WEBVTT
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SJAC-13295,
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in the matter of an impounded case.
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Okay, Attorney Lord.
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Good morning.
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May it please the court.
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My name is Buffy Lord.
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I'm from Donovan O'Connor & Dodig,
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and I am here representing the biological father.
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We are asking
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that the court reverse the trial court judgment,
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and remand the matter for further proceedings,
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including confirmatory DNA testing
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and a hearing and determination
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as to the parental rights and obligations
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of all three parents at issue in this matter.
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The biological father in this case has standing
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to proceed under chapter 209C,
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or 215, because the child was born out of wedlock,
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and there are complaints filed under both chapters.
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Is there a reason, with regard to the timing,
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why this is happening now?
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It's not as if he didn't know about the child.
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That is correct.
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He did know that Mother had a child.
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Yep.
In fact, he and mother
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share a child together.
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At the time the child was born,
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mother expressed to biological father
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that he was not the father,
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and that, in fact, somebody else was.
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Did he ever, like, ask the next question;
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"How do you know?"
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He was aware that she'd engaged in sexual congress
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with other men.
No, I'm saying-
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Oh!
"How do you know
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it's not me? (Attorney Lord laughs) How do you know
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I'm not the father?"
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(Chief Justice Budd laughs)
Yes, your Honor,
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I believe that he left the implication as to the timing
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to the person who in fact has the biology
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to know the likelihood
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of conception based upon-
Oh, he didn't ask
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the next question.
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I don't believe he asked
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the particular day she thought she conceived.
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Well, no, I don't mean for,
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I just mean (sighs),
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I don't think you have to ask,
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"What day did you conceive?"
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to be more curious about, you know, is there a chance-
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I'd like to hear more.
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Yes.
You know,
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if I might be the father,
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I'd like to hear more, other than,
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"No, you're not the father."
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Yes, your Honor.
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And I think in this case,
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one of the things that I would point out is that
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he had reasonable reliance on her.
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You know, she admitted that she'd had intercourse
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with other people,
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she had had a child with him before in the past,
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and when asked if he was the father,
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she in fact answered in the affirmative.
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So I think that it was reasonable for him
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to believe that she would tell him the truth.
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[Chief Justice Budd] And the truth
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as she believes it to be,
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or just because she-
I think the truth
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as she believes it to be, your Honor.
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At the time,
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and as you can see from the history set forth in our brief,
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she in fact thought that there were two other candidates
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that presented a more likely option.
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Our client,
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I don't know that the record knows
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that he knew that there were three other candidates.
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The record does not indicate
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that he had any knowledge at any point
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that she in fact tested and excluded other people,
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which then, of course,
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I think would increase the chance
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that maybe he should have asked more.
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But if you don't know-
But if he'd wanted
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to find out if he were the dad,
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he could have absolutely done so, right?
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You know, and that's,
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you know, we want people who may be dads
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to come forward,
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and he had a way of doing it at the time,
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and he knew he was in the ballpark of nine months,
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right?
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He certainly could have found out whether he was dad.
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Your Honor, he could have
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filed a complaint for parentage-
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If he'd wanted to make sure, he could have,
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you know.
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He wasn't (laughs) looking to find out
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whether he was or he wasn't, right?
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I think that
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I would be hard pressed to say that he took her to court.
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You know, he did not do those things.
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He relied on her representations.
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I think he was reasonable
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to do so-
With,
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I'm sorry, go ahead, finish.
And I would say that,
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you know, to the extent
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that he is now precluded from coming forward,
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because somebody signed an acknowledgement of parentage
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that they knew to be
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inaccurate.
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That was one,
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my other question is,
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signing one of these VAPs,
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is it a statement of biological parenthood,
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or is a statement of,
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"I acknowledge parenthood," in a broader sense?
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'Cause, especially in the modern world,
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we've been, right, very accepting of these
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from people who couldn't be the biological parent,
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right?
Correct, your Honor.
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But the form itself
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states that it is under the pains and penalties of perjury.
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But what are you saying?
What does it say exactly?
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Yeah.
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When you say that,
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(microphone thuds)
right, sorry.
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It affirms that, under the pains and penalties of perjury,
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that you believe your statements on the form to be true.
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And then the statement is that you are,
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in fact, the biological parents of the child.
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And it says that on there,
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it says biological parent?
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It does on the form that was signed in this case.
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I do know that there is now an
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(volume elevates),
oh, excuse me,
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an (laughs) alternate form that is available.
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And what form allows,
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is, first of all, it has gender neutral terms,
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so it doesn't say mother and father,
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it says parent one, parent two.
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And then when you get down to the boxes
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where you begin to check,
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the first box that the parties can check
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is that you are the biological parents of the child.
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So that, I'm sorry, just to clarify,
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that new form was not available at the time?
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It was not available
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at the time, your Honor.
Were there other forms
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that were available to this-
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As far as I know,
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this was the form that was available from the state.
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And if you wanted to proceed-
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So in order to do the VAP,
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this was
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the form available?
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Correct.
Okay.
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And, as
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was pointed out by Justice Kafker, yes,
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my client, in fact,
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could have filed a complaint for parentage,
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and I cannot state otherwise.
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What would be the impact though now of saying,
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"Okay, you're right, he is.
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He's got the responsibility."
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Is there any retroactive child support issue?
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Well, I don't believe so in this particular case,
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because there's been no child support paid by either,
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I'm gonna call them biological
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and legal father for now-
How would that matter?
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Because there's been no order,
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so there wouldn't be a retro award available,
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I wouldn't believe.
Well, but somebody
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could seek it, couldn't they?
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They could.
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And that could be on a case by case basis.
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And back to the point I was making earlier is that,
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although my client did not
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in fact file a complaint for parentage,
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neither did mother and legal father in this case,
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file a complaint to adopt,
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or a petition to adopt, right?
