Debra L. McGee/Office of Child Support v. Justin Gonyo ( 2016 )

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@state.vt.us or by mail at: Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be
made before this opinion goes to press.
2016 VT 8
No. 2014-270
Debra L. McGee / Supreme Court
Office of Child Support
On Appeal from
v. Superior Court, Chittenden Unit,
Family Division
Justin Gonyo April Term, 2015
Linda Levitt, J.
Debra L. McGee, Pro Se, Georgia, Plaintiff-Appellee.
Mary Billings Munger, Burlington, for Plaintiff-Appellee Office of Child Support.
Justin Gonyo, Pro Se, Fairfax, Defendant-Appellant.
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.
¶ 1. EATON, J. Defendant Justin Gonyo appeals pro se from a family court order of
nonparentage. Defendant contends the court erred in concluding that he lacked the statutory
authority to file a voluntary acknowledgment of parentage and parentage action because he is not
the child’s biological parent. We affirm, albeit on a different basis from the trial court.
¶ 2. The facts may be summarized as follows. The child, a girl, was born on May 27,
2011. Shortly thereafter, on June 6, 2011, the child’s mother and defendant filed a Voluntary
Acknowledgment of Parentage (VAP) form with the Department of Health, Agency of Human
Services. Both parties signed the form, which stated that they “voluntarily and without coercion,
and of our own free will, hereby acknowledge that we are the biological parents of the child” and
understand and accept “the legal rights and responsibilities that come with being a parent,”
including rights to custody, visitation, and notice before the child may be adopted. The child’s
birth certificate identified mother and defendant as the child’s parents.
¶ 3. Mother and defendant separated in 2012.1 About a year later, in October 2013,
the Office of Child Support (OCS) filed a Complaint for Support and Recovery of Debt, together
with a “Motion for Genetic Testing Despite Parentage Presumption.” The motion alleged that,
despite the presumption of parentage arising from the VAP, there were grounds to believe that
defendant was not the biological father based on mother’s affidavit naming another individual as
the biological father, and stating that she was already fourteen weeks pregnant when she and
defendant got together. The following month, defendant filed a pro se pleading in which he
opposed the motion for genetic testing and asked the court “to grant [him] a parentage order of
the child.” Defendant acknowledged that he was not the child’s biological father and was aware
of this when he signed the VAP, but claimed that there was “nothing wrong” with doing so, and
that the time for rescinding it had expired. Defendant followed with a more formal motion to
establish parentage in December 2013.
¶ 4. In the meantime, the family court granted the motion for genetic testing, which
took place in early January 2014. The test excluded defendant as the child’s biological father.
1
Defendant later testified that he moved out of the home he shared with mother and the
child in November 2012; mother indicated that it was in June or July 2012. The factual disparity
is not legally material. The dissenting opinion nevertheless “accept[s] for purposes of . . .
analysis” all of defendant’s representations about his relationship with mother and the child, and
based thereon finds the result here to be “distressing.” Post, ¶ 25 n.9. The dissent does not
explain the basis for accepting defendant’s characterization of the family dynamics over that of
mother, who painted a different, and somewhat more troubling picture of a relationship that
lasted about one year. Mother indicated that defendant moved out in June or July—when the
child would have been twelve to fourteen months old, and thereafter engaged in such threatening
behavior that she was compelled to obtain a restraining order. Whatever the “equities” in this or
any other case, the dissent’s concern that our holding vacating the fraudulent VAP may allow a
disaffected biological mother to disturb a child’s settled relationship with the putative biological
father, contrary to the child’s best interests, may be addressed through the settled expedient of
adoption. See Titchenal v. Dexter, 166 Vt. 373, 380, 693 A.2d 682, 686 (1997) (noting that
nonbiological putative parents may obtain parental rights and responsibilities “through
adoption”); see also Moreau v. Sylvester, 2014 VT 31, ¶ 35, 196 Vt. 183, 95 A.3d 416
(reaffirming Titchenal).
2
Later that month, mother filed a pro se motion to dismiss defendant’s parentage action, and OCS
moved to set aside the VAP and to set the matter for a hearing. In February 2014, the family
court issued a summary “order of non-parentage” based on the genetic test, dismissed
defendant’s parentage action, and ordered the case closed. Defendant, in response, moved for
reconsideration, and OCS moved to reopen the matter and set it for a hearing to address “the
nature of the VAP and the power of the Court to set it aside.” The court scheduled the matter for
a hearing in May 2014.
¶ 5. Defendant appeared pro se at the hearing and testified in his own behalf.
Defendant testified that he began living with mother when she was already fourteen weeks
pregnant, was present at the child’s birth, took an active role in the care of the child, and bought
her clothes and gifts. Defendant stated that he moved out of the home in November 2012, when
the child was about seventeen months old, but continued to visit with her until mother was
granted a relief-from-abuse order in May 2014, barring him from contacting either mother or the
child.2
¶ 6. Mother also testified, acknowledging that she and defendant had knowingly
signed the VAP, which falsely stated that defendant was the child’s biological father. She
admitted that defendant had been “good” with the child, but stated that he had recently been
harassing and stalking her. Her reason for seeking to rescind the VAP, mother explained, was to
afford the biological father an opportunity to become more involved with the child, an
opportunity he had not thus far pursued.
¶ 7. The parties submitted additional briefing following the hearing. Among other
arguments, OCS maintained that the presumption of parentage arising from the VAP was in the
nature of a judicial order; that the VAP was limited to biological parents; that both parties here
knowingly misrepresented defendant’s status as the child’s biological father; and therefore that
2
As noted, mother disputed father’s testimony that he moved out in November 2012,
claiming that it was earlier in the year.
3
the VAP could be set aside under Vermont Rule of Civil Procedure 60(b) as a “fraud upon the
court.”
¶ 8. The family court issued a written decision in July 2014, reaffirming its earlier
ruling. The court concluded that defendant lacked standing to bring a parentage action because
he is not the “natural parent” of the child under 15 V.S.A. § 302(a) (limiting actions to establish
parentage to a few categories, including “a person alleged or alleging himself to be the natural
parent of a child”), and further concluded that the VAP was ineffective to establish parentage
because defendant is not a “biological” parent of the child. See id. § 307(d) (“A witnessed
Voluntary Acknowledgment of Parentage form signed by both biological parents under this
section shall be a presumptive legal determination of parentage upon filing with the department
of health provided no court has previously adjudicated parentage or no legal presumption of
legitimacy otherwise applies.”). This pro se appeal by defendant followed.
¶ 9. We begin with the validity of the VAP, which we find to be dispositive. As
explained below, we agree with OCS’s assertion that, inasmuch as both signatories knowingly
misrepresented defendant to be the child’s biological father, the VAP in this case was a per se
fraud upon the court, and properly set aside on that basis.
