Opinion
No. KNO FA-04 0129531 S
December 6, 2005
ORDER ON MOTION FOR GENETIC TESTING ( #119)
Plaintiff filed this action on April 29, 2004. His complaint alleges that he is the father of a child born on June 20, 1998, and he seeks an award of custody of the child. The defendant mother appeared pro se on May 10, 2004, and on that date filed a motion for pendente lite orders including an order of genetic testing for paternity of the child. On June 8, 2004, however, the court accepted a temporary agreement of the parties on the pendente lite motions and found, inter alia, that the plaintiff is the father of the child involved. The order is silent as to paternity testing. The docket entry further notes that counsel for both parties were present on that occasion, in the person of Attorney White (who has appeared at all times pertinent hereto as counsel for the plaintiff), and of Attorney McCoy (who filed an appearance for defendant on June 4, 2004).
Fifteen months later — on September 16, 2005 — after additional court appearances and mediation between the parties with the family relations office, defendant has filed a motion for genetic testing. The ground expressed in the motion is that she ". . . believes that the Plaintiff may not be the biological father . . ." of the child. At the oral argument on her motion, she added a representation that she had acted under duress when on prior occasions she had stipulated to paternity. She offered no proof of that assertion, however.
On September 29, plaintiff filed an objection to the motion for genetic testing, to which he attached a copy of a paternity decree issued by the Probate Court, District of Norwalk, and indicating that that court had found on September 19, 2001, that plaintiff is the father of the child involved here. The court's decree also identifies the defendant herein as the child's mother, and includes a recital that notice of the proceeding had been given to her in conformance with a prior order of notice.
At the argument on this motion, the court inquired whether the parties had ever entered into a formal acknowledgement of paternity. Plaintiff represented that he had done so, and, at the court's request, filed a copy of that document with the court on October 19. Defendant has not challenged the validity of either the probate decree or the paternity acknowledgement. The acknowledgement bears her signature, as of June 24, 1998, affirming under oath her voluntary assertion that plaintiff is the father of the child whose custody is involved here, and including the standard recitals as to notice of the meaning and consequences of the document.
CGS § 46b-168 confers upon this court the discretion to order genetic testing (DNA testing) ". . . in any proceeding in which the question of paternity is at issue . . ." Defendant might contend that her belief that plaintiff is not her son's father is sufficient to raise a question as to paternity, but the court, under the circumstances of this case, does not agree with her. There have been three formal occasions whereupon she has admitted or acquiesced in a determination that the plaintiff is the father of this child — first, a mere few days after the child was born, by means of the parties' execution of the acknowledgement of paternity; second, in September of 2001, when the Norwalk Probate Court issued its decree; and third, in June of 2004 when, in this court, she apparently stipulated to that effect and the court made a finding of paternity based upon her stipulation.
The acknowledgement of paternity that is before the court is in the format prescribed by CGS § 46b-172. It was executed more than seven years ago. The statute provides that when such an acknowledgement has been properly executed, and sixty days have passed without either parent seeking its rescission as provided by § 46b-172(a)(2), the document thereafter has the same force and effect as a judgment of the superior court on the paternity issue. At any later date it may only be challenged upon a showing of fraud, duress, or material mistake of fact. Here, fraud and material mistake of fact have not been pleaded, and duress, while casually claimed although not pleaded, has certainly not been shown.