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So acknowledging, I agree-
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That's expensive though, right?
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The VAP is
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every person's ability to become a parent,
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as opposed to adoption,
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you need a lawyer, you gotta, you know,
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it's a much more-
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Because you're terminating somebody's rights.
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And so, as I was saying on the VAP form,
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or the form that presently exists,
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although I'm going to also admit
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that I had trouble locating one (laughs)
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that didn't have sample stamped across the top.
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I don't know if it's just a function of being a layperson
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versus having it available at a hospital, or another thing.
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The first box that can be checked is that you are,
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in fact, the biological parents.
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The next box lets you check that you,
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rather than being the biological parents,
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in fact, the child was born
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through assistive reproductive technology.
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So that allows
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someone to come forward,
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they are not the biological parent,
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but they are the parent of the child.
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And again, we're recognizing
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that when someone uses assistive reproductive technology,
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that the person donating biological material at the time
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is either an unknown donor,
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and the person went to a clinic
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and, you know, thus it's an arms length transaction
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and we don't know who they are,
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or if they're a known donor,
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we would anticipate
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that the parties would have an underlying agreement
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that says, "You know, I'm donating material,
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there's a hope or an expectation that there'll be a child,
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but I understand that I'm
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not maintaining a parental interest in this child."
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And so we would argue that, in this case,
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that we have a child born out of wedlock,
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the plain language of the statute under 209C
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only prohibits a putative biological father
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from coming forward if the parties are married
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at the time of conception or birth.
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So, you know, our first argument is
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that our client should have been allowed to proceed under-
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You think that statute's pretty still constitutional?
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I mean, in light of everything now?
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In light of the decision where we have
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to read the statute gender neutral,
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and kind of the, yes.
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So, the word married is still the word married,
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and all people, regardless of their sexual orientation,
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can get married.
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So, (laughs) it says married-
(laughs) Okay, all right.
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We can leave it there.
But, you know, to that end,
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we would argue that, in fact,
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if what we are saying is
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that any time there is a legal father
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on the birth certificate,
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so if we extend it past there,
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our argument would then be,
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"Okay, there is a legal father on the birth certificate."
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So question one is, did we execute this in good faith?
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Right?
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Did we believe ourselves to have been a parent?
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And if we're not the parent
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and we don't have an underlying agreement
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and we have some knowledge that it might not be,
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I would argue that my client is not the person
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who disrupted the family unit.
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It's the people who signed it-
But what's in
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the best interest of the child, though,
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don't we have to reach that,
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and really, seriously consider that here?
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I actually agree, your Honor,
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but we don't get there,
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because what happens now
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is that if you file under 209C,
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again, if we presume we went forward under 209C,
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the first thing would be a hearing
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where there's a finding about whether or not
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by clear and convincing evidence,
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there's a possibility of paternity or parentage.
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Once that determination has been made,
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00:10:01.980 --> 00:10:05.493
section 17 requires a confirmatory DNA test.
270
00:10:06.780 --> 00:10:09.699
And then, although the statutory seems,
271
00:10:09.699 --> 00:10:10.710
doesn't say it,
272
00:10:10.710 --> 00:10:13.140
the next phase would be a hearing
273
00:10:13.140 --> 00:10:15.060
on what's in the best interest of the child.
274
00:10:15.060 --> 00:10:17.460
And we agree that the nature and extent
275
00:10:17.460 --> 00:10:20.940
of any prior relationship is a big factor
276
00:10:20.940 --> 00:10:23.130
in what's in the child's best interest.
277
00:10:23.130 --> 00:10:25.710
But we don't think it's the threshold inquiry.
278
00:10:25.710 --> 00:10:27.420
And that by treating it as such,
279
00:10:27.420 --> 00:10:31.260
we've created a bar to somebody coming forward.
280
00:10:31.260 --> 00:10:33.720
So likewise, I would go so far as to say
281
00:10:33.720 --> 00:10:36.780
that even in a case that's brought under 215,
282
00:10:36.780 --> 00:10:37.980
even in a case where you
283
00:10:37.980 --> 00:10:41.043
have the presumption of parentage based upon marriage,
284
00:10:42.780 --> 00:10:45.150
I think that it would be appropriate
285
00:10:45.150 --> 00:10:46.860
for a third party to be able to come forward
286
00:10:46.860 --> 00:10:49.920
if they have a belief that they're the parent
287
00:10:49.920 --> 00:10:51.870
and that they would be entitled to the hearing
288
00:10:51.870 --> 00:10:54.690
on whether or not there's a possibility they were a parent.
289
00:10:54.690 --> 00:10:57.840
Even though, in this case, there's no doubt,
290
00:10:57.840 --> 00:11:01.293
again, he knew he was in the realm of possibility.
291
00:11:02.357 --> 00:11:03.840
He knows the mother,
292
00:11:03.840 --> 00:11:07.320
he knows he was sleeping with the mother around that time.
293
00:11:07.320 --> 00:11:12.063
So why should we let him sit on his rights that long?
294
00:11:15.150 --> 00:11:18.030
I understand, yes,
295
00:11:18.030 --> 00:11:20.070
if he'd been shipped out to sea,
296
00:11:20.070 --> 00:11:21.940
and, you know, incommunicado
297
00:11:22.890 --> 00:11:25.230
for (laughs) a year, maybe this might be different,
298
00:11:25.230 --> 00:11:26.490
but he's not.
299
00:11:26.490 --> 00:11:27.540
He knows about this,
300
00:11:27.540 --> 00:11:29.370
and he could have done something about it,
301
00:11:29.370 --> 00:11:31.650
and now we're allowing him to come back
302
00:11:31.650 --> 00:11:33.690
six (laughs) years later, or whatever.