¶ 10. As noted, a presumption of parentage may be established under the Parentage
Proceedings Act, 15 V.S.A. §§ 301-308, by the filing of “[a] witnessed Voluntary
Acknowledgment of Paternity form signed by both biological parents under this section.” Id.
§ 307(d). Consistent with the statute, the VAP signed by mother and defendant here expressly
stated that, by signing “we acknowledge that we are the biological parents of this child.”
¶ 11. The Act places considerable emphasis on the legal consequences of filing a signed
VAP, providing that it establishes “a presumptive legal determination of parentage,” id.
(emphasis added), which may be subsequently rescinded only “within 60 days after signing the
form” and thereafter “challenged only pursuant to Rule 60 of the Vermont Rules of Civil
4
Procedure.” Id. § 307(f). The Act also requires that VAP forms contain express language
“emphasizing the gravity of the effects of acknowledging parentage and the rights and
responsibilities which attach.” Id. § 307(b). Thus, the VAP signed by defendant and mother
here explained that, while the law assumes an unmarried mother is the biological parent, it
“[d]oes not recognize the father until parentage has been legally established”; cautioned neither
parent to sign the VAP if he or she had any doubt “about the father’s identity”; and confirmed
that, by signing, “both parents accept the legal rights and responsibilities that come with being a
parent.”
¶ 12. It is not surprising, therefore, that courts have generally concluded that voluntary
acknowledgments of paternity effectively “operate as judgments,” In re Parentage of G.E.M.,
890 N.E.2d 944, 953 (Ill. App. Ct. 2008), a conclusion reinforced by the common statutory
provision authorizing later challenges to VAPs solely by means of a motion for relief from
judgment. See 15 V.S.A. § 307(f) (providing that, if not rescinded within sixty days, a VAP
“may be challenged only pursuant to Rule 60 of the Vermont Rules of Civil Procedure” motion
for relief from judgment or order); Cesar C. v. Alicia L., 800 N.W.2d 249, 255 (Neb. 2011)
(holding that “establishment of paternity by acknowledgment is the equivalent of establishment
of paternity by a judicial proceeding”); In re Gendron, 950 A.2d 151, 154 (N.H. 2008)
(concluding that, “by signing the acknowledgment, the mother, by her own volition, accepted
that the father is the child’s biological father,” and that “[a]ccordingly . . . the acknowledgment
now has the same force and effect as a Massachusetts court judgment”).
¶ 13. As more fully discussed below, in recognition of the significant legal
consequences of an acknowledgement of paternity, a number of courts have held that where—as
here—parties fraudulently collude to establish parentage, the legal determination of paternity
may be set aside as a “fraud on the court.” Although in Vermont, as elsewhere, a motion for
relief from judgment based on fraud or misrepresentation must be filed within one year of the
5
proceeding, a motion brought under the general provision for “any other reason justifying relief”
must “be filed within a reasonable time,” and therefore may be brought outside the one-year
limitation period. V.R.C.P. 60(b)(6). Thus, in Godin v. Godin, we recognized that a claim of
fraud “upon the court” is “governed by the catch-all provision of Rule 60(b)(6)” and therefore is
not subject to the one-year limitation period. 168 Vt. 514, 518-19, 725 A.2d 904, 907 (1998)
(observing that the question was “whether the fraud alleged . . . may properly be characterized as
a fraud upon the court and therefore exempt from the one-year statute of limitations); see also
Olio v. Olio, 2012 VT 44, ¶ 17, 192 Vt. 41, 54 A.3d 510 (reaffirming that Godin “recognized a
narrow exception to the . . . [one-year] . . . rule for certain motions for relief from judgment
alleging egregious fraud on the court” under Rule 60(b)(6)). “Fraud on the court” as a basis for
relief under the catch-all provision of Rule 60(b)(6) is widely recognized. See, e.g., Carter v.
Anderson, 585 F.3d 1007, 1012 (6th Cir. 2009) (“A Rule 60(b)(6) motion is an appropriate
vehicle to bring forward a claim for fraud on the court.”); Latshaw v. Trainer Wortham & Co.,
452 F.3d 1097, 1104 (9th Cir. 2006) (“Acts of ‘fraud on the court’ can sometimes constitute
extraordinary circumstances meriting relief under Rule 60(b)(6).”); Trim v. Trim, 2007-CT-
01648-SCT (¶ 7), 33 So. 3d 471 (Miss. 2010) (“Rule 60(b)(6) provides a ‘catch-all’ provision
under which relief may be granted in exceptional and compelling circumstances, such as for
fraud upon the court.”). As we noted in Godin, Rule 60(b) also preserves an independent action
“to set aside a judgment for fraud upon the court,” although Godin was not decided on that basis.
168 Vt. at 518, 725 A.2d at 907.
¶ 14. Applying this rubric, a number of courts have set aside fraudulently obtained
parentage determinations in circumstances similar to those presented here. In re Tompkins, for
example, concerned a mother and a man named Brown who together “fabricated and filed a joint
petition to establish paternity” despite the fact that both “knew that Brown was not the biological
father.” 518 N.E.2d 500, 506 (Ind. Ct. App. 1988). While acknowledging that the fraud-on-the-
6
court doctrine had traditionally been “narrowly applied” to “egregious circumstances” involving
efforts to “improperly influence the court’s decision” or prevent a party from “presenting his
case,” the Tompkins court concluded that the facts “and their underling implications” supported
such a finding. Id. at 507. The scheme perpetrated by the parties, the court explained, had
“suppress[ed [the child’s] true paternity” and precluded an adoption proceeding where counsel
for the child might have “assert[ed] his interests.” Id. at 506-07; see also Seger v. Seger, 780
N.E.2d 855, 858 (Ind. Ct. App. 2002) (affirming judgment setting aside “paternity affidavit”
where both parties knew that man was not child’s biological father, and explaining that parentage
proceeding “is not tantamount to . . . adoption,” and there was no showing of notice to, or
consent by, child’s biological father as required in such proceeding). See generally J. Parness,
For Those Not John Edwards: More and Better Paternity Acknowledgments at Birth, 40 U. Balt.
L. Rev. 53, 99 (2010) (“Acknowledgments for nonmarital children by nongenetic fathers allow
circumvention of adoption laws, which seek to assure that when legal parentage is accorded to
men and women with no preexisting parental interests, the children’s best interests are served”).
¶ 15. In Jones v. Weller, 362 N.E.2d 73 (Ill. App. Ct. 1977), as here, both parties also
executed affidavits in support of an acknowledgment of paternity falsely stating that Weller was
the child’s biological father, and later divorced pursuant to a decree granting him parental rights.
