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 »

×

Laches and child support

The joys of fatherhood are somewhat tempered when you first find out about it when the kid's headed off to her senior prom and the mother is asking you to shell out seventeen years of back child support.  Laches is one of those defenses that you may remember from law school and have never seen since, but it could come in handy in these situations, as demonstrated by the divergent results from a couple of 9th District decisions in the past few weeks. 

First up was Barker v. Jarrell, where the mother became pregnant in 1987.  The father offered to marry her, but she declined, and the two (soon to become three) had no further contact until the mother filed a paternity suit in 2005, seeking back child support.

The father's defense of laches ran into problems.  First was the Supreme Court decision back in 1988 in Wright v. Oliver, holding that laches was available in that situation, but only if the father could show "material prejudice"; more problematically, lack of witnesses and the unfairness of suddenly incurring a multi-year retroactive obligation didn't make the cut in showing that prejudice.  Moreover, while a number of courts had held that the father's inability to form a relationship with his child might constitute such prejudice, the 9th District had previously rejected that argument.

Not this time, though; the trial court had accepted the defense of laches, and the 9th District affirmed that by a 2-1 vote.  The appellate court noted that the father had wanted a relationship with the child, offering to provide financial support when his marriage offer was rejected.  The mother declined that, too, insisting he have no contact with the child because her own parents had threatened to cut her off if she did.  In fact, the mother had married someone else, and raised the child to believe that the husband was the father, waiting until she'd released custody of the child to the maternal grandmother and the child was almost emancipated before filing for child support.  This was too much for the court, which quoted a 4th District opinion in a case with similar facts:

The non-custodial parent is more than a mere money machine. Each parent can contribute to the well-being of a child, regardless of which one has custody. The prejudice to the custodial parent who receives no support is obvious. The prejudice to the non-custodial parent who is denied any input to the child's rearing is just as obvious.

The flip side of Barker was presented in Post v. Caycedo, where the parties' liaison in Puerta Vallarta in 1992 resulted in the birth of a baby girl.  When CSEA filed a motion against Caycedo in 2001, seeking back child support, he asserted laches, too.  Somewhat surprisingly, given that two of the judges in Post were the ones who formed the majority in Barker, the court never even discusses the argument about whether the father had been denied the opportunity to have a relationship with his daughter. 

That could be, though, because the father was pretty much of a jerk:  he insisted that the two had had separate rooms, and that the only sexual congress consisted of the woman's performing oral sex upon him.  The court found this hard to swallow (pun fully intended), particularly since the genetic testing showed a one-in-53 million chance that he wasn't the father.  Noting that, "to paraphrase the principle contained in Occam's Razor, all things being equal, the simplest explanation is usually the correct one," the court observed

In order to find Caycedo credible, this Court would  have to find the following facts to be true. Post met Caycedo and decided almost instantly to have a child with him against his wishes. The two flew to Mexico together and Post obtained the receipt for Caycedo's room to later support a claim that the two had sexual intercourse. Post then performed oral sex on Caycedo and somehow impregnated herself with Caycedo's sperm.

Snaps to the opinion's author for citing to Occam's Razor.

One other thing to note about these cases:  RC 3111.13(F)(3)(a) provides that a father can't be ordered to pay back child support if at the time of the request the child is more than three, and the father did not know and had no reason to know of the pregnancy.  Keep in mind, though, that in Smith v. Smith the Supreme Court held that the statute couldn't constitutionally be applied where the child was born before the statute took effect in 2000. 

Ain't love grand?

Search

Recent Entries

  • April 26, 2017
    MIA
    Like Mark Twain, rumors of my demise have been greatly exaggerated. Except I am pretty sure he's actually dead, while I am not, and for that matter, nobody's spreading rumors that I am. Great lead, huh? The nice thing about...
  • April 20, 2017
    The Supreme Court takes a look at the trial tax
    And you thought this was the week you only had to worry about income taxes
  • April 18, 2017
    What's Up in the 8th
    Remembering Warren Zevon, and the Fourth Amendment lives
  • April 17, 2017
    Case Update
    Structural error, prejudice, and police run amok.
  • April 13, 2017
    Some arguments on sentencing
    Why oral arguments can be fun, even when they're not yours
  • April 12, 2017
    What's Up in the 8th
    Oh fun: declarations against interest v. non-hearsay. Also, the difference between not guilty and innocent, and Ohio's statute penalizing the refusal to take chemical test in a DUI case goes bye-bye
  • April 11, 2017
    Case Update
    Filibusters, and appellate cases on all the ways lawyers can screw up.
  • April 7, 2017
    Change of course
    A new approach in my client-attorney relationships
  • April 4, 2017
    What's Up in the 8th
    A true rocket docket, and Anthony Sowell pops up again
  • April 3, 2017
    Case Update
    Free merchant speech, an argument on Brady, another look at Creech