303
00:11:33.690 --> 00:11:35.490
We're allowing him to come back.
304
00:11:35.490 --> 00:11:37.740
We're allowing him to have status as a parent.
305
00:11:37.740 --> 00:11:40.410
That does not mean that he is going
306
00:11:40.410 --> 00:11:45.180
to have the same parental rights as the other two parents.
307
00:11:45.180 --> 00:11:46.013
You know,
308
00:11:46.013 --> 00:11:47.910
I feel that we keep-
No, but we,
309
00:11:47.910 --> 00:11:49.313
I mean,
310
00:11:49.313 --> 00:11:52.833
Judge Simons does something that seems very sensible.
311
00:11:54.390 --> 00:11:57.033
If this had been filed within a year, then,
312
00:11:58.800 --> 00:11:59.910
we're in a different category.
313
00:11:59.910 --> 00:12:01.650
But if he waits six years,
314
00:12:01.650 --> 00:12:04.320
then we apply this substantial connection
315
00:12:04.320 --> 00:12:06.663
or whatever the proper terminology is.
316
00:12:08.310 --> 00:12:10.200
And it seems appropriate because,
317
00:12:10.200 --> 00:12:13.770
why are we having him become a dad after six years
318
00:12:13.770 --> 00:12:15.360
when he could have been a dad
319
00:12:15.360 --> 00:12:18.303
within, you know, six days of the birth?
320
00:12:20.910 --> 00:12:24.180
I understand, and I presume to some degree
321
00:12:24.180 --> 00:12:26.100
there's a focus on layer, which is,
322
00:12:26.100 --> 00:12:29.340
you know, you have to grasp your parental responsibility.
323
00:12:29.340 --> 00:12:31.166
The argument there is that, yes,
324
00:12:31.166 --> 00:12:33.900
he was one of multiple possibilities.
325
00:12:33.900 --> 00:12:35.970
He was told it wasn't likely.
326
00:12:35.970 --> 00:12:38.340
And I think it's reasonable that he rely on that.
327
00:12:38.340 --> 00:12:42.450
You know, instead we're saying that we would rather
328
00:12:42.450 --> 00:12:43.860
have more litigation,
329
00:12:43.860 --> 00:12:45.900
when the parties were frankly parenting,
330
00:12:45.900 --> 00:12:47.670
our client actually,
331
00:12:47.670 --> 00:12:50.550
although not as close a relationship
332
00:12:50.550 --> 00:12:52.320
as it is with legal father,
333
00:12:52.320 --> 00:12:55.950
as, again, I'm just trying to make sure it's clear,
334
00:12:55.950 --> 00:12:57.210
they have a relationship.
335
00:12:57.210 --> 00:12:58.350
They've spent holidays together,
336
00:12:58.350 --> 00:12:59.760
he's spent birthdays with her,
337
00:12:59.760 --> 00:13:01.380
they share a sibling.
338
00:13:01.380 --> 00:13:04.710
In fact, both legal father and biological father
339
00:13:04.710 --> 00:13:07.320
have another child with this mother.
340
00:13:07.320 --> 00:13:08.153
So this
341
00:13:09.330 --> 00:13:11.340
family unit
342
00:13:11.340 --> 00:13:13.860
is changing, and it's large.
343
00:13:13.860 --> 00:13:16.080
And I think that that's part of the problem
344
00:13:16.080 --> 00:13:18.330
with the cases as they exist,
345
00:13:18.330 --> 00:13:19.830
is the cases
346
00:13:19.830 --> 00:13:22.110
all stem from this idea
347
00:13:22.110 --> 00:13:25.620
that the societal impact of illegitimacy
348
00:13:25.620 --> 00:13:28.950
is so terrible that it must be avoided at all costs.
349
00:13:28.950 --> 00:13:32.040
And they also seem to relate to this fiction
350
00:13:32.040 --> 00:13:35.823
that there are these intact, traditional,
351
00:13:36.810 --> 00:13:39.000
quote, unquote, "normal" family units.
352
00:13:39.000 --> 00:13:40.440
And I think that-
I don't know
353
00:13:40.440 --> 00:13:42.150
if that's the case.
354
00:13:42.150 --> 00:13:44.760
I think you're sort of turning it on its head a little bit,
355
00:13:44.760 --> 00:13:47.427
because you're,
356
00:13:47.427 --> 00:13:52.427
(sighs) I mean, this Mr. Mercer steps up.
357
00:13:53.130 --> 00:13:56.403
Now you look at what he's done as problematic,
358
00:13:57.360 --> 00:13:58.210
but he, you know,
359
00:13:59.520 --> 00:14:03.300
and again, we're gonna ask your brother when he gets up,
360
00:14:03.300 --> 00:14:04.830
you know, essentially,
361
00:14:04.830 --> 00:14:06.450
is the VAP
362
00:14:06.450 --> 00:14:09.760
process limited to biological
363
00:14:10.920 --> 00:14:12.990
or assisted reproductivity,
364
00:14:12.990 --> 00:14:15.330
or does it allow this third category of person,
365
00:14:15.330 --> 00:14:16.473
which is basically-
366
00:14:17.566 --> 00:14:18.399
Someone who parents?
"I wanna help out,
367
00:14:18.399 --> 00:14:19.432
I wanna be a dad."
368
00:14:19.432 --> 00:14:20.767
You know, "I wanna be this dad
369
00:14:20.767 --> 00:14:22.650
"'cause I'm basically acting as this dad."
370
00:14:22.650 --> 00:14:25.140
And it, you know-
I'm sorry, your Honor.
371
00:14:25.140 --> 00:14:25.973
No, go ahead.