Weller later opposed efforts by mother’s new husband to adopt the child, but the court concluded
that he lacked standing as a parent on the ground that “[b]oth parties [had] . . . committed fraud
upon the court” in misrepresenting Weller’s status as the child’s biological father. Id. at 76. As
the court explained, it was contrary to public policy “to perpetuate a fraud which was instigated
by [Weller] and consented to by [the mother],” noting that divorce proceedings were not
“intended to supplant the Adoption Act . . . to provide an optional procedure for the
establishment of parentage.” Id.; see also In re Olenick, 562 N.E.2d 293, 299 (Ill. App. Ct. 1990)
(holding that affidavit of parentage signed by mother and decedent falsely stating that both were
7
“natural parents” of child was equivalent to assertion of “biological” or “blood” relationship, and
was invalid as “a fraud on the court”).
¶ 16. The facts here present a close fit to these cases, and compel a similar conclusion.
Both parties acknowledge that they knowingly filed the VAP falsely identifying defendant as the
child’s biological father, and mother conceded that until recently the child’s biological father
“didn’t even know she existed.” As OCS correctly observes, the effect of the parties’ fraudulent
conduct was thus to “employ the VAP as a de facto adoption process, side-stepping the
requirements of [the Adoption Act], compliance with which would require notice to all interested
persons and the filing of consents to adoption, absent which a hearing would be held” in which
the court considered all of the relevant interests.3 This is a classic fraud on the court, depriving
the interested parties—including the child, the biological father, and the State as parens patriae—
their day in court. 4
¶ 17. Of course, like most courts elsewhere, we have also recognized that “the fraud-
on-the-court doctrine must be narrowly applied” lest it “become indistinguishable from ordinary
fraud, and undermine the important policy favoring finality of judgments.” Godin, 168 Vt. at
518, 725 A.2d at 907. Indeed, Godin itself involved an alleged misrepresentation of paternity—a
post-divorce claim by the putative father that the mother had failed to inform him that he was not
the biological father—but we concluded that “to the extent the mother’s conduct was fraudulent,
if at all, it constituted fraud upon plaintiff, not upon the court.” Id. (emphases added). As we
explained, there was “nothing fraudulent” in the mother’s representation that the child was “born
of the marriage” inasmuch as the law “supplied the presumption that plaintiff was the child’s
3
Indeed, as noted, supra, ¶ 3 n.1, the dissent’s concern about allowing the subsequent
disavowal of a falsely executed VAP would be obviated had the putative father here adopted the
child.
4
Although there may be shortcomings in the Parentage Proceedings Act, it is clear that it
is not intended to provide a shortcut to the adoption process. There is no apparent reason why
defendant could not have filed an adoption proceeding seeking to adopt the child.
8
natural parent,” and “the mere nondisclosure to an adverse party” or the court of facts pertinent
to a controversy do not “add up to ‘fraud on the court’ for purposes of vacating a judgment under
Rule 60(b).’ ” Id. at 519-20, 725 A.2d at 908.
¶ 18. This case, as the decisions cited above recognize, is different. Here, the fraud was
not perpetrated by one party against another, but by both parties agreeing together to perpetrate a
fraud on the court, and the judicial process, by falsely representing defendant to be the child’s
biological parent. This was not a case where a VAP was signed by the parties under a mistaken
belief that they were the child’s biological parents, or where one party was intentionally misled
by the other. See, e.g., In re B.N.C., 822 N.E.2d 616, 620 (Ind. Ct. App. 2005) (denying putative
biological father’s motion to set aside parentage affidavit and judgment based on alleged fraud
on the court where facts “failed to establish that [the signers] engaged in a deliberately planned
and carefully executed scheme to improperly influence the trial court to issue the paternity
judgment” (quotation omitted)). On the contrary, these parties knew at the time they signed the
VAP that defendant was not what he was purporting himself to be. Nor is this a case where the
record shows that a putative parent has neglected to challenge a parentage acknowledgment for
such an unreasonable length of time that it would be unconscionable to set it aside. See id. at
619 n.6 (while not deciding case on basis of laches, court noted that putative biological father
had voluntarily abandoned motion for relief from judgment in 1995 and had waited more than a
decade to renew it). Defendant admittedly left the home in 2012, when the child was no more
than sixteen or seventeen months old, and the VAP was challenged the following year. Thus,
there are no facts here to support a finding of unreasonable delay.
9
¶ 19. We conclude, accordingly, that the undisputed facts support the motion to set
aside the acknowledgment of paternity as a fraud on the court, and affirm the judgment of
nonparentage as to defendant on that basis.5
¶ 20. We also affirm the trial court’s dismissal of defendant’s action to establish
parentage. Because the “presumptive legal determination of parentage” under 15 V.S.A.
§ 307(d) remained in effect at the time he filed suit, defendant lacked standing to bring the
action. See id. § 302(a) (providing that action to establish parentage may be brought only
“where parentage has not been previously determined either by an action under this subchapter
or by adoption”). We must presume the Legislature chose its words deliberately. Robes v.
Town of Hartford, 161 Vt. 187, 193, 636 A.2d 342, 347 (1993) (“[W]e presume that the
legislature chose its words advisedly.”). Therefore, in allowing “an action to establish
parentage” only where parentage has not been previously determined by “an action under this
subchapter,” 15 V.S.A. § 302(a), we must conclude that the Legislature intended the underscored
language to mean something different from, and broader than, simply an adjudication pursuant to
an “action to establish parentage.” As discussed, the Act provides for the establishment of
parentage not only by the filing a “complaint brought under this subchapter,” id. § 303(b), but
also by the filing of a voluntary acknowledgment of parentage. Id. § 307(d). Moreover, as
discussed, an acknowledgment of paternity assumes the dignity and status of “a presumptive
legal determination of parentage upon filing . . . provided no court has previously adjudicated
parentage,” and may be challenged only pursuant to a motion for relief from judgment under
Rule 60. Id. § 307(d), (e). It is logical, therefore, to conclude that a determination of parentage
pursuant to “an action under this subchapter” includes the parentage presumption arising from a
5
The motion to set aside the VAP was filed by OCS on behalf of mother, a signatory to
the VAP; therefore, we discern no issue here relating to standing. Cf. Columbia v. Lawton, 2013
VT 2, ¶ 30, 193 Vt. 165, 71 A.3d 1218 (acknowledging some uncertainty as to nonparty’s
standing to challenge parentage judgment under Rule 60(b)).
10
VAP, and therefore that defendant lacked standing to bring his parentage complaint under
§ 302.6
Affirmed.
