Posts Tagged ‘paternity’

Arizona Appellate Decision Addresses Interesting Parentage Question

Kelly and Sam are a married couple. They want to have a child, but cannot do so together, so they agree that Kelly will undergo artificial insemination. The process is successful, and Kelly delivers a beautiful baby boy, Edward.

Does Sam have any duty to support Edward? If Kelly and Sam get divorced, will Sam have any chance at custody, or joint custody, of Edward? If not, does Sam have any right to visitation with Edward?

Take this question forward a few years. Imagine that Kelly and Sam do get divorced, and Sam dies shortly after the divorce is final (without having written a will). Does Edward get any share of Sam’s estate — or perhaps Sam’s entire estate?

These questions may seem easy. Yes, of course Sam has a duty of support. Of course Sam has a chance at custody (and in any event, visitation) upon Kelly and Sam’s divorce. Of course Edward is an heir to Sam’s estate.

Oh — we left out an important element. Kelly and Sam are both women. Their marriage is recognized because of the 2015 U.S. Supreme Court decision in Obergefell v. Hodges. That landmark court decision holds that same-sex marriages are entitled to the same legal status, protections and liabilities as heterosexual marriages.

Arizona law says that when a child is born to a married couple, the husband is presumed to be the child’s father. Does that mean that a same-sex partner is presumed to be the father? Or a second mother? And if the law creates just a “presumption” of paternity, can that be overcome by proof of the biological impossibility of one woman impregnating another?

This is an interesting thought experiment — except that it’s a real question in an actual Arizona court case. We’ve changed the names of all the principals, but this very story played out in a courtroom in Tucson last spring. Kelly had filed for a divorce, and argued that Sam had no right to consideration for custody of or visitation with Edward.

The trial court judge determined that it would be impermissible to create a presumption for a married man that would not apply to a similarly-situated spouse just because she was a woman. Besides, Kelly and Sam had entered into an agreement before Edward was born — they had agreed to be treated as co-equal parents and to seek a “second parent” adoption if they ever resided in a state that permitted same-sex couples to formally adopt one another’s children (Arizona does not clearly authorize such proceedings).

Kelly sought review by the Arizona Court of Appeals, which agreed to take the case under “special action” jurisdiction (even though the underlying case has not been concluded). Last week the Court of Appeals agreed with the trial judge — though with a slightly different shading in their interpretation. As the appellate court notes, the “presumption” that a married partner is the father of a child born during the marriage is not based only on biology. It is also partly a response to the social policy that favors giving a child a right to support from and attachment to a person who has assumed the role of parent.

None of that, ruled the appellate court, is different just because Sam is a woman. Accordingly, the custody/visitation/support case should proceed as if the Arizona statute was gender-neutral, and Sam should enjoy the presumption that she is Edward’s parent. McLaughlin v. Jones, October 11, 2016.

Kelly and Sam’s legal case is (we think) a fascinating analysis of the differences we have to confront as same-sex marriage becomes clearly embedded in our legal framework. But, because of what we do here at Fleming & Curti, PLC, we’re mostly interested in the probate and inheritance implications of their legal case.

Clearly, Edward is now an heir of Sam. If Sam were to die without writing a will, a portion of her estate — and perhaps all of her estate — would pass to Edward. If Kelly were to die, Sam would have the right to full custody of Edward — even if Kelly had nominated someone else to serve as Edward’s guardian.

Interestingly, the words “father” and “mother” do not appear anywhere in Arizona’s Probate Code (Title 14 of the Arizona Revised Statutes). References to “parent” or “parents” should be easy to work with, and the gender of a decedent’s spouse is irrelevant under existing probate law.

In another generation, though, there will be some oddities. If, for example, Edward were to grow up, have children of his own and then die without writing a will, his estate might pass half to his “maternal” and half to his “paternal” family lines. We can hope that by that time, Arizona’s statutory language will have caught up with the times.

Paternity Testing Allows Unacknowledged Son to Share in Estate

Paternity testing has come a long way in the last few decades. You might reasonably think that it is now so easy to establish parentage that probate court disputes about the subject would be largely a thing of the past. If you thought that, you’d be wrong. Just ask Thomas Powell.

Mr. Powell’s experience in probate court began with the death of Oklahoma resident Valatus Merral Dicksion. Mr. Dicksion had been married, but his wife had died before him. He and his wife had two adult daughters. Mr. Dicksion left a four-page handwritten will, which originally had named one of his daughters as administrator of his estate. Someone had crossed out that portion of the will.

Mr. Dicksion’s brother filed the handwritten will with the probate court. He listed the two daughters as heirs, and described the will as being in his brother’s handwriting and signed by him. The court appointed him as personal representative.

