Welcome to The Briefcase

Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »

×

Paternity and marriage

RC 3109.04 permits a father to file an application to determine the paternity of a child, at which time he can demand a DNA test to resolve the issue.  But what happens if the mother is married to someone else?

The issue that raises was confronted, but not resolved, by the 6th District last week in David P. v. Kim DThe plaintiff had filed a petition claiming that the child born to Kim a year before was his.  Kim happened to be married at the time of the birth, and she and her husband filed a motion to dismiss the complaint on the grounds that the statute violated their right to marital privacy and to raise their child, and that it was unnecessarily overbroad.

The procedural history got a little funky at that point:  a magistrate denied the motion and ordered genetic testing, the defendants objected to the magistrate's decision, the trial judge denied the objections, but stayed the order of testing so that the defendants could appeal.  The appellate court, though, dismissed the appeal for lack of a final order, and everybody wound up back in the trial court.  The magistrate again ordered testing, at which point the judge reversed himself and granted the motion to dismiss.

The constitutional issues were somewhat muddled, both in their presentation to the court and in the court's treatment of them.  There are decisions which uphold a marital right to privacy, but their relevancy to this situation isn't readily apparent.  The 3rd District did a much better job of analyzing that issue in this 1997 case, and noted that while there are decisions protecting a right to marry, to decide whether to have children, and so forth, none of them have come close to establishing a fundamental right to keep the marital unit intact, which is what is being argued here.  (And what was argued there.)

Similarly, there are cases which establish a fundamental right to raise one's child, but the issue in this case is who's child is it?  One certainly doesn't have a fundamental right to raise somebody else's child, and there are obvious problems with an argument that defendants' right to raise "their" child foreclosed the plaintiff's to determine whether it was their child to begin with. 

The court's treatment was somewhat cavalier, too.  Other than citing the 1997 decision, it really didn't address the merits of the constitutional issues.  Ignoring the fact that the issues raised questions of fundamental rights under Federal constitutional law, which would have required a "strict scrutiny" analysis, it instead applied a rational basis test normally used for determining the constitutionality of the law under the Ohio constitution. 

Finally, it determined that since under that test, the party claiming the law is unconstitutional must show it by "clear and convincing evidence," a remand to take evidence was appropriate, citing the Ohio Supreme Court decision on charter school funding.  Again, that comparison isn't readily discernible:  while the question of whether state support of charter schools violates the constitutional duty of the legislature to provide public education obviously involves a factual inquiry, it's not at all clear that such an inquiry is necessary to resolve the constitutional issue here.

As indicated above, there might not even be one.  While having a third party claim that he's the father of a married couple's child is going to have serious ramifications for the couple, that's arguably a decision best left to the legislature.  Whether other limitations, such as time, should be placed on the exercise of that claim is something that should perhaps be considered, keeping in mind that one of the affected parties is the child itself.  It's one thing for the court to determine that a one-year-old's father is not the mother's husband.  It's an entirely different thing to try to explain to a ten-year-old why she's going to be calling somebody else Daddy.

Search

Recent Entries

  • November 15, 2017
    What's Up in the 8th
    Plea withdrawals (again), sexual predator hearings, and an appellate law question
  • November 7, 2017
    What's Up in the 8th
    Don't listen to prosecutors about the law, good new/bad news jokes on appeal, and the Byzantine course of a death penalty case
  • October 24, 2017
    What's Up in the 8th
    Trying to change the past
  • October 16, 2017
    En banc on sentencing
    The 8th District takes a look at what State v. Marcum means
  • October 13, 2017
    Friday Roundup
    Musings about the death penalty and indigent defense
  • October 11, 2017
    Case Update
    SCOTUS starts its new term, and the Ohio Supreme Court hands down two decisions
  • October 10, 2017
    What's Up in the 8th
    Collaboration by inmates, fun in Juvenile Court, the limits of Creech, and more
  • October 5, 2017
    State v. Thomas
    The Ohio Supreme Court reverses a death penalty conviction
  • October 4, 2017
    Russ' Excellent Adventure
    A juror doesn't like me. Boo-hoo.
  • October 3, 2017
    What's Up in the 8th
    What not to argue on appeal, waiving counsel, the perils of being a juvenile, and expert witnesses