FOR THE COURT:
Associate Justice
¶ 21. DOOLEY, J., concurring. I agree that the action of the parties was a fraud on
the court, see Godin v. Godin, 168 Vt. 514, 527-529, 725 A.2d 904, 912-14 (1998) (Dooley, J.,
dissenting), but if this were an ordinary statutory construction case, I might be persuaded as
Justice Robinson has written in her dissent that 15 V.S.A. § 307 controls the issue of setting
aside a voluntary acknowledgement of parentage. As I have emphasized before, this is not an
ordinary statute. See Moreau v. Sylvester, 2014 VT 31, ¶ 41, 196 Vt. 183, 95 A.3d 416 (Dooley,
J., concurring). Although it ostensibly covers rights and responsibilities with respect to children
other than those connected with child support, it was passed by an act entitled “An Act Relating
to Child Support,” 1989, No. 220 (Adj. Sess.), § 30, and virtually all the aspects of that act relate
6
Defendant was barred from bringing the independent parentage action because the
VAP was in effect at the time he filed the action. The fact that we have subsequently set aside
the VAP by our holding today does not undermine this conclusion, contrary to the dissent’s
claim. As the dissent also recognizes, any new parentage action filed by defendant in the future
would need to confront the interpretation in Moreau equating the term “natural parent” in the
parentage statute with “biological” parent, 2014 VT 31, ¶ 20 n.9, although we need not address
that issue here.
We also note that this conclusion is buttressed by federal law requiring, as a condition for
receiving federal welfare funding, that states establish simple and expedited paternity
establishment procedures, both judicial and nonjudicial, including standards for voluntary
acknowledgments of paternity to serve as a “[l]egal finding of paternity.” 42 U.S.C.
§ 666(a)(5)(D)(ii). See generally V. Cacioppo, Note, Voluntary Acknowledgments of Paternity:
Should Biology Play a Role in Determining Who Can Be a Legal Father, 38 Ind. L. Rev.. 479,
486 (2005) (summarizing federal rules and observing that, “in creating a non-judicial means for
fathers to obtain legal paternity, Congress devised a way to save time and money by eliminating
the need to go before a court to receive a final paternity judgment”).
11
only to child support. The section was added to our Parentage Act, which I have noted before,
was intended “to do [nothing]. . . other than provide a speedy recovery of child support.” Miller-
Jenkins v. Miller-Jenkins, 2006 VT 78, ¶ 44, 180 Vt. 441, 912 A.2d 951. Despite its language,
its application to determine rights of custody and visitation is virtually an unintended
consequence. For that reason, in my view, it lacks adequate protections to safeguard the best
interest of the child and ensure that the acknowledgement is not misused. For that reason, I favor
construing the statute quite narrowly and relying on powers outside the statute, if available, to
ensure an acceptable result.
¶ 22. Now comes the broken record. The continuing failure to enact a real parentage
act is the largest and most significant deficiency in our statutory scheme regulating the rights and
responsibilities of family members where the interests of children are involved. I explained
some of the consequences of this failure in my concurring opinion in Moreau. I also explained
that there are models from which we can draw our own modern and complete parentage act,
particularly the Uniform Parentage Act. This case is another example of the consequences of
that failure. I again urge the Legislature to meet this critical need.
Associate Justice
¶ 23. ROBINSON, J., dissenting. In its elevation of biological connection between
parent and child over our ordinary rules regarding the finality of judgments, the majority has
adopted a legal rule that is at odds with our prior case law, and is squarely contrary to the best
interests of Vermont’s children.
¶ 24. Before addressing the majority’s legal reasoning, I note two considerations
relating to the framing of this case. First, it’s unfortunate, but not surprising, that this case arises
in the context of allegations by Ms. McGee (mother) against Mr. Gonyo (putative father) that
12
paint putative father in an unfavorable light. It’s not surprising, because a biological 7 mother,
who has previously signed a voluntary acknowledgment of the parenthood of an individual about
whom she has nothing bad to say, is far less likely to seek to cut off that individual’s parental
relationship with their child than one who has become disaffected with the other acknowledged
parent.8 It’s unfortunate because I fear that the specific factual circumstances of this case might
cloud the legal analysis.
¶ 25. The majority has apparently established a per se rule that two parents who sign a
voluntary acknowledgment of parentage (VAP), knowing that one of them is not biologically
related to the child, have committed a fraud upon the court such that the acknowledgment may
be set aside by the court at any time; this rule will apply with equal force in a range of factual
settings in which its application may seem far more inequitable to all concerned. 9 If putative
7
I use the term “biological” to describe mother’s relationship to the child because that is
the term that this Court, and many other courts, have commonly used. I acknowledge that the
term is imprecise: it does not clearly signal whether the significant characteristic of the parent-
child connection is that the parent bore the child or, rather, is that the child carries the parent’s
DNA. See Moreau v. Sylvester, 2014 VT 31, ¶ 46 n.19, 196 Vt. 183, 95 A.3d 416 (Robinson, J.,
dissenting) (recognizing that “biological” connection can encompass two related but distinct
relationships genetic and gestational). In cases in which a child is conceived by in vitro
fertilization using an egg from someone other than the gestational parent, the gestational parent
may not be a genetic parent. This case does not require us to drill down further; mother is both a
gestational parent and a genetic parent; putative father is neither.
8
See Moreau, 2014 VT 31, ¶ 46, n.18 (Robinson, J., dissenting) (noting that abuse
allegations by mother against putative father are immaterial to parentage analysis, and that even
if court legally recognized father as children’s parent, it could deny him parental rights and
responsibilities and even parent-child contact if facts warranted such ruling).
9
I don’t mean to suggest that the consequences of the majority’s analysis are not
inequitable in this case. Given that the trial court resolved this case on the basis that putative
father is not the child’s biological father, I accept for purposes of this analysis father’s testimony
that: (1) mother and putative father held him out to each other, their child, and the world as the
child’s father; (2) putative father lived with mother and helped raise the child for nearly the first
year and a half of the child’s life; (3) after putative father and mother separated he maintained
frequent contact with the child for the next year; (4) putative father is the only father child has
ever known; (5) putative father has provided parental love and care for the child and stands ready
to continue doing so; and (6) putative father has provided material support for the child and is
prepared to financially support her as a parent. Given these assumptions, the loss to both
13
father were a model parent, and had served for years as the child’s primary caregiver and sole
means of support, mother could nonetheless unilaterally take action to sever his parent-child
relationship to accommodate a new partner in her life. Likewise, if putative father had held
himself out to the world as the child’s parent for years, but then sought to sever his legal
obligations because he won the lottery and wanted to avoid paying increased child support, or he
wanted to get out from under a child-support arrearage, he could do so. The majority’s broad
exception to our ordinary rules of finality leaves both parties to a VAP with the open-ended
power to avoid the consequences of that commitment, and the accompanying legal judgment,
when it serves their own self-interest, without regard to the best interests of the child for whom
they had agreed to share responsibility.
¶ 26. Second, the status of the supposed biological father in this case is relevant. This
is not a case in which the court is confronted with a claim by the supposed biological father
seeking recognition of his parental status in lieu of or in addition to an already legally recognized
parent. Instead, this is a case in which mother––who previously signed and filed with the
Department of Health a VAP acknowledging putative father as the child’s father––has decided
that she now wants to disavow that prior acknowledgment. The distinction is significant. As set
forth more fully below, if the supposed biological father sought to establish his parental rights,
he would be entitled to do so to the extent that his claims of parentage enjoyed constitutional
protection. Columbia v. Lawton, 2013 VT 2, ¶ 30, 193 Vt. 165, 71 A.3d 1218. But he has not.