A few months after the probate proceeding was initiated, Mr. Powell filed a petition seeking recognition of his status as a son of the decedent. He argued that the decedent had a relationship with Mr. Powell’s mother, and that his mother put him up for adoption shortly after his 1952 birth.

Mr. Powell and the decedent’s brother both agreed to DNA testing to see if paternity could be confirmed. The paternity testing results were conclusive: Mr. Powell was in fact the decedent’s biological son. The probate court then entered an order determining that he was an “unintentionally omitted” heir, and awarded him the same share of the decedent’s estate that he would have received if Mr. Dicksion had died without signing a will at all.

As the probate estate was wrapping up, Mr. Powell joined his half-sister in objecting to the validity of the handwritten will and sought removal of the decedent’s brother as personal representative. The probate court denied his objections and approved the final accounting of the estate. The probate judge also denied the personal representative’s request that Mr. Powell be ordered to pay the estate’s additional attorney’s fees incurred in responding to his requests.

Mr. Powell appealed to the Oklahoma Court of Appeals, which ruled (among other things) that the DNA testing should not have been used to determine paternity after Mr. Dicksion’s death — that paternity must be established before an alleged father’s death. Mr. Powell then appealed that result to the Oklahoma Supreme Court.

The state high court rewrote the outcome substantially in Mr. Powell’s favor. First, the justices decided that post-death paternity testing CAN be used to determine heirship, at least in Oklahoma. Then they ruled that an Oklahoma law preventing a decedent’s business partner from being appointed to administer an estate should have been applied to Mr. Dicksion’s brother. Finally, they ruled that the contest of Mr. Dicksion’s alleged will should have been formally resolved before the estate could be closed. In Matter of the Estate of Dicksion, November 15, 2011.

The decision was not unanimous. Of the nine members of the Oklahoma Supreme Court, five voted to uphold Mr. Powell’s paternity determination and four argued that prior Oklahoma court decisions should have been followed (which would have prevented the DNA tests from being used). The four dissenting justices did not address questions about the appointment of Mr. Dicksion’s brother as personal representative, or the status of the unresolved will contest.

Mr. Dicksion’s family situation and probate proceeding make for an interesting story. They also cast a little light on how probate contests can sometimes arise, and how resolution of disputes can be difficult and unclear (witness the 5-4 decision of the Oklahoma Supreme Court). It would be a mistake, however, to generalize too much from the result in this case.

All three parts of the Oklahoma Supreme Court holding are dependent on the peculiarities of Oklahoma law. The statute for determining paternity (and its effect on a will not mentioning a previously unknown child) is unusual in Oklahoma, and unlike that in Arizona. The prohibition on business partners being appointed as personal representative (unless mentioned in a will) is also unique to Oklahoma, and does not have an Arizona counterpart. Finally, Oklahoma is one of the minority of states which permits a “holographic” will to be valid (Wikipedia reports that 19 of the 50 U.S. states permit holographic wills — we haven’t checked that assertion, but it sounds about right to us). Arizona, like Oklahoma, does recognize holographic wills; in Arizona, a valid holographic will must have the signature and “material provisions” in the testator’s handwriting.

So what useful information is in the appellate decision in Mr. Dicksion’s probate case? Well, we might generalize a handful of principles:

  1. Know the local law, and update your estate planning if you move. While we might not be too concerned about the possibility of unknown descendants in Arizona, Oklahoma law appears to be significantly different. Whenever a client moves to another state, we urge them to meet with a lawyer in their new state to see if there are differences in state law that they should be aware of. This is the sort of difference we sometimes see and always caution about.
  2. Deal with contingencies in the planning documents, even if it seems unnecessary. If Mr. Dicksion’s will had included a provision that said “I intentionally omit any person not specifically named herein” (or similar language) would the result have been different? Perhaps not — but it might have strengthened the argument that an unknown child should not share in the estate. Of course, this is exactly why lawyers’ documents tend to be much longer and more complicated than non-lawyers think is absolutely necessary.

DNA Test Might Be Useful To Establish Decedent’s Paternity


Despite being cloaked in arcane terms and arguments, the legal system usually makes sense in the real world in which it operates. Sometimes, however, it may take the legal system a few years — or a few centuries — to catch up with that real world. One illustration: the difficulties that can arise in trying to answer the deceptively simple question of paternity, especially after the death of the putative father.

Five (or so) centuries of common law developed before DNA testing for paternity became possible. During that long period courts frequently focused on the importance of protecting the family — a child born to a married woman was presumed (and almost conclusively so) to be the child of the woman’s husband.