General Statutes § 46b-172 provides:
(a)(1) In lieu of or in conclusion of proceedings under Section 46b-160, a written acknowledgment of paternity executed and sworn to by the putative father of the child when accompanied by (A) an attested waiver of the right to a blood test, the right to a trial and the right to an attorney, and (B) a written affirmation of paternity executed and sworn to by the mother of the child and filed with the Superior Court, for the judicial district in which the mother of the child or the putative father resides shall have the same force and effect as a judgment of that court. It shall be considered a legal finding of paternity without requiring or permitting judicial ratification, and shall be binding on the person executing the same whether he is an adult or a minor, subject to subdivision (2) of this subsection. Such acknowledgment shall not be binding unless, prior to the signing of any affirmation or acknowledgment of paternity, the mother and the putative father are given oral and written notice of the alternatives to, the legal consequences of, and the rights and responsibilities that arise from signing such affirmation or acknowledgment. The notice to the mother shall include, but shall not be limited to, notice that the affirmation of paternity may result in rights of custody and visitation, as well as a duty of support, in the person named as father. The notice to the putative father shall include, but not be limited to, notice that he has the right to contest paternity, including the right to appointment of counsel, a genetic test to determine paternity and a trial by the Superior Court or a family support magistrate and that acknowledgment of paternity will make him liable for the financial support of the child until the child's eighteenth birthday. In addition, the notice shall inform the mother and the father that DNA testing may be able to establish paternity with a high degree of accuracy and may, under certain circumstances, be available at state expense. The notices shall also explain the right to rescind the acknowledgment, as set forth in subdivision (2) of this subsection, including the address where such notice of rescission should be sent, and shall explain that the acknowledgment cannot be challenged after sixty days, except in court upon a showing of fraud, duress or material mistake of fact.
(2) The mother and the acknowledged father shall have the right to rescind such affirmation or acknowledgment in writing within the earlier of (A) sixty days, or (B) the date of an agreement to support such child approved in accordance with subsection (b) of this section or an order of support for such child entered in a proceeding under subsection (c) of this section. An acknowledgment executed in accordance with subdivision (1) of this subsection may be challenged in court or before a family support magistrate after the rescission period only on the basis of fraud, duress or material mistake of fact which may include evidence that he is not the father, with the burden of proof upon the challenger. During the pendency of any such challenge, any responsibilities arising from such acknowledgment shall continue except for good cause shown.
Usually, attempts to repudiate an acknowledgement of paternity come before the court from the father's direction, when his relationship with the mother and the child of their union have terminated and he has only the prospect of years of child support payments to look forward to. An effort such as this one brought by a mother must be subjected to the same legal standards, and a number of cases make clear that such attempts cannot be made at will or upon whimsy. In Bleidner v. Searles, 19 Conn.App. 76 (1989), the court parsed the predecessor to today's statute and discerned within it a clear legislated preference for the finality of judgments of paternity. At 19 Conn.App. 76, 81, it noted ". . . the acknowledgment procedure provides an alternative to a full scale judicial proceeding, and an agreement reached pursuant to it does not require court approval . . . Once a person signs a written acknowledgment form, that form has 'the same force and effect as a judgment of the court . . .' [T]hat judgment is res judicata, and is reviewable by the court only through a petition for a hearing on that issue filed within three years of the entry of the judgment." The decision upheld the trial court's denial of a petition for a new trial brought more than three years after the acknowledgement had been signed. Later, in Cordona v. Negron, 53 Conn.App. 152 (1999), the court followed that precedent and deemed it to be error for a support magistrate to order genetic testing to determine paternity in the absence of proof that fraud (or, conceivably, duress or mutual mistake) had led to its original determination. These cases have been so consistently followed by the trial judges and support magistrates that the matter may be described now as axiomatic and requiring no further discussion.
Here, however, plaintiff wears both belt and suspenders, given the existence of the Norwich Probate Court's decree which was issued under the apparent authority of CGS § 46b-172a. The decree, as provided in subsection (g) of that statute, confers upon the father rights and responsibilities equivalent to those of the mother, including that of guardianship of the child. The decree is more than four years old, and the court has not been informed that it is the subject of any appeal or other effort to reverse. CGS § 45a-24 provides that a decree of a probate court made upon a matter within its jurisdiction is conclusive until set aside by means of prescribed procedures, and affords to such decrees full faith and credit and declares that they are beyond collateral attack except, notably, where fraud is shown. Defendant here has not so much as alleged that it has occurred.