And mother does not have standing to assert the claims of the supposed biological father.
¶ 27. All we know about the supposed biological father is that: (1) mother alleges him
to be the child’s biological father; and (2) he has made no effort to pursue parental rights for this
child even though several months before the hearing in this case mother sent him a letter, a text,
putative father and child of legal protection for their established bond and the loss to child of the
added security of having two parents responsible for her care and support is distressing.
14
and an email informing him that she believed him to be the child’s biological father. Mother had
this to say about the supposed biological father:
[H]e is a good guy, what I knew of him. We were only dating
maybe four months before I got pregnant. We did get in one fight,
and the cops were called, and, you know, I haven’t seen him since.
You know, I never really pushed the matter, so he never––he
doesn’t—not till now didn’t even know she existed.
At this stage, we cannot assume that a ruling denying putative father’s parental status will clear
the way for a ruling assigning parentage of this child to someone else. The person mother now
apparently names as the child’s biological father has not pursued his potential parental rights,
and we do not know whether he is, in fact, the child’s biological father. We do not even know
whether the child has another living biological parent at all, let alone a parent with any
inclination to assume a parental role of any sort. All we know with confidence is that the trial
court’s ruling leaves this child, at least for now, and possibly indefinitely, with only one legally
recognized parent—an outcome we should generally disfavor.
I.
¶ 28. With these considerations in mind, I turn to the critical flaws in the majority’s
reasoning. This is not simply another nonbiological parenting case. See, e.g., Moreau, 2014 VT
31. This case involves the finality of a final judgment of parentage in the face of a claim by one
of the parties to the original proceeding, more than two years later, that an adjudicated parent
shares no biological connection with the child. In considering this issue—a close cousin to a
question this Court has faced before––the majority has dialed back this Court’s established
commitment to finality in a context in which that finality is most, not least, urgent.
¶ 29. I agree with the majority that a voluntary acknowledgment of parentage that is not
rescinded within sixty days operates as a judgment that may be challenged only pursuant to Rule
60 of the Vermont Rules of Civil Procedure. 15 V.S.A. § 307(f). In that sense, it has the same
15
effect as a judicial determination of parentage in a parentage action, or a judgment of parentage
intrinsic to a final divorce judgment. The Legislature has been clear about that.
¶ 30. We have emphasized that challenges to a final judgment on the basis of fraud
must be brought within one year of the judgment. See V.R.F.P. 4(a)(1) (making Rules of Civil
Procedure applicable to parentage actions unless otherwise provided); V.R.C.P. 60(b)(3)
(providing that motion to set aside judgment on the basis of fraud must be brought within a year).
And we have held that relief under Rule 60(b)(6) is available only when the ground justifying
relief is not encompassed within any of the first five classes of the rule. See Olio v. Olio, 2012
VT 44, ¶ 14, 192 Vt. 41, 54 A.3d 510. “Otherwise, Rule 60(b)(6) would serve as a ‘backdoor’ to
circumvent the one-year time limit in subsections (b)(1)-(3).” Id. (quotation omitted).
Accordingly, once a year has passed since a final judgment, a party cannot seek to set aside that
judgment on the ground that it was procured through fraud. Id. ¶¶ 15-16. We have recognized
that this doctrine may lead to “unfair results in cases where a successfully concealed fraud
cannot be remedied under Rule 60(b)(3) after the judgment is in place for more than one year,”
but have concluded that apart from certain egregious cases, the “balance between the competing
imperatives of finality of judgments, on the one hand, and justice in every case on the other . . .
our solicitude for finality must trump.” Id. ¶ 22.
¶ 31. In this case, the majority invokes a narrow exception to this principal for instances
of “fraud on the court.” We first recognized, but declined to apply this narrow exception in the
case of Godin v. Godin, 168 Vt. 514, 518-20, 725 A.2d 904, 907-08 (1998). In Godin, we
commented that the U.S. Supreme Court’s decision in the case of Hazel-Atlas Glass Co. v.
Hartford-Empire Co., 322 U.S. 238 (1944), allowed a motion to set aside a judgment pursuant to
Rule 60(b)(6) where “an attorney for the Hartford-Empire Glass Company fabricated an article,
claimed it was authored by a former president of the Glass Workers’ Union, and later used the
falsified article in a patent case before an appellate court to receive a favorable judgment.” 168
16
Vt. at 518. Characterizing the fraud as “a wrong against the institutions set up to protect and
safeguard the public,” Hazel-Atlas, 322 U.S. at 246, and distinguishing the fraud underlying the
judgment in question from that underlying a judgment secured through perjured testimony, the
Court concluded that the “tampering with the administration of justice” by counsel for Hartford-
Empire justified the court’s exercise of equitable power to set aside the “fraudulently begotten
judgment.” Id. at 245-46.
¶ 32. This Court offered the following analysis of the evolution of the “fraud on the
court” doctrine following the Hazel-Atlas decision:
Since Hazel-Atlas, courts and commentators alike have observed
that the fraud-on-the-court doctrine must be narrowly applied, or it
would become indistinguishable from ordinary fraud, and
undermine the important policy favoring finality of judgments. “If
fraud on the court were to be given a broad interpretation that
encompassed virtually all forms of fraudulent misconduct between
the parties, judgments would never be final and the time
limitations of Rule 60(b) would be meaningless.” 12 J. Moore, et
al., Moore’s Federal Practice ¶ 60.21[4][c], at 60-55 (3d ed. 1997).
Thus, the doctrine has generally been reserved for only the most
egregious misconduct evidencing, as in Hazel-Atlas, an
unconscionable and calculated design to improperly influence the
court. See, e.g., Wilson v. Johns-Manville Sales Corp., 873 F.2d
869, 872 (5th Cir. 1989) (fraud on the court requires showing of
unconscionable plan or scheme designed to improperly influence
court in its decision). As one federal court has explained, the
narrow fraud-on-the-court concept should “embrace only that
species of fraud which does or attempts to, defile the court itself, or
is a fraud perpetrated by officers of the court so that the judicial
machinery cannot perform in the usual manner its impartial task of
adjudging cases.” As another court has observed: “A finding of
fraud on the court is justified only by the most egregious
misconduct directed to the court itself, such as . . . fabrication of
evidence by counsel, and must be supported by clear, unequivocal,
and convincing evidence.”
Godin, 168 Vt. 518-519, 725 A.2d 904, 907-08 (citation omitted).
