Child Support: Paternity Issues - Retroactivity
Severely belated paternity determinations aren’t just for the Maury Povich Show anymore. The Tennessee Court of Appeals recently heard a case where the mother of a five year-old child filed a petition for paternity against the man who had been her paramour during her recently failed marriage. The child was born to the mother in November of 2000 and she held out to her husband that he was the father of the child until DNA testing conducted during the divorce in March of 2005 excluded the husband as a possible father. The mother filed the petition for paternity against the paramour in September of 2005, alleging that the two had engaged in an affair for approximately ten years. DNA testing revealed that the paramour was indeed the father of the five year-old. In July of 2007, the trial court entered an order naming him the father. The ensuing award of child support was a point of contention.
In a situation like the one in the instant case, where the paternity of a child is established long after the child’s birth, the Tennessee child support guidelines create a presumption that child support and medical support for the benefit of the child will be awarded retroactively to the child’s birth. The mother thought this would be appropriate in this case, but the trial court disagreed. T.C.A. section 36-2-311(a)(11)(A) lists three bases for possible deviation from the presumption that support should be awarded retroactively to the child’s birth:
- "The extent to which the father did not know, and could not have known, of the existence of the child, the birth of the child, his possible parentage of the child or the location of the child;
- The extent to which the mother intentionally, and without good cause, failed or refused to notify the father of the existence of the child, the birth of the child, the father's possible parentage of the child or the location of the child; and
- The attempts, if any, by the child's mother or caretaker to notify the father of the mother's pregnancy, or the existence of the child, the father's possible parentage or the location of the child.”
The statute also provides that the court may consider “equity between the parties” in determining whether to rebut the presumption that support should be retroactive to birth. The Court found many reasons to rebut the presumption in this case: the mother held her husband out as the child’s father until the divorce, the husband supported the child until the divorce, and the mother had given the paramour no legitimate reason to believe he was the child’s father. The Court determined that it would not be fair to the biological father to force him to pay child support retroactively to the child’s birth given the circumstances. The Court thus awarded child support retroactive only to the date of the filing of the petition for paternity.
Tennessee’s child support guidelines help to ensure that the best interest of the child is served by the child support system while still being fair to interested parties. In the instant case, the Court of Appeals refused to effectively punish the paramour for the dishonest conduct of the mother where the child had been adequately supported and cared for during the period in which the mother held the husband out as the child’s father. Tennessee law imposes an obligation on biological parents to care for their children from birth, regardless of their custodial relationship with them, but it will not allow one parent to fraudulently or deceptively deprive the other of the knowledge that they have a child or the opportunity to be a parent to the child and then later try assert that support is owed by the nature of the biological relationship.
Sources: State ex rel. Kennamore v. Thompson, 34 TAM 38-12,8/27/09, WS, Stafford, 9 pages.; T.C.A. section 36-2-311.
