
6. Objections to this report should be filed in writing with the Clerk of this court, Third Floor, Shelby County Courthouse, Sidney, Ohio 45365, within fourteen days after the date of filing of the within report, and a copy of said objections should be sent to the attorneys for each of the other parties in this matter.
So recommended.