¶ 33. In Godin, we considered a motion to require genetic testing to determine the
paternity of a child six years after the final divorce decree that deemed the child to be a child of
the marriage. The husband invoked the fraud-on-the-court doctrine in seeking to set aside the
17
paternity judgment implicit in the final divorce order, arguing that wife had committed fraud on
the court, in addition to fraud against him, by representing in her divorce pleadings that he was
the father of the child in question. Because “the mere nondisclosure to an adverse party and to
the court of facts pertinent to a controversy before the court does not add up to ‘fraud upon the
court,’ for purposes of vacating a judgment under Rule 60(b),” Godin, 168 Vt. at 520, 720 A.2d
at 98 (quotation omitted), this Court rejected the husband’s fraud-on-the-court argument and
declined to allow the Rule 60(b)(6) motion.10
¶ 34. In analyzing the husband’s claim that the facts of the case presented “special
circumstances” warranting the exercise of the court’s equitable jurisdiction despite the passage of
time and application of res judicata, this Court considered the policy implications of allowing
belated challenges to parentage determinations predicated on the absence of a biological
connection. Id. This Court explained, “[e]ven more compelling, in our view, are the
fundamental policy concerns that require finality of paternity adjudications.” Id. at 521, 725
A.2d at 909. I quote the Court’s discussion of these policy concerns at length because they are
directly relevant to this case:
[T]he State retains a strong and direct interest in ensuring that
children born of a marriage do not suffer financially or
psychologically merely because of a parent’s belated and self-
serving concern over a child’s biological origins. These themes
underlie the conclusion, reached by numerous courts, that the
public interest in finality of paternity determinations is compelling,
and that the doctrine of res judicata therefore bars subsequent
attempts to disprove paternity. See, e.g., Hackley v. Hackley, 395
N.W.2d 906, 913-14 (Mich. 1986) (best interests of child in
maintaining stability and preventing psychological trauma must
prevail over any unfairness to father resulting from denial of
challenge to paternity nine years after judgment of divorce);
Richard B., 625 N.Y.S.2d at 130 (“unequivocal trend . . . has been
to zealously safeguard the welfare, stability and best interests of
10
The majority asserts that “in Godin v. Godin we recognized that the plaintiff’s claim
of fraud ‘upon the court’ is ‘governed by the catch-all provision of Rule 60(b)(6)’ and therefore
is not subject to the one-year limitation period.” Ante, ¶ 13. That characterization of Godin is
flatly wrong. The court recognized the fraud-on-the-court doctrine, but then declined to apply it
in that case.
18
the child by rejecting untimely challenges affecting his or her
legitimacy”) (quoting Ettore I., 513 N.Y.S.2d at 738); JRW & KB
v. DJB, 814 P.2d 1256, 1265 (Wyo. 1991) (“Because of the
potentially damaging effect that relitigation of a paternity
determination might have on innocent children, the doctrine of res
judicata and collateral estoppel are rigorously observed in the
paternity context.”)
....
Although we understand the plaintiff’s interest in ascertaining the
true genetic makeup of the child, we agree with the many
jurisdictions holding that the financial and emotional welfare of the
child, and the preservation of an established parent-child
relationship, must remain paramount. Where the presumptive
father has held himself out as the child’s parent, and engaged in an
ongoing parent-child relationship for a period of years, he may not
disavow that relationship and destroy a child’s long-held
assumptions, solely for his own self-interest. See Ettore I, 513
N.Y.S.2d at 740 (holding father’s “self-serving” effort to disavow
paternity to be inconsistent with policy of protecting innocent
children from irreparable loss of financial security and paternal
bonds. Whatever the interests of the presumed father in
ascertaining the genetic “truth” of a child’s origins, they remain
subsidiary to the interests of the state, the family, and the child in
maintaining the continuity, financial support, and psychological
security of an established parent-child relationship. Therefore,
absent a clear and convincing showing that it would serve the best
interests of the child, a prior adjudication of paternity is
conclusive.
Godin, 168 Vt. at 522-24, 725 A.2d at 910.
¶ 35. The majority’s opinion flies in the face of Godin in a couple of ways. In Godin
we held that the wife’s misrepresentation (by omission) that the husband was not the child’s
biological father did not amount to a fraud on the court. This holding is difficult to square with
the majority’s conclusion here that mother and putative father’s misrepresentation on a VAP
form filed with the Department of Health is so unconscionable and so undermines the legal
system as to render it a fraud on the court. The majority tries to distinguish the situation here by
emphasizing that in this case both parties made misrepresentations on the VAP form, instead of
one party deceiving the other, as in Godin. It’s not clear why that makes this circumstance so
much more odious. In Godin, an innocent party arguably suffered a tremendous injustice as a
19
result of one party’s misrepresentation to the other party and the court; in this case, both parties
signed and filed the VAP with the Department of Health with their eyes wide open. There is no
allegation that mother was under duress or undue pressure from putative father. If anything, the
deception in Godin was more unconscionable.
¶ 36. The fact that the deception here left an unrecognized biological parent without
notice likewise doesn’t distinguish the two cases. In Godin, there presumably was a biological
father whose parental rights were potentially undermined by the court’s enforcement of the
existing paternity judgment. In this case, the alleged biological father has received notice, and
has had an opportunity to step forward. He hasn’t done so. If anything, the harm to third parties
not before the court was greater in Godin, where the actual biological father was apparently
never put on notice of the existence of the child or the proceedings concerning that child’s
parentage.
¶ 37. This is not a case in which an officer of the court falsified evidence presented to
the court; it was a filing with the Department of Health by unrepresented individuals. It’s
impossible to come up with a principled distinction between these facts and any other case in
which a party lies, secures a court order, and is then found out. See also Olio, 2012 VT 44, ¶ 20
(holding that husband’s deliberate concealment of substantial bank account and affirmative
misrepresentations to wife and court in course of doing so, “falls on the ‘ordinary fraud’ side of
the boundary and does not qualify for the narrow exception . . . recognized in Godin.” In Godin,
this Court held that the wife’s knowing misrepresentation to the court that the husband was the
child’s biological father was not so unconscionable, and did not so undermine the judicial
process as to trigger the fraud-on-the-court exception. Given that, I cannot see how the parties’
conduct here does fall within that narrow exception.
¶ 38. Moreover, in light of this Court’s discussion in Godin, this is a strange context in
which to extend the boundaries of the fraud-on-the-court doctrine. The majority has essentially
20
concluded that recognition of putative father’s legally acknowledged parental relationship with
this child in the absence of a biological connection is so unconscionable that the absence of a
biological connection trumps the ordinary principles of finality. As we noted in Godin, the
policies favoring finality are especially strong in the context of parentage determinations. 168
Vt. at 521, 725 A.2d at 909; see also St. Hilaire v. DeBlois, 168 Vt. 445, 448, 721 A.2d 133, 136
(1998) (noting that “ ‘there is no area of the law requiring more finality and stability than family
law’ ” (internal alteration omitted and quoting Hackley v. Hackley, 395 N.W.2d 906, 914 (Mich.
