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Volume XVI, Issue I
March 2002 Dear Family LawyerA column answering family law questions
"Dear Family Lawyer" is a new column beginning with this issue of De Novo. It is prepared by the Family Law Section of the Washington State Bar Association.Dear Family Lawyer: I just met my first divorce client. She says she does not know who the father of her only child is. She met her husband when she was four months pregnant, and married him four months later. The child is now five years old. Should the husband be treated as the child's father, even though he never adopted her? --- PerplexedDear Perplexed: Your client's husband is presumed to be the father of her daughter, because the child was born during the marriage. Under current law, he may also be presumed to be the father if he openly held the child out to be his while the child resided in his home. (A bill pending in the Legislature could change this last point.) Under RCW 26.26.040, your client's husband is presumed to be the child's natural father "for all intents and purposes". This means that her husband has all the rights and obligations of parenthood. Like all parents, he has a duty to support the child, and he has a right to a relationship with the child consistent with the child's best interests. You will need to learn about the relationship between the child and your client's husband. Do they spend time together? If so, what do they do? Does he read to her, play with her, take her to doctor's appointments? Is he a "Mr. Mom", or an absent adult whom the child barely recognizes – or somewhere in between? These are some of the "parenting functions" the court must consider. You should also inquire about what your client wants to accomplish and what type of relationship she thinks her husband wants with her child. Because your client's husband is presumed to be the father of her child, you would have to disestablish paternity if that is what you and your client decide. Unless parentage is disestablished by court order, your client's husband is for all purposes the father of her child. Before a court will disestablish paternity, you will need to show the court (and a guardian ad litem) with clear, cogent, and convincing evidence that disestablishment of paternity is in the best interests of the child. "To ascertain the child's best interests, it will usually be necessary to balance the child's constitutional interest in an accurate determination of paternity against the child's interest in maintaining whatever relationship already exists." See In re Swanson, 88 Wn. App. 128, 136-37, 944 P.2d 6 (1997), review denied 134 Wn.2d 1004 (1998). Additionally, paternity of a presumed father cannot be disestablished until paternity has been established with another man. See Marriage of Wendy M., 92 Wn. App. 430, 962 P.2d 130 (1998). Therefore, if your client seeks to disestablish paternity, she will, at a minimum, need to be able to identify the biological father. The first step would be to identify the person or persons who might be the biological father, and the relationship the child has with the potential biological father(s). Interestingly, your client's husband probably will not be able to seek to disestablish paternity. Under RCW 26.26.060, he would have had to bring his action within a reasonable time of learning the facts. It will be an unusual case when five years is a reasonable time. If the bill pending in the Legislature passes, the "reasonable time" will become two years. If the child views the husband as her daddy, you should counsel your client about the serious emotional implications that trying to disrupt of such a relationship will have on the child. Parties who are undergoing a breakdown of their marriage can lose perspective of priorities and the greater good. Not only will it be difficult to prevail, but a court proceeding to disestablish parentage will also be expensive and emotionally trying for both parties and the child. It is likely that the parties will have to continue to deal with each other as parents until the child reaches the age of majority. It is the rare relationship that is improved by a contested legal proceeding. As attorneys, we have an obligation to inform our clients of all implications flowing from their decisions, including the effect of litigation on ongoing relationships. Since the role of an attorney is to be a problem solver for the client instead of a tool to perpetuate conflict, you will want to investigate if there is the possibility for early settlement. This would involve weighing the reasonableness of the parties' positions, gathering the necessary information for solving disputes, and attempting to reach areas of common ground with your client's husband (or his attorney) through communication. An early meeting can often be helpful to establish areas of agreement. There may be times when disestablishment of paternity (or limiting the husband's involvement with the child) could be appropriate. Examples could include cases of domestic violence, sexual abuse, or where the husband and child have no parent-child bond. As you can tell, the factors tend to be fact-specific. In cases where there is the potential for abuse, you will want to provide immediate protections for the child or your client. Also, you may need to have decisions made through motions or trial if either or both parties is unwilling or unable to negotiate reasonably. In the usual situation, you would handle this case like any other dissolution of marriage with children, by establishing a parenting plan and child support. It may be helpful to attend some training on how to file and handle a family law case involving parenting issues. The Family Law Section is offering its annual Family Law Skills Training CLE at the Regional Justice Center in Kent on April 26 and 27, 2002, which will include instruction on many of the aspects of handling a family law case and includes presentations of arguments from actual cases. If you are a Family Law Section member, you can even attend at a discounted price.
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