Jessica Bowers and Jason Bowers began a romantic relationship in 2007; at the time, Jessica was pregnant with a child from her former lover, Stephen Nugent. Jessica and Jason decided Stephen would have nothing to do with the child and Jason would raise the child with Jessica. Stephen had no problem with this arrangement. After the birth of the child, Jason executed an affidavit of paternity acknowledging he is the father of the child. Over the next two years, Jessica and Jason lived together and raised the child together, until they wed. Two years later, the parties separated and Jason filed for divorce.
Here is where the problem starts.
In his Petition, Jason claimed the child was born of the marriage, when in fact the child was born prior to the marriage. Jessica, in her answer and cross-petition, pointed this fact out, but did note that she and Jason considered Jason the legal father of the child. For reasons not set forth in the pleadings, Stephen decided to intervene in the case, seeking to establish his own paternity and custody of the minor child. After genetic testing proved Stephen the biological father, Jason filed an alternative motion seeking third-party custody of the child.
Confused? Don’t worry…it confused the judges considering this case.
The trial court found Stephen unfit and unsuitable to be a custodian. The trial court also found Jessica repeatedly violated court orders and tried to keep the minor child from Jason. So, the court ended up awarding sole legal and sole physical custody to Jason as a third-party custodian. The trial court also ordered the birth certificate should be amended to show Stephen as the natural father.
Jessica appealed and the Eastern District panel split 2-1, in a recently issued opinion. The majority first agreed with the trial court that Jessica was not fit to have custody of the minor child and listed a variety of reasons, including ignoring the child’s medical needs and trying to destroy the bond between the child and Jason. On the big legal question about third-party custody, the majority concluded that awarding third-party custody to a person who is an actual party to the proceeding was procedurally sound.
The dissent took issue with this second conclusion, asserting it makes no sense to give third-party custody to a person who is in fact a first party in the case. First, the dissent did not agree that Stephen could be the natural father even with the genetic testing. Under the Uniform Parentage Act, the acknowledgment of paternity by Jason and Jessica formed conclusive proof of paternity. Also, under the same Act, genetic testing is presumptive proof of paternity. So, this is a case of first impression – when a court has two conclusive and conflicting presumptions, how does It decide? The dissent argues that the standard is the best interest of the child, and under the facts of this case, Jason was the only father child has known, and to strip him of that fatherhood would work great harm to the child. Stephen had years to step up if he wanted to assert parentage, but did not do so, and in fact agreed to step aside as a father before the birth of the child.
The dissent also noted the third-party custody could have been avoided if the parties followed supreme court rules and filed an independent paternity action instead of trying it with the dissolution. In this way, a court could have determined custody in one proceeding with all interested parties and no need to resort to a third-party custodial arrangement. In the dissent’s reading, had this procedure been followed, Jason would have been the natural father and given sole legal and sole physical custody.
The dissent, under authority of the Rules of Civil Procedure, ordered this case transferred to the Missouri Supreme Court to resolve.
The issue may seem unusual, and in some way it is, but it is not actually unique, as more and more couples choose not to marry or delay marrying while still having children together, leaving issues of custodial rights more up in the air. Allowing anyone to intervene as a third party custodian could have serious implications for all types of relationships and an unwanted method of attacking a settled parenting relationship.
We will update you when our supreme court resolves this issue.
If you have questions about paternity and custody, contact us – we can help.