1986))). In the absence of a competing parent with a constitutionally protected right, I don’t see
what policy considerations could possibly support a rule of law that would allow a nonbiological
parent who has signed a VAP, or the biological parent who has also signed that VAP, to disavow
that decision whenever their personal interests change, without regard to the best interests of the
child. And the majority does not deal with this Court’s express holding in Godin that “absent a
clear and convincing showing that it would serve the best interests of the child, a prior
adjudication of paternity is conclusive.” 168 Vt. at 523-24.11 It’s not clear whether the majority
has repealed this express holding by implication, or has simply disregarded it in this case.
¶ 39. In addition, I cannot reconcile the majority’s analysis here with our much more
recent analysis in Columbia v. Lawton, 2013 VT 2, ¶ 30, 193 Vt. 165, 71 A.3d 1218. In that
case, as in this case, a child’s biological mother legally stipulated to a putative father’s
11
The fact that the judgment in question in Godin arose from a presumption of parentage
in the context of a marriage does not meaningfully distinguish it from a judgment arising from a
VAP for the purposes of its finality. The Legislature has made clear both that the VAP is final
and binding subject only to Rule 60(b) review, 15 V.S.A. § 307(f), and that it intends to extend
the same legal protections to children “regardless of whether the child is born during civil
marriage or out of wedlock.” Id. § 301. Any attempt to distinguish this Court’s approach to
finality in the context of parentage determinations implicit in a final divorce judgment versus in
the context of a VAP would be directly contrary to the Legislature’s stated intent. See In re
B.L.V.B., 160 Vt. 368, 373, 628 A.2d 1271, 1274 (1993) (construing adoption statute with
recognition that Legislature intended to promote best interests of children).
21
parentage.12 Subsequently, another man (Mr. Columbia) filed a parentage action claiming to be
the child’s actual biological father. The trial court concluded that Mr. Columbia lacked standing
to seek an order recognizing his parentage since another individual was already legally
adjudicated to be the child’s parent. We affirmed the trial court’s application of the parentage
statute, but noted that if Mr. Columbia’s claim of parentage was constitutionally protected, he
would be entitled to pursue it despite the statutory standing limitations. Id. ¶ 26. We concluded
that even if genetic testing determined Mr. Columbia to be the child’s biological parent, he did
not have a constitutionally protected right to parent the child that would overcome the judgment
adjudicating another man to be the child’s father. Id. ¶ 27. We explained that an individual’s
status as a parent requires consideration of a host of factors, including but not limited to a child’s
genetic connection, or lack thereof. Id. ¶ 29. Given that Mr. Columbia had not had any contact
or relationship with the child, he did not formally assert his parentage for more than two years
after the child’s birth, he had not assumed any responsibility for the child’s emotional or material
well-being, and another legally adjudicated father had lived in a family relationship with the
child, we concluded that the case was not close. Id. ¶ 29. The only indicia of parenthood Mr.
Columbia could claim was a possible genetic connection to the child. Id. ¶ 28.
¶ 40. The upshot of our analysis in Columbia was that the judgment of parentage in
favor of the child’s first adjudicated father, who we assumed for the purposes of that motion was
not, in fact, the child’s biological parent, carried the day, even in the face of a claim by another
man who was, in fact, the child’s biological father. Id. ¶ 29. And we reached this even though
the assumed actual biological father affirmatively asserted his parental rights through a parentage
action just over two years from the child’s birth. Id. ¶ 27. Columbia was a much stronger case
than this one for setting aside a final judgment of parentage because an actual alternative parent
12
In Columbia, the stipulation was incorporated into a court order. Again, given that the
Legislature has provided that an unrescinded VAP has the status of a court adjudication of
parentage, 15 V.S.A. § 307(f), this distinction is immaterial.
22
was seeking to displace the adjudicated parent. Yet in that case, we upheld the existing
parentage judgment in favor of a father who we assumed was not in fact the child’s biological
father, and left the child’s actual (alleged) biological father with no recourse. Id. I cannot square
our decision in Columbia with the majority’s decision here.
¶ 41. That I have a different view from the majority concerning the legal determinants
of parenthood under Vermont’s statutes and case law is no secret. See Moreau, 2014 VT 31,
¶¶ 44-86 (Robinson, J., dissenting). But I emphasize that this case does not turn on the question
of who qualifies as a legal parent under our laws. The primary question here involves the finality
of parentage judgments. The majority’s open-ended conclusion that a VAP, signed by two
parents who know that one of them is not the child’s biological parent, is subject to challenge
pursuant to Rule 60(b)(6) without a time limit is inconsistent with our past decisions and the
Legislature’s expressed policy of finality. It will also, no doubt, have unintended consequences.
Almost thirty percent of the children born in Vermont since 1997 have had their parenthood
established by a VAP. See K. Schatz, Annual Report on Voluntary Acknowledgment of
Parentage Submitted to the Senate Committee on Health and Welfare and the House Committee
on Human Services (2015). That’s tens of thousands of children whose parentage is established
by a VAP. See Vt. Dep’t of Health & Human Servs., 2011 Annual Vital Statistics Report, tbl. A-
1, Vital Statistics Summary of Vermont 1857-2011 (Oct. 1, 2015),
http://healthvermont.gov/research/stats/2011/documents/2011TBLA1.pdf [http://perma.cc/QZ36-
VZ2W]. Families organize themselves in reliance on these VAPs. The Office of Child Support
relies on them to ensure that children are getting the support they need, and parents are paying
the support they should.
¶ 42. Even if only one percent of those cases are similar to this one in that both parents
knew that one of them was not biologically related to the child, the majority’s decision today
leaves hundreds of children, and their parents, vulnerable to a change of heart by either parent—
23
an outcome decidedly at odds with the best interests of the children our parentage statutes are
designed to protect. See 15 V.S.A. § 301 (“It is the policy of this state that the legal rights,
privileges, duties and obligations of parents be established for the benefit of all children,
regardless of whether the child is born during civil marriage or out of wedlock.”). A father who
has signed and filed a VAP, and has stepped up to the plate and supported a child for years can
back out, invoking Rule 60(b)(6) and the majority’s decision in this case, leaving the other
parent, or the Office of Child Support, with no alternative source of support for the child.13 A
mother who no longer wishes to deal with the partner with whom she formerly parented a child
can disavow the VAP, severing the longstanding parent-child bond with the other parent––even
though she invited and legally agreed to the co-parenting arrangement long ago, and even if her
actions leave that child with only one parent. Wholly apart from my views about the definition
of a parent, I would not do violence to the goal of finality that runs through our case law—most
especially when it comes to legally established parent-child relationships.
II.