372
00:14:25.973 --> 00:14:27.360
I would argue that,
373
00:14:27.360 --> 00:14:32.360
in fact, I don't find legal father stepping up to be
374
00:14:32.460 --> 00:14:34.320
problematic in the sense
375
00:14:34.320 --> 00:14:37.497
that all children need all the parents
376
00:14:37.497 --> 00:14:41.940
and all the family they can have, to be supported.
377
00:14:41.940 --> 00:14:44.970
And I think that the VAP could be changed,
378
00:14:44.970 --> 00:14:48.690
but the VAP form as it exists,
379
00:14:48.690 --> 00:14:50.190
does not state that.
380
00:14:50.190 --> 00:14:51.810
But I-
The statutes say it,
381
00:14:51.810 --> 00:14:53.130
or is this,
382
00:14:53.130 --> 00:14:56.220
you know, the happenstance of the clerk's office
383
00:14:56.220 --> 00:14:57.900
putting together this form that way?
384
00:14:57.900 --> 00:14:59.437
Does the statute say,
385
00:14:59.437 --> 00:15:01.080
"You're the biological parent,"
386
00:15:01.080 --> 00:15:06.080
or is that the clerk's office embellishment of that?
387
00:15:06.090 --> 00:15:07.290
I do not know, your Honor,
388
00:15:07.290 --> 00:15:10.440
I'd be happy to file a supplemental material under rule 16,
389
00:15:10.440 --> 00:15:12.090
if you would like, on that issue.
390
00:15:12.930 --> 00:15:15.210
I remember looking around at the statute
391
00:15:15.210 --> 00:15:17.700
and I didn't see the word biological.
392
00:15:17.700 --> 00:15:19.080
And then I was looking for the form.
393
00:15:19.080 --> 00:15:20.940
Is the form actually in the record?
394
00:15:20.940 --> 00:15:21.773
I couldn't find it
395
00:15:21.773 --> 00:15:23.370
and I didn't-
I believe the form is
396
00:15:23.370 --> 00:15:25.080
in your record, but again, if the court would like,
397
00:15:25.080 --> 00:15:28.830
I would be pleased to send you both versions of the form
398
00:15:28.830 --> 00:15:30.750
under the supplemental materials rule.
399
00:15:30.750 --> 00:15:32.670
I think it is in the-
Okay you found the form?
400
00:15:32.670 --> 00:15:34.680
I believe it is, your Honor.
401
00:15:34.680 --> 00:15:37.560
But, so I would again argue that, you know, in this case,
402
00:15:37.560 --> 00:15:41.580
far from trying to deprive the legal father of status,
403
00:15:41.580 --> 00:15:43.590
that we would in fact think that
404
00:15:43.590 --> 00:15:44.610
the court should hold a hearing
405
00:15:44.610 --> 00:15:46.020
as to the best interest of the children,
406
00:15:46.020 --> 00:15:47.520
and there's no prohibition
407
00:15:47.520 --> 00:15:50.310
on a child having legal and physical custody
408
00:15:50.310 --> 00:15:51.720
with more than two people.
409
00:15:51.720 --> 00:15:54.183
I would point to the 1944 case,
410
00:15:55.530 --> 00:15:58.233
sorry, I apologize, as I flip pages,
411
00:16:00.030 --> 00:16:01.980
that discusses that issue.
412
00:16:01.980 --> 00:16:05.100
In fact, you know, they had more than two parents, so.
413
00:16:05.100 --> 00:16:08.100
And the one last point I'd like to make,
414
00:16:08.100 --> 00:16:09.900
I realize my time is running out,
415
00:16:09.900 --> 00:16:12.300
is that as it relates to de facto parent status,
416
00:16:12.300 --> 00:16:13.860
you know, there's some concern that,
417
00:16:13.860 --> 00:16:16.980
and we use the term de facto status
418
00:16:16.980 --> 00:16:20.553
for where we think legal father might fall into.
419
00:16:21.420 --> 00:16:23.640
We don't intend or believe
420
00:16:23.640 --> 00:16:27.780
that a de facto parent should be a second tier parent,
421
00:16:27.780 --> 00:16:31.080
or as has been intimated in some of the briefs,
422
00:16:31.080 --> 00:16:33.630
that it's some lesser class of parent.
423
00:16:33.630 --> 00:16:36.330
There is no statutory authority for de facto parents.
424
00:16:36.330 --> 00:16:39.510
It is a case law animal,
425
00:16:39.510 --> 00:16:41.280
and there has been no finding
426
00:16:41.280 --> 00:16:44.190
that, in fact, legal and physical custodial rights
427
00:16:44.190 --> 00:16:46.770
can't follow de facto parent status.
428
00:16:46.770 --> 00:16:48.330
So, you know, we think that when we look
429
00:16:48.330 --> 00:16:49.800
at the evolving family,
430
00:16:49.800 --> 00:16:52.500
that a child can have more than two parents,
431
00:16:52.500 --> 00:16:56.220
that some will be biologically related,
432
00:16:56.220 --> 00:16:58.560
some will not be biologically related.
433
00:16:58.560 --> 00:17:00.750
You know, we don't intend to cut out
434
00:17:00.750 --> 00:17:02.400
any of the family unit,
435
00:17:02.400 --> 00:17:04.020
what we're simply saying
436
00:17:04.020 --> 00:17:06.060
is that the substantial relationship test
437
00:17:06.060 --> 00:17:08.160
is not the threshold burden,
438
00:17:08.160 --> 00:17:10.200
that is one factor
439
00:17:10.200 --> 00:17:13.020
that goes into the best interest of the child, standard.
440
00:17:13.020 --> 00:17:16.320
But first we have to get past the gate keeping function
441
00:17:16.320 --> 00:17:17.490
of the court, which is-
Can I just
442
00:17:17.490 --> 00:17:18.676
ask a question about that?
