It happens more often than you may think – a couple have a child together but never marry, have some difficulties and separate, one parent files a paternity suit to establish custody and support rights, and the couple gets back together. What force does the paternity judgment have over the couple once they begin residing together?
Once the couple establishes a single residence together, a change in circumstances occurs that would justify modifying the paternity judgment as to both custody and support. Because the parties now live together, a custody schedule becomes moot. Also, child support must change – if not eliminated, it certainly would be reduced because of the shared expenses of a single household. But in order for a modification to occur, one party must go back to court. Otherwise, the support obligation remains in place and a party could accrue an arrearage.
Now let’s take the couple’s reunion one step further – the couple actually gets married. Does the paternity judgment still have any legal effect?
The Western District of the Missouri Court of Appeals addressed this issue last week in Ballenger v. Ballenger. In 2003, a court entered a paternity judgment that granted mother and father joint legal and physical custody of their child, and entered a schedule of physical custody. Four years later, mother and father married. Six years later, mother took the child and left the marital residence, ostensibly as a result of marital difficulties. Mother would not let father see the child, so father filed a writ of habeas corpus for the return of the child based on the paternity judgment in 2003. Mother countered that the marriage nullified the paternity judgment, but the trial court did not agree and granted the writ. Mother appealed and the Western District reversed.
Surprisingly, this is a case of first impression. The appellate court looked to other cases where divorced parents remarry and found the majority of jurisdictions hold that the remarriage terminates the custody and support elements of the divorce decree. The court reasoned that when parents remarry, the separate rights of custody that require court supervision disappear as separate parties become an intact family. Any separation between the parties that happens after marriage requires a new court action; father in this case would have to file for legal separation or divorce and at that point also file a motion for custody pendente lite to regain custody of the minor child.
If you have questions about the effects of marriage on a former paternity judgment, contact us – we can help.