¶ 43. The logic of the majority’s analysis of the independent parentage claim in this
case escapes me. Having just set aside the VAP signed and filed by mother and putative father,
the court concludes that putative father cannot pursue a parentage action because the existence of
the VAP (that the court has just set aside) defeats a new parentage action. Ante, ¶ 20. If there is
13
For this reason, I am perplexed that the Office of Child Support (OCS) advocated a
position so clearly at odds with its institutional interests, and the public interests that it
represents. See 33 V.S.A. § 4101(b) (“The paramount interest of the state of Vermont is the
welfare of its children. The establishment and enforcement of family support obligations is
therefore an important function in this regard. The Office of Child Support in carrying out its
responsibility shall be guided by the best interests of the child, but not the economic interests
exclusively in an action for child support.”); Powers v. Office of Child Support, 173 Vt. 390,
397, 795 A.2d 1259, 1265 (2002) (“Vermont’s statutory scheme was not intended to benefit
individual children and custodial parents, but was intended to benefit Vermont society as a
whole. Vermont law does not create a specific duty owed by OCS to any particular groups of
persons. . . . [I]n bringing support actions on behalf of families, OCS is required by statute to ‘be
guided by the best interests of the child for whose benefit the action is taken.’ ” (quoting 33
V.S.A. § 4106(f))).
24
no VAP, because the court has set it aside, it cannot be a bar to putative father’s parentage
action. These are alternative legal theories. See, e.g., Stamp Tech, Inc. ex rel. Blair v.
Ludall/Thermal Acoustical, Inc., 2009 VT 91, ¶ 16, 186 Vt. 369, 987 A.2d 292 (noting party “is,
of course, entitled to plead different legal theories in the alternative”).
¶ 44. On the merits, I won’t belabor the independent-statutory-action issue. I’ve laid
out my views in detail recently enough. See Moreau, 2014 VT 31, ¶¶ 44-86 (Robinson, J.,
dissenting). As noted above, I believe the majority’s decision in this case represents another
significant step backward. The majority ascribes so much significance to the biological
connection between parent and child, or lack thereof, that this factor not only eclipses all other
factors in the analysis, but also renders longstanding established judgments a nullity.
¶ 45. But I do note the ways in which putative father’s case for parentage is stronger
than the father in the Moreau case. A factor that this Court and other courts have identified as
among the most significant in determining whether an individual is a child’s legal parent is the
intentions and expectations of the putative parent and the established legal parent. See, e.g.,
Miller–Jenkins, 2006 VT 78, ¶¶ 56-57, 180 Vt. 441, 912 A.2d 951 (concluding putative mother
was child’s parent because “it was the expectation and intent of both [mothers] that [putative
mother] would be [child’s] parent” and noting “[w]e adopt the result in this case as a matter of
policy, and to implement the intent of the parties.”); Godin, 168 Vt. at 523, 725 A.2d at 910
(“Where the presumptive father has held himself out as the child’s parent, and engaged in an
ongoing parent-child relationship for a period of years, he may not disavow that relationship and
destroy a child’s long-held assumptions, solely for his own self-interest”); see also Moreau, 2014
VT 31, ¶¶ 69-75 (Robinson, J., dissenting) (collecting cases from other jurisdictions discussing
determinants of parentage).
¶ 46. This is not a case in which, in the course of going about their lives without much
reflection, the parties have fallen into a pattern of conduct that gives rise to a parentage claim on
25
the part of a nonbiological parent by virtue of his established bond with the child, his role in the
child’s life, and the parties’ implicit representations to one another and the outside world
concerning the status of the nonbiological parent. Rather, in this case, the parties could not have
expressed their intentions and expectations with respect to their respective roles and status
concerning this child any more clearly. Both putative father and mother signed and filed with
the state a document acknowledging father’s parentage. At the top, the document states:
Parentage creates specific legal obligations. . . . You should seek
legal advice before signing this form if you have any questions or
if you are confused about your rights and responsibilities. Further,
information about the legal rights and responsibilities of a parent is
available on the back of this form. The legal rights and
responsibilities of a parent are serious, and you should not sign this
form unless you understand them.
The back of the page describes the consequences of the acknowledgment, including the fact that
both parents have the right to seek parental rights and responsibilities and both are financially
responsible for the child. Both parties signed this form within ten days of the child’s birth. In
that sense, this case is much more like Godin than Moreau. In fact, it’s a stronger case than
Godin. In Godin the nonbiological father’s parental status arose as a corollary to the
nonbiological father’s marital relationship with mother. In this case, mother and putative father
directly addressed the issue and memorialized their expectations in a legal document specifically
relating to the child, and they filed the document with the Department of Health.
¶ 47. Mother clearly expressed her intention from the outset to recognize putative father
as the child’s legal father, and putative father clearly expressed his intention from the outset to
accept that responsibility. Putative father actually exercised that responsibility and acted as a
parent to this child for over two years. No other claimant has come forward seeking to assume
the responsibilities of parentage. Given these factors, I believe that putative father is entitled to a
hearing and findings applying the factors this Court identified in Miller-Jenkins, 2006 VT 78,
26
¶ 56, as well as other factors we have applied in similar cases, see Moreau, 2014 VT 31, ¶¶ 63-68
(Robinson, J., dissenting).
III.
¶ 48. I direct these final remarks to the Legislature rather than the majority. I join
Justice Dooley in strongly urging the Legislature to take up these issues. Vermont was once a
national leader in applying our laws to promote the best interests of children in the context of
evolving family structures. See, e.g., In re B.L.V.B., 160 Vt. 368, 373, 628 A.2d 1271, 1274
(1993) (construing step-parent adoption law to allow adoption by unmarried partner of children’s
legal parent); Baker v. State, 170 Vt. 194, 223, 744 A.2d 864, 885 (1999) (recognizing that
exclusion of same-sex couples from the legal benefits, protections and obligations of civil
marriage violates the Vermont Constitution); Miller-Jenkins, 2006 VT 78, ¶¶ 56-57 (recognizing
parental status of civil union partner of parent of child conceived through donor insemination).
Given that, it’s odd that we are now behind the curve in failing to address a diverse range of
challenging family law issues that have arisen as family structures in our society have continued
to evolve.
¶ 49. New legislation concerning parentage would enable the Legislature to identify
and communicate its intentions with respect to the various policy issues impacting the best
interests of children, would provide clarity for courts struggling with these issues, and would
ultimately benefit the children of Vermont.14
Associate Justice
14
For example, this case would have been easier under the Uniform Parentage Act
(2000). The rescission period with respect to the acknowledgement would have expired after the
sixty-day period following the acknowledgement, or before the first hearing to adjudicate an
issue relating to the child, whichever happened first. Unif. Parentage Act § 307 (Unif. Law
Comm’n 2000) (amended 2002). Thereafter, mother and putative father could have sought to
challenge the acknowledgment only on the basis of fraud, duress, or material mistake of fact, and
only if the challenge was brought within two years after the acknowledgment.
27