Yes, your Honor.
443
00:17:18.676 --> 00:17:20.070
So,
444
00:17:20.070 --> 00:17:23.700
it's not under 209C, but is it under
445
00:17:23.700 --> 00:17:24.717
215?
446
00:17:24.717 --> 00:17:26.760
The substantial relationship test, your Honor?
447
00:17:26.760 --> 00:17:27.593
Yes.
448
00:17:27.593 --> 00:17:29.670
That test, so, general law,
449
00:17:29.670 --> 00:17:34.080
215 section 6 is the general equity powers of the court.
450
00:17:34.080 --> 00:17:36.810
There is no express statutory authority
451
00:17:36.810 --> 00:17:39.480
for the substantial relationship test or when it applies,
452
00:17:39.480 --> 00:17:41.370
it's, again, a function of case law.
453
00:17:41.370 --> 00:17:43.410
Yep.
And in those cases,
454
00:17:43.410 --> 00:17:45.090
with the substantial relationship test,
455
00:17:45.090 --> 00:17:48.180
we had somebody coming into a marriage,
456
00:17:48.180 --> 00:17:49.680
and again, I would would point to the fact
457
00:17:49.680 --> 00:17:51.690
that, you know, we have outdated notions,
458
00:17:51.690 --> 00:17:53.400
at that point, of family,
459
00:17:53.400 --> 00:17:57.150
and it stemmed a lot from societal implications.
460
00:17:57.150 --> 00:17:59.070
But I guess I just wanted to know
461
00:17:59.070 --> 00:18:02.580
that's what we use the substantial relationship test for.
462
00:18:02.580 --> 00:18:05.280
Children born in wedlock-
For 215.
463
00:18:05.280 --> 00:18:08.190
Where somebody is coming in that is not the husband,
464
00:18:08.190 --> 00:18:10.200
seeking to establish parentage.
465
00:18:10.200 --> 00:18:14.250
That's the only time we use 215-6?
466
00:18:14.250 --> 00:18:15.973
Well, that's the only time we use
467
00:18:15.973 --> 00:18:18.330
a substantial relationship test, your Honor.
468
00:18:18.330 --> 00:18:19.467
Oh, okay.
469
00:18:19.467 --> 00:18:23.163
And how come we are not looking at this one year,
470
00:18:24.839 --> 00:18:26.910
basically, statute of limitations
471
00:18:26.910 --> 00:18:28.350
on 209C?
Right, so,
472
00:18:28.350 --> 00:18:30.840
that one portion of the statute relates
473
00:18:30.840 --> 00:18:32.040
to rescission, right,
474
00:18:32.040 --> 00:18:33.030
so the parties can,
475
00:18:33.030 --> 00:18:35.243
for any reason, resend-
(indistinct), and then
476
00:18:35.243 --> 00:18:36.076
after that.
Right.
477
00:18:36.076 --> 00:18:37.830
And then, we would argue that
478
00:18:37.830 --> 00:18:39.570
that one year limitation period,
479
00:18:39.570 --> 00:18:41.283
again, is treated, like,
480
00:18:42.360 --> 00:18:44.820
as a function between the parties.
481
00:18:44.820 --> 00:18:45.653
Right?
482
00:18:45.653 --> 00:18:46.486
It's not to all world
483
00:18:46.486 --> 00:18:48.753
as to all notice.
But why would it?
484
00:18:49.950 --> 00:18:51.480
It doesn't say that in here.
485
00:18:51.480 --> 00:18:53.227
It just says,
486
00:18:53.227 --> 00:18:56.010
"It's subject to challenge within one year only."
487
00:18:56.010 --> 00:18:59.880
In fact, I'd argue that it would be anybody but the people
488
00:18:59.880 --> 00:19:02.520
who have entered into the agreement,
489
00:19:02.520 --> 00:19:04.350
because they did so voluntarily.
490
00:19:04.350 --> 00:19:05.700
They did so voluntarily.
491
00:19:05.700 --> 00:19:07.350
And I think within the year,
492
00:19:07.350 --> 00:19:08.670
the parties who entered the agreement,
493
00:19:08.670 --> 00:19:10.500
again, have that fraud duress mistake,
494
00:19:10.500 --> 00:19:12.415
because you might learn something.
495
00:19:12.415 --> 00:19:14.760
But as to the public at large,
496
00:19:14.760 --> 00:19:17.070
part of the challenge is that
497
00:19:17.070 --> 00:19:20.490
nobody knows when VAPs are signed.
498
00:19:20.490 --> 00:19:22.950
So, for example,
499
00:19:22.950 --> 00:19:25.860
a putative biological father may have
500
00:19:25.860 --> 00:19:28.980
an ongoing relationship with the child,
501
00:19:28.980 --> 00:19:30.690
maybe didn't sign a VAP,
502
00:19:30.690 --> 00:19:32.223
but there's a relationship,
503
00:19:33.690 --> 00:19:36.300
and the mother can have somebody else sign the VAP,
504
00:19:36.300 --> 00:19:37.410
and it gets filed with the court,
505
00:19:37.410 --> 00:19:39.450
the birth certificate gets changed,
506
00:19:39.450 --> 00:19:42.750
and no one may ever know,
507
00:19:42.750 --> 00:19:45.210
or may only know five years later.
508
00:19:45.210 --> 00:19:47.730
So I think that that's part of the challenge, your Honor.
509
00:19:47.730 --> 00:19:48.563
Understood that.
510
00:19:48.563 --> 00:19:49.396
I get that.
Yeah.
511
00:19:49.396 --> 00:19:52.530
But then I go back to the 215, section 6,
512
00:19:52.530 --> 00:19:54.690
which I know you're saying
513
00:19:54.690 --> 00:19:57.360
usually is only used in this one particular way,
514
00:19:57.360 --> 00:20:00.120
but does that mean it has to be used only
515
00:20:00.120 --> 00:20:02.280
in that one particular way?