This court also finds persuasive the reasoning of the Rhode Island Supreme Court in the matter of Pettinato v. Pettinato, 582 A.2d. 909 (R.I., 1990). That state's acknowledgement of paternity statute is essentially similar to § 46b-172, and the case arose upon an attempt by a mother who had participated in the statutory acknowledgement process with respect to a child born before the parties' marriage and then raised the issue of paternity in the couple's dissolution action. The court indicated its concern about a ". . . situation wherein a mother can tell a man that he is the father of the child . . . and then illegitimatize the child . . . by attacking the presumption of paternity that she helped bring about . . ." Significantly, the tests had been performed, and the results excluded the husband as father; relying upon the principle of equitable estoppel, however, the decision upheld a trial court's ruling that the blood test results were, in this context, irrelevant. Legal paternity had been previously and sufficiently established.
R.I. Gen. Laws 15-8-3 provides in relevant part that "a man is presumed to be the natural father of a child if . . . a sworn acknowledgement of paternity of a child born out of wedlock is signed by both parents . . . and is forwarded to the state registrar of vital records for the purpose of amending the birth certificate. The sworn acknowledgement becomes a conclusive presumption if there is no court challenge to this document within sixty (60) days of the signing of this acknowledgment. The only defenses which may be raised to the signing of this acknowledgement after the sixty (60) day period are fraud, duress, or mistake of fact."
Although in a case which arose upon a man's effort to avoid the responsibilities of fatherhood rather than, as here, a woman's effort to oust a father from her child's life, our supreme court has also applied the doctrine of equitable estoppel in two cases, W. v. W. (I), 248 Conn. 487 (1999) and W. v. W. (II), 256 Conn. 657 (2001). In each case (which involve the same parties), the court ruled against a man who, in the first case claimed, and in the second case proved by genetic test results, that he was not the father of the child for whom his former wife sought support. The court held him to be equitably estopped from making that argument after he had held himself out as the child's father for several years, and taken other steps to obviate a determination that anyone else might be her father, until the marriage of the parties went awry. The court defined the doctrine as applicable in situations in which a party has done or said something which is intended or calculated to induce another to believe in the existence of certain facts and to act upon that belief, and the other party, influenced thereby, has actually changed his position or done something to his injury which he otherwise would not have done.
In the case at bar, the court notes that plaintiff has held himself out as father to the child involved here for more than seven years. At least since defendant acknowledged that he is the father of the child, on June 24, 1998, he has had a reasonable basis for doing so. In 2001, he successfully applied to the Norwalk Probate Court for a determination of his parenthood, and assumed thereby an additional legal tether to the responsibilities of that stabs; equity would be offended by the premise that he should enjoy no access to its rights. Moreover, in the more than eighteen months since this action commenced, this court notes that court orders of joint custody have been entered in favor of both parties and that by agreement of defendant he has had continuous and frequent access to the child.
The court is aware that a child's right to know his biological parents' identities is widely respected and recognized as highly compelling. See, e.g. Ragin v. Lee, 78 Conn.App. 848 (2003). While the parties' child's right is tangentially implicated by the ruling which this court has now been asked to make, it must be emphasized that in today's ruling on defendant's motion, this court is not intending to deprive the child from someday raising the issue on his own motion should he desire to do so. The court notes that on August 9, 2004, a previous order entered herein directing that a guardian ad litem be appointed for the child; notwithstanding that order, no guardian has yet appeared on the child's behalf The court weighed whether it should defer any ruling on the instant motion until a guardian had appeared and articulated what he or she felt was in the child's best interest with respect to this motion, but decided against doing so. No guardian ad litem can know what harm confronts the child if the testing is performed and it excludes the plaintiff as the biological father. This child's age is particularly problematical. He is seven, thus too young to appreciate fully the merits of the arguments for and against testing, and yet too old to be suddenly deprived without probable detriment of a father who has been part of his life since birth. The court feels that any election by the guardian to test or not to test could only reflect the guardian's personal preference on that option, whereas it is the child, not the guardian, who would have to live with the consequences.
Accordingly, for the reasons indicated, defendant's motion for genetic testing is denied.
In light of the prospect of further conflict in this action, the court additionally reiterates that portion of the August 9, 2004 order appointing a guardian ad litem for the minor child, and directs that the clerk of the court make a designation from its list of approved guardians forthwith.