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June 2, 2006

Just a short note.  Back in 2000, the legislature amended the law on paternity cases to hold that a father couldn't be held liable for arrearages if the child was over three at the time the paternity action was filed, and the father didn't have any knowledge of the child.  On Wednesday, in Smith v. Smith, the Supreme Court held that the statute couldn't be applied retroactively.


The mother had had the child in 1987, but didn't institute paternity proceedings until ten years later, at which point the newly-proud papa was tagged for $44,000 in arrears.  After the passage of the amendment in 2000, he applied for modification, which the legislature had expressly allowed for in the statute.  The Supreme Court concluded that retroactivity would be unconstitutional, since it would deprive the mother of her "vested right" in the court order.

While the Court specifically addresses the situation where there is an existing order on arrearages, the decision could apply well beyond that:  a fairly good argument could be advanced that the mother has a "vested right" in arrearages if the child was born prior to the passage of the amendment, even if no paternity complaint is filed until after passage.  There's certainly nothing in the language of the decision which would foreclose a broader interpretation of it.

I had a case a little while back concerning laches as a defense to arrearages in paternity cases, and I'll do a post on that next week.

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