516
00:20:02.280 --> 00:20:04.830
But again, we also proceeded under 209C,
517
00:20:04.830 --> 00:20:05.958
and that test isn't there-
No, I understand.
518
00:20:05.958 --> 00:20:06.791
I understand.
519
00:20:06.791 --> 00:20:08.300
I understand you did.
520
00:20:08.300 --> 00:20:11.310
So again, we argue that the substantial relationship test
521
00:20:11.310 --> 00:20:14.610
should not be applied in marital or non-marital cases.
522
00:20:14.610 --> 00:20:18.660
We really believe it's an outdated, outmoded test
523
00:20:18.660 --> 00:20:20.520
in that it was meant as a bar,
524
00:20:20.520 --> 00:20:24.849
because the idea was to preserve marriages, and-
525
00:20:24.849 --> 00:20:26.160
[Chief Justice Budd] Substantial relationship test?
526
00:20:26.160 --> 00:20:26.993
Yes, your Honor.
527
00:20:26.993 --> 00:20:29.280
That is how that case arose.
528
00:20:29.280 --> 00:20:32.294
For example, there are two cases,
529
00:20:32.294 --> 00:20:34.830
the biggest one that I think of is,
530
00:20:34.830 --> 00:20:37.530
we had a woman who had an extramarital affair,
531
00:20:37.530 --> 00:20:38.790
after the child was born,
532
00:20:38.790 --> 00:20:40.260
for the first four and a half months
533
00:20:40.260 --> 00:20:42.270
after the child was born,
534
00:20:42.270 --> 00:20:45.928
the biological father came to the house every week.
535
00:20:45.928 --> 00:20:47.640
Gave money.
536
00:20:47.640 --> 00:20:50.490
And when mother broke off the relationship,
537
00:20:50.490 --> 00:20:52.560
he still wanted to see the child.
538
00:20:52.560 --> 00:20:54.300
He set up life insurance.
539
00:20:54.300 --> 00:20:55.470
And it was within a year,
540
00:20:55.470 --> 00:20:57.307
and the court said,
541
00:20:57.307 --> 00:20:59.850
"No, there's no substantial relationship."
542
00:20:59.850 --> 00:21:02.550
And I find it hard to believe
543
00:21:02.550 --> 00:21:04.800
that when you're talking about an infant,
544
00:21:04.800 --> 00:21:07.350
that that matters.
545
00:21:07.350 --> 00:21:09.420
The best interest of the child matters,
546
00:21:09.420 --> 00:21:10.849
and the best interest of the child,
547
00:21:10.849 --> 00:21:13.830
that prior relationship is a factor.
548
00:21:13.830 --> 00:21:17.460
And, in fact, in the Lehr decision from the Supreme Court,
549
00:21:17.460 --> 00:21:19.620
which we don't necessarily (laughs) agree with
550
00:21:19.620 --> 00:21:20.580
on all points,
551
00:21:20.580 --> 00:21:23.700
but Justice Scalia noted that it was one factor
552
00:21:23.700 --> 00:21:25.020
in the best interest of the child.
553
00:21:25.020 --> 00:21:26.580
It's not the whole test.
554
00:21:26.580 --> 00:21:28.840
So we would argue that
555
00:21:31.800 --> 00:21:33.570
biological father should get in the door,
556
00:21:33.570 --> 00:21:35.100
there should be confirmatory testing,
557
00:21:35.100 --> 00:21:36.240
and then there should be a hearing.
558
00:21:36.240 --> 00:21:37.410
And the hearing should determine,
559
00:21:37.410 --> 00:21:39.630
in fact, the nature and extended parental rights
560
00:21:39.630 --> 00:21:42.390
to each parent, not limiting it.
561
00:21:42.390 --> 00:21:44.520
We are not seeking in any way
562
00:21:44.520 --> 00:21:48.300
to prevent current legal father from parenting this child.
563
00:21:48.300 --> 00:21:50.700
We recognize, this isn't a zero sum game,
564
00:21:50.700 --> 00:21:52.200
this is a child's life.
565
00:21:52.200 --> 00:21:54.270
They'd have a right and an interest
566
00:21:54.270 --> 00:21:57.300
in knowing their biological family, their lineage,
567
00:21:57.300 --> 00:21:59.460
having all of the parents and all the support
568
00:21:59.460 --> 00:22:00.573
that they can have.
569
00:22:01.408 --> 00:22:02.241
Yes, your Honor?
Well, can't that
570
00:22:02.241 --> 00:22:04.723
all be provided without this official acknowledgement?
571
00:22:04.723 --> 00:22:07.293
I mean, there's no reason the father can't participate,
572
00:22:07.293 --> 00:22:08.515
and, I mean,
573
00:22:08.515 --> 00:22:09.542
the biological father-
But the court-
574
00:22:09.542 --> 00:22:12.270
And has been participating.
And has been, right!
575
00:22:12.270 --> 00:22:13.710
I mean, all that's there.
576
00:22:13.710 --> 00:22:15.540
But the court did not enter,
577
00:22:15.540 --> 00:22:19.320
he has no custodial right that can be enforced,
578
00:22:19.320 --> 00:22:24.320
so that if either of the mother or current legal father
579
00:22:24.330 --> 00:22:27.480
were to say, "You can't see the child,"
580
00:22:27.480 --> 00:22:28.500
the answer is he can't,
581
00:22:28.500 --> 00:22:32.010
because he has no ability to go into court
582
00:22:32.010 --> 00:22:33.570
and argue
583
00:22:33.570 --> 00:22:35.552
that his relationship should
584
00:22:35.552 --> 00:22:38.460
have protection.
