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Stitham v. Henderson, attorneys and footnotes

Attorney for plaintiff:

Jefferson T. Ashby, Esq.
Hardings Law Offices
P O Box 427
Presque Isle, ME 04769-0427

Attorney for defendant:

Harlod L. Stewart II
Stewart Law Office
541 Maine Street, suite A
Presque Isle, ME 04769
FOOTNOTES******************************** {1} . Norma took the name of Henderson upon marriage to Henderson. Later, when she married Stitham she took the name of Stitham. {2} . Although the Superior Court had concurrent jurisdiction with the District Court over paternity actions when Stitham filed his complaint, recent legislation has given the District Court exclusive jurisdiction over these actions. 19-A M.R.S.A. § 1556 (Supp. 2000), amended by P.L. 1999, ch. 731, § ZZZ-32 (effective Jan. 1, 2001). {3} . Henderson argues that the term "alleged father" as used in the Act refers to Stitham. A thorough reading of all of the sections in the Act in which the term is used, however, clearly indicates that in a case where there are two men who both claim, or are claimed to be, the father of the child, both can be the "alleged father." Indeed, both allege that they are the child's father. Because they both allege themselves as fathers, either could have brought the action since the Act allows an "alleged father" to file a complaint. 19-A M.R.S.A. § 1553 (1998). Either could have been ordered by the court to participate in DNA testing. 19-A M.R.S.A. § 1558 (1998). Henderson's argument that only Stitham can be considered the "alleged father" because Stitham brought the action is without merit. {4} . At the time the parties filed their statements of material facts, M.R. Civ. P. 7(d) was the applicable rule. Effective January 1, 2001, Rule 7(d) was abrogated and M.R. Civ. P. 56(h), which now governs such statements, was adopted. {5} . The District Court is the forum where sensitive family matters should ordinarily be resolved. The District Court now has exclusive jurisdiction in most family matter cases. See, e.g., P.L. 1999, ch. 731, § ZZZ-4 (effective Jan. 1, 2001) (codified at 4 M.R.S.A. § 152(11) (Supp. 2000)) (giving the District Court exclusive jurisdiction in divorce, annulment, and judicial separation actions); 19-A M.R.S.A. § 1556 (Supp. 2000), amended by P.L. 1999, ch. 731, § ZZZ-32 (effective Jan. 1, 2001) (giving the District Court exclusive jurisdiction in paternity actions). The District Court includes the Family Court Division with case management officers for the purpose of managing and expediting such matters. 4 M.R.S.A. § 183 (Supp. 2000); R. Fam. Div. Dist. Ct. I, Me. Rptr., 699-709 A.2d CXXI-CXXII. {6} . The District Court also has the statutory authority to award contact with a child to a third party. 19-A M.R.S.A. § 1653(2)(B) (1998). Although this provision could not be interpreted to allow a court to give contact to a person with a limited relationship to the child, over the objections of the parents, Henderson is a person with significant bonds to the child, even if he needs to be placed into the status of a third party. See Rideout v. Riendeau, 2000 ME 198, ¶¶ 27, 33, 761 A.2d 291, 302-03 (upholding the constitutionality of the Grandparent Visitation Act, 19-A M.R.S.A. §§ 1801-1805 (1998 & Supp. 2000), by narrowly interpreting it to allow grandparents, who had functioned as parents to children for a significant period of time, to invoke the parens patriae authority of the court and seek contact with the children). {7} . We have held previously that a putative father, whose paternity has not been adjudicated, may not intervene as of right, pursuant to M.R. Civ. P. 24(a), in a post-divorce proceeding between the mother and her ex-husband where the child was born during the marriage of the mother and her ex-husband. Morrill v. Morrill, 632 A.2d 137, 138 (Me. 1993). We suggested the possibility that permissive intervention, under M.R. Civ. P. 24(b), might be allowed. Morrill, 632 A.2d at 138. {8} . In an "action in bastardy," created to allow the adjudication of paternity in the absence of marriage, the man was "accused" of paternity and found guilty or not guilty of being a father. If the mother identified the father "at the travail," signifying the period of time after the pains of labor had commenced but before the birth of the child, it was regarded as competent evidence of paternity. See Beals v. Furbish, 39 Me. 469 (1855). {9} . This approach was later disapproved. See Overlock v. Hall, 17 A. 169, 170 (Me. 1889) (holding that a complainant cannot offer a child into evidence for purposes of showing family resemblance). {10} . See, e.g., Okla. Stat. Ann. tit. 10, § 3(B) (West 2000) ("If a child is born during the course of the marriage and is reared by the husband and wife as a member of their family without disputing the child's legitimacy for a period of at least two (2) years, the presumption cannot be disputed by anyone."); Tenn. Code Ann. § 36-1-102(26)(B) (2000) (including in the definition of "legal parent" a man "who is or has been married to the biological mother of the child if the child was born during the marriage"); W. Va. Code § 48-4-1(i) (2000) (including in the definition of "legal father" a man "[w]ho is married to [the child's] mother at the time of conception" or "who is married to [the child's] mother at the time of birth of the child"); Smith v. Cole, 553 So. 2d 847, 854 (La. 1989) ("The legal tie of paternity will not be affected by subsequent proof of the child's actual biological tie."). {11} . A father of a child born out of wedlock is liable for the support of the child to the same extent as a father of a child born in wedlock. 19-A M.R.S.A. § 1552 (1998). {12} . As one author has noted, absent guidance from the courts, the results of such a system may be the unintended disruption of a stable family: This clash between the emotional and psychological value of families and the legal rules governing them has several adverse consequences. One consequence . . . is that biological fathers who have had no significant relationship with their children may gain custody of them, even when it means breaking up a child's relationship with another man who has lived as the child's father and to whom the child may be very attached. Leslie Joan Harris, Reconsidering the Criteria for Legal Fatherhood, 1996 Utah L. Rev. 461, 474 (1996). {13} . See, e.g., Rideout v. Riendeau, 2000 ME 198, ¶ 28, 761 A.2d 291, 302 ("[T]he State has demonstrated that it has a compelling interest in providing a forum in which a grandparent, who has acted as a parent to the child . . . may seek continuing contact with the child."). {14} . For example, historically, the concept of a "maternity test" was rarely discussed because the biological mother was, by definition, present at the birth of the child. Given advances in genetics, that assumption will not always hold. {15} . One court has defined de facto parent in the following manner: A de facto parent is one who has no biological relation to the child, but has participated in the child's life as a member of the child's family. The de facto parent resides with the child and, with the consent and encouragement of the legal parent, performs a share of caretaking functions at least as great as the legal parent. E.N.O. v. L.M.M., 711 N.E.2d 886, 891 (Mass. 1999). {16} . Section 2.03(1)(c) suggests the following standards for determining de facto parenthood: (c) A de facto parent is an individual other than a legal parent or a parent by estoppel who, for a significant period of time not less than two years, (i) lived with the child and, (ii) for reasons primarily other than financial compensation, and with the agreement of a legal parent to form a parent-child relationship, or as a result of a complete failure or inability of any legal parent to perform caretaking functions, (A) regularly performed a majority of the caretaking functions for the child, or (B) regularly performed a share of caretaking functions at least as great as that of the parent with whom the child primarily lived. American Law Institute, Principles of the Law of Family Dissolution: Analysis and Recommendations, § 2.03 (1)(c) (Tentative Draft No. 4, April 10, 2000).

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