Nebraska Supreme Court Refuses to Return ‘Son’ to Fit Father

In my last post I told the story of Cesar C., who took care of his girlfriend’s son for two years while she was running from the law, in prison and in a halfway house.  He continued caring for the boy over five months when the mother, Alicia L. was out of the halfway house but didn’t travel from Omaha to Lexington to be with her son.  All of that took place during the first two years of the child’s life.  In short, Cesar was the only father – indeed the only parent – the boy had ever known.

But despite her almost total absence from his life, despite her criminal record and despite her multiple lies to Cesar, the biological father, child support authorities, etc., Mom got custody of little Jaime.  Even those who expect fathers to be kicked to the curb by family courts should find Cesar’s treatment offensive and sexist, which of course it is.

I know what you’re thinking: the Nebraska Supreme Court overturned the trial court’s ruling.  Yes, the trial court made an obviously wrong ruling, but it’s all OK now because the Supreme Court put things in order.  That was what you were thinking, right?

Well, whether or not I read your mind, that’s not exactly what happened.  The Supreme Court did in fact overturn the trial court’s ruling, but not on the issue of custody.  It did so because the trial court had allowed genetic testing to be done and, according to the plain wording of Nebraska law, it shouldn’t have.  Therefore, according to the Nebraska high court, no one should know whether Cesar was the biological father or not.

And that opens yet another can of worms.  Under Nebraska law, when a single man signs a form acknowledging paternity of a child and doesn’t rescind it in the 60 days the statute allows him to do so, the document constitutes a “legal finding.”  That is, it’s an unassailable admission of paternity.

Since Cesar had signed the acknowledgement and hadn’t rescinded it, his paternity was decided, irrespective of genetic facts.  Therefore the trial court had no business granting Alicia’s motion to do genetic testing.  That matter had long ago been decided.

The exceptions to the rule that a paternity acknowledgement constitutes a legal finding of paternity 61 days after it’s made are “fraud, duress and mistake of material fact.”  In other words, if someone signed a paternity acknowledgement, not voluntarily, but due to fraud, duress or mistake of fact, his/her acknowledgement can be set aside and genetic testing done to see who the real father is.

As a practical matter, it would seem hard for a woman to make out a case of fraud or mistake.  The Nebraska court quoted an Indiana case thus:

In In re Paternity of H.H., 879 N.E.2d 1175, 1178 (Ind. App. 2008), the Indiana Court of Appeals concluded that “once a mother has signed a paternity affidavit, she may not use the paternity statutes to deprive the legal father of his rights, even if he is not the biological father.’ The court reasoned that “a woman always has the information necessary to question paternity prior to signing the affidavit. A man, however, could easily sign an affidavit without awareness of the questionable nature of his paternity.’ Id. The court noted that the legal father was “the only father [the child] has ever known . . . was there when she was born, [and] has provided for her financially and emotionally since her birth,’ and the court concluded that “[c]hanging his legal status at this late date is not in the best interests of’ the child, the legal father, or the State.

Let’s repeat, “a woman always has the information necessary to question paternity prior to signing the affidavit. A man, however, could easily sign an affidavit without awareness of the questionable nature of his paternity.’  I’ve written almost exactly those words many times.  The woman knows; the man doesn’t.

Now all that suggests that if it had been Cesar trying to contest his own acknowledgement of paternity, he could have used the fraud/mistake of fact exception to do so.  (The court ruled that Alicia could not because her signature had not been obtained by fraud or mistake, because she knew at the time there was a chance Cesar wasn’t the father.)  But is that right?

In the first place, notice that the Indiana case relied in part on the fact that the child’s best interests required that the non-biological dad remain in his/her life.  In that case,  as in Cesar’s, the father wanted to remain part of the child’s life, but what if he didn’t?  What if the mother’s dishonesty and infidelity so offended him that he wanted out?  He could challenge the acknowledgement, but if the court decided his continuing as dad was in the child’s best interests, he’d be stuck.

So in that event, the court would be ratifying the mother’s deception.  It’s as if it said, “Yes it’s fraud and yes the real biological father will have no chance to raise his own offspring and all because a mother decided it should be so, but that’s just the way it goes.”  And once again a mother would be allowed total control of a biological father’s rights, a non-biological father’s rights and the rights of a child.  It’s all done under the banner of “the best interests of the child.”

Speaking of which, recall that I referred to that concept in my last piece as the “miraculous vanishing best interests of the child doctrine.”  Now you see it, now you don’t.  When it came to Cesar’s retaining custody of Jaime because he was clearly the better qualified parent, all of a sudden the best interests of the child concept evaporated into thin air.  The trial court didn’t utter the words.

But in the same case, if Cesar were seeking to avoid his “parental” responsibilities to Jaime, chances are a court would have said it’s in the best interests of the child for him to stay put.

Then the court comes to the concept that every man in family court fears, or should.  Quoting this time an Illinois case the Nebraska court referred to

“a strong judicial policy favoring the finality and stability of judgments’ and found such principles “particularly poignant in the context of parentage determinations that become part of a child”s personal history and sense of self.’

In other words, if enough time has passed, particularly when children are concerned, courts simply won’t upset existing relationships regardless of parental rights.  So if a man in Cesar’s situation wanted out, the court may admit that he’s not the dad and that his relationship with the child was brought about by fraud, but that’s his tough luck.  He’ll stick around and pay child support for a boy who’s not his irrespective of his rights.  The best interests of the child require that stability reign.

Now once again, that’s little more than the ratification by the court of a mothers multiple deceptions.  And once again, it’s granting mothers complete control over the rights of both potential dads and the child.  We see it time and again in family law.

The argument is that in fact it would harm the child to upset his/her familial relationships, to remove his “father” from his life and bring in another he doesn’t even know.  And surely that’s correct.  No child, particularly a young one could go unaffected by changes like that.  Courts and commentators make the point frequently and consider the matter closed.

What those people don’t want us to notice is that in fact we do exactly that – remove the father from children’s lives and bring in a new “dad” they’ve never met – all the time.  And it is indeed an emotionally traumatic process, but we do it every day, hundreds of times a day.  It’s called divorce.

After all, when a married couple have children and choose to divorce, doesn’t that effectively remove one parent (usually the father) from their lives, or at least marginalize him?  Yes.  And doesn’t Mom often bring in another man -boyfriend or stepfather – to play the role of dad, a man the children don’t know?  Yes.  And isn’t it all emotionally devastating for the children?  Yes again.

So where are the arguments against divorce that are made routinely against defrauded dads trying to distance themselves from the mothers who lied and manipulated their connections to children not theirs?  Interestingly, you never see them made.  You never see a state legislature discussing a prohibition of divorce for parents with children under a certain age because the whole thing harms children.

No, that argument is only made against fathers seeking to assert some form of control over whom they parent and whom they don’t.

The Nebraska Supreme Court remanded the case to the trial court to revisit who should have primary custody of Jaime.  I’ll be I know how that one turns out.

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