Have any even way in
585
00:22:38.460 --> 00:22:40.177
through equity in the probate court to say,
586
00:22:40.177 --> 00:22:42.120
"Look, for the last three years,
587
00:22:42.120 --> 00:22:45.390
they've brought me into the family, and I am the bio dad-"
588
00:22:45.390 --> 00:22:46.980
No, your Honor.
589
00:22:46.980 --> 00:22:48.270
Not under the current law.
590
00:22:48.270 --> 00:22:49.980
Okay.
Even if he had
591
00:22:49.980 --> 00:22:51.423
a significant relationship?
592
00:22:52.680 --> 00:22:55.740
If he had a preexisting, significant relationship,
593
00:22:55.740 --> 00:22:57.750
so there are some cases,
594
00:22:57.750 --> 00:22:59.190
in the cases that I've read
595
00:22:59.190 --> 00:23:02.040
that have that preexisting relationship,
596
00:23:02.040 --> 00:23:04.170
tend to be children born in wedlock
597
00:23:04.170 --> 00:23:06.840
but they were separated at the time.
598
00:23:06.840 --> 00:23:08.580
And so there was this window
599
00:23:08.580 --> 00:23:12.423
where biological father lived with mother and child.
600
00:23:13.680 --> 00:23:15.873
It has not been,
601
00:23:16.860 --> 00:23:20.850
I have not seen cases where you can come forward,
602
00:23:20.850 --> 00:23:22.080
you know, for example,
603
00:23:22.080 --> 00:23:23.767
he learns when the child is seven,
604
00:23:23.767 --> 00:23:26.520
"In fact, it is yours, other people have been tested,"
605
00:23:26.520 --> 00:23:27.750
as, in this case.
606
00:23:27.750 --> 00:23:29.430
He's seen the kid,
607
00:23:29.430 --> 00:23:31.200
child, sorry (laughs),
608
00:23:31.200 --> 00:23:34.170
for most of the child's life, in fact believes,
609
00:23:34.170 --> 00:23:37.743
you know, or knows that his son is related.
610
00:23:38.610 --> 00:23:41.790
And yet that's not a relationship worthy of protection,
611
00:23:41.790 --> 00:23:43.320
even on
612
00:23:43.320 --> 00:23:46.440
a one afternoon every two weeks kind of basis
613
00:23:46.440 --> 00:23:47.430
at this point in time.
614
00:23:47.430 --> 00:23:49.044
So I think it's a-
I think I have my answer,
615
00:23:49.044 --> 00:23:49.877
thank you.
Thank you, your Honor.
616
00:23:49.877 --> 00:23:51.600
Thank you so much.
Thank you.
617
00:23:51.600 --> 00:23:52.680
Okay.
618
00:23:52.680 --> 00:23:53.513
All right.
619
00:23:53.513 --> 00:23:54.346
Attorney LaRochelle.
620
00:23:57.870 --> 00:23:59.640
Thank you for your time this morning,
621
00:23:59.640 --> 00:24:00.840
and may it please the court.
622
00:24:00.840 --> 00:24:03.270
I do wanna point out, I'm not the legal father,
623
00:24:03.270 --> 00:24:05.460
even though Attorney Lord pointed to me a number of times
624
00:24:05.460 --> 00:24:06.293
when she was talking about
625
00:24:06.293 --> 00:24:07.800
the legal father.
(group laughs)
626
00:24:07.800 --> 00:24:09.930
But I do represent the legal father,
627
00:24:09.930 --> 00:24:12.780
the legal father of a nine-year-old girl.
628
00:24:12.780 --> 00:24:14.700
And in this case, the punitive father,
629
00:24:14.700 --> 00:24:15.930
at least in the briefs,
630
00:24:15.930 --> 00:24:18.300
has claimed that he has a constitutional right
631
00:24:18.300 --> 00:24:20.880
to parent this child on the mere fact
632
00:24:20.880 --> 00:24:23.400
that he shares DNA with her.
633
00:24:23.400 --> 00:24:26.910
Biological father is wrong on that.
634
00:24:26.910 --> 00:24:29.820
The United States Supreme Court has made it clear,
635
00:24:29.820 --> 00:24:31.950
both through the Stanley vs. Illinois decision,
636
00:24:31.950 --> 00:24:35.250
and then even clearer in Lehr vs. Robinson,
637
00:24:35.250 --> 00:24:37.830
that it is not just DNA alone
638
00:24:37.830 --> 00:24:40.020
that gives a parent a constitutional right,
639
00:24:40.020 --> 00:24:42.480
or a liberty interest to parent a child.
640
00:24:42.480 --> 00:24:45.547
It is, "Siring," and this is a quote from the court,
641
00:24:45.547 --> 00:24:48.390
"Siring and raising the child."
642
00:24:48.390 --> 00:24:52.590
And the raising the child is totally not here in this case.
643
00:24:52.590 --> 00:24:56.250
But because that is a constitutional concern,
644
00:24:56.250 --> 00:24:59.190
the probate court was exactly right
645
00:24:59.190 --> 00:25:02.550
in ordering and holding an evidentiary hearing
646
00:25:02.550 --> 00:25:03.383
on the question of
647
00:25:03.383 --> 00:25:06.570
whether there was a substantial parental relationship
648
00:25:06.570 --> 00:25:07.650
with this child,
649
00:25:07.650 --> 00:25:11.190
as a gateway to any of the proceedings before it.