Another important development in that long history centered on the privacy rights of all the interested parties. It became extremely difficult to force any contesting person to submit to medical testing to determine paternity. Of course, there were no particularly precise tests available until quite recently.

Today, of course, genetic testing is much more precise and useful in determining parental relationships. Does that mean that the legal system has embraced DNA tests as a means of settling disputes about paternity? Not yet.

Consider Adrian Doe, Jr.’s trusts. Mr. Doe set up a series of trusts which, upon his death, divided into equal shares for his children. At the time of his death he had two children born while he was married to their mother — Adrian III and Evelyn. He also left behind two possible children from Costa Rica, whose respective mothers both asserted that he was the father. What was the trustee to do about Maria and Madelin?

Maria’s birth certificate named Mr. Doe as her father, but Madelin’s was silent about paternity. Should the trustee assume that the records were correct, and create a trust share for one of his possible daughters but not the other?

The trustee asked the Florida probate court what it should do, and the court appointed an attorney to represent the interests of the two minor girls. One filed a request that Evelyn and Adrian III be ordered to submit to cheek swabs in order to determine whether they shared DNA with the girls. The probate court agreed with the request.

The Florida Court of Appeals, citing some of the history of paternity and privacy laws, disagreed and quashed the DNA testing order — for the moment. It did, however, note that with slightly better-developed facts Madelin’s lawyer might be able to procure a new testing order. The appellate court even went so far as to suggest some of the evidence that might demonstrate the need for the testing.

If Madelin’s mother were to explicitly state that Mr. Doe was the father, evidence before the court showed that testing the two acknowledged children would be likely to establish Madelin’s and Maria’s paternity (or prove that they were not Mr. Doe’s children), and there were an explanation as to why Mr. Doe’s DNA could not be obtained (there was some indication that he might have been cremated), then the court might approve the testing. It also would want, however, to give Evelyn and Adrian III a chance to explain any particular privacy concerns they might want the probate court to consider. Doe v. Suntrust Bank, January 29, 2010.

Evidence Rebuts Presumption Of Paternity For Social Security


Sometimes lawyers remind their colleagues and clients that legal problems would arise less frequently if individuals would simply lead more orderly lives. Clarence Schoenfeld and family helped prove that basic legal maxim.

Clarence “Clay” Schoenfeld was 50 and a professor at the University of Wisconsin when he married graduate student Sheryl Smith in 1969. Prof. Schoenfeld had children from his first marriage, and he and his new wife agreed that they would not have children.

Eventually Mrs. Schoenfeld began to think she might want to have children after all. In 1978 she moved out of Prof. Schoenfeld’s home and began to look into the possibility of adoption or artificial insemination.

In 1979, on a vacation in Rome, Mrs. Schoenfeld met Michael Mandeville, who told her that he was a CIA operative and native Australian. Mr. Mandeville told Mrs. Schoenfeld that he would like to have children himself, but that his work prevented him from being a “traditional” father. The two agreed that they could solve one another’s dilemmas if Mrs. Schoenfeld was inseminated with Mr. Mandeville’s sperm.

Mrs. Schoenfeld used a syringe to complete the insemination and in October, 1980, her first child was born. Although Prof. and Mrs. Schoenfeld had been sexually intimate during the period of conception, the child’s birth certificate listed Mr. Mandeville as the father and he was given the Mandeville name. A month later Prof. and Mrs. Schoenfeld were legally separated, though not divorced.

In 1982 Mrs. Schoenfeld repeated the process, with the result that a child was born in October of that year. In May of 1985 her third child was born in the same manner. Mr. Mandeville was listed as the father on each birth certificate. Prof. Schoenfeld moved to a nursing home between the births of the second and third children, though he and Mrs. Schoenfeld were sexually intimate through the time of conception of each child.

Prof. Schoenfeld died in 1996. His widow applied to Social Security on behalf of her children for survivors benefits, and for herself as mother of his surviving children. After an initial round of hearings benefits were awarded, but the Social Security Administration ultimately determined that the children were not Prof. Schoenfeld’s and terminated benefits.

In Wisconsin as in most states (including Arizona), there is a strong presumption that children born during a marriage are the children of the mother’s husband. In this case, the Seventh Circuit Court of Appeals ruled on appeal, that presumption could be overcome by evidence of the actual paternity. Mrs. Schoenfeld’s children would not receive Social Security benefits as a result of her husband’s death. Schoenfeld v. Apfel, January 11, 2001.

Arizona law is similar to the law of Wisconsin. While there is a strong presumption that children born during a marriage are the children of the husband, it can be overcome by “clear and convincing” evidence to the contrary.

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