650
00:25:11.190 --> 00:25:12.570
It does two things;
651
00:25:12.570 --> 00:25:13.593
number one,
652
00:25:14.430 --> 00:25:17.490
it satisfies this court's requirement,
653
00:25:17.490 --> 00:25:19.740
set down in C.C. vs. A.B.,
654
00:25:19.740 --> 00:25:22.230
to have such a hearing,
655
00:25:22.230 --> 00:25:23.820
and to determine whether there is
656
00:25:23.820 --> 00:25:25.770
a substantial parent/child relationship
657
00:25:25.770 --> 00:25:28.230
before proceeding on the merits of the case
658
00:25:28.230 --> 00:25:29.880
in an equity case.
659
00:25:29.880 --> 00:25:31.020
The second thing it does is,
660
00:25:31.020 --> 00:25:32.850
it answers the constitutional question
661
00:25:32.850 --> 00:25:35.730
of whether there is a substantial relationship
662
00:25:35.730 --> 00:25:37.950
between the child and the parent that rises
663
00:25:37.950 --> 00:25:40.173
to constitutional-
But, I get all that.
664
00:25:41.220 --> 00:25:43.710
I'm a little concerned with the original,
665
00:25:43.710 --> 00:25:46.383
the VAP on your client.
666
00:25:49.470 --> 00:25:51.090
Does the statute,
667
00:25:51.090 --> 00:25:54.720
I mean, is this a misuse of the VAP process, or not?
668
00:25:54.720 --> 00:25:56.493
I guess is the question for me.
669
00:25:58.086 --> 00:26:02.520
And both in terms of what the statute says a VAP is,
670
00:26:02.520 --> 00:26:05.979
and what this clerk document said it was.
671
00:26:05.979 --> 00:26:08.393
Could you talk me through those two things?
672
00:26:08.393 --> 00:26:09.226
'Cause-
I can-
673
00:26:09.226 --> 00:26:10.920
That's what makes this more complicated (laughs).
674
00:26:10.920 --> 00:26:11.753
I can, your Honor.
675
00:26:11.753 --> 00:26:13.650
And by the way, the VAP is included,
676
00:26:13.650 --> 00:26:16.470
it's in appendix volume two, page seven,
677
00:26:16.470 --> 00:26:19.560
I believe, is where the actual signed VAP is.
678
00:26:19.560 --> 00:26:22.276
And if I could make really four points on the VAP,
679
00:26:22.276 --> 00:26:23.790
I would appreciate it.
680
00:26:23.790 --> 00:26:25.980
The first one is that, in the briefs anyway,
681
00:26:25.980 --> 00:26:27.330
we talked about fraud,
682
00:26:27.330 --> 00:26:29.010
or they talked about fraud.
Could you start
683
00:26:29.010 --> 00:26:30.090
with the statute?
684
00:26:30.090 --> 00:26:32.412
'Cause it's nice to know the law.
685
00:26:32.412 --> 00:26:33.245
[Attorney LaRochelle] Sure!
686
00:26:33.245 --> 00:26:34.167
The statute-
A VAP-
687
00:26:34.167 --> 00:26:35.929
The statute is 209C.
Yeah, 209C.
688
00:26:35.929 --> 00:26:38.100
Section 5 and 11, specifically.
689
00:26:38.100 --> 00:26:39.510
And your Honor is correct.
690
00:26:39.510 --> 00:26:40.470
You mentioned earlier,
691
00:26:40.470 --> 00:26:43.620
there is no mention of the VAP being limited
692
00:26:43.620 --> 00:26:45.420
to a biological parent.
693
00:26:45.420 --> 00:26:49.170
It's absolutely not existent in the statutory law.
694
00:26:49.170 --> 00:26:53.250
It's not existent in this court's case law up until now.
695
00:26:53.250 --> 00:26:56.970
In fact, originally in paternity of Cheryl,
696
00:26:56.970 --> 00:26:59.250
and later on in the Partanen case,
697
00:26:59.250 --> 00:27:01.710
this court found that it's perfectly acceptable
698
00:27:01.710 --> 00:27:04.830
to be a parent and, in the Partanen case,
699
00:27:04.830 --> 00:27:07.390
to sign a valid VAP-
And were those
700
00:27:08.400 --> 00:27:11.910
sort of pre-Goodridge cases
701
00:27:11.910 --> 00:27:16.260
and dealing with the artificial insemination issue,
702
00:27:16.260 --> 00:27:17.850
or what were those cases?
703
00:27:17.850 --> 00:27:19.830
I'm just trying to understand.
704
00:27:19.830 --> 00:27:21.030
'Cause-
Well-
705
00:27:21.030 --> 00:27:25.380
I take it, we don't want anybody just filing a VAP, right?
706
00:27:25.380 --> 00:27:27.150
There has to be some,
707
00:27:27.150 --> 00:27:28.470
is there a limitation on it,
708
00:27:28.470 --> 00:27:31.590
or can anybody just, you know, volunteer for the duty?
709
00:27:31.590 --> 00:27:33.390
Well, there's a limitation on it
710
00:27:33.390 --> 00:27:35.730
in the fact that the person who is going to sign it,
711
00:27:35.730 --> 00:27:39.660
both the mother and the father-to-be have to sign it.
712
00:27:39.660 --> 00:27:42.870
And they are both obligating to parent the child together.
713
00:27:42.870 --> 00:27:46.020
And so, for the person who is stepping up as,
714
00:27:46.020 --> 00:27:48.630
in most cases, the punitive father,
715
00:27:48.630 --> 00:27:50.730
as the to-be legal father,
716
00:27:50.730 --> 00:27:54.360
that person's taking on intense responsibilities
717
00:27:54.360 --> 00:27:56.640
that will carry forward with him for the rest of his life,
718
00:27:56.640 --> 00:27:58.650
certainly through the rest of the child's minority.
719
00:27:58.650 --> 00:28:00.429
So if anyone-
In fact, the statute-
720
00:28:00.429 --> 00:28:01.262
I'm sorry, your Honor.
721
00:28:01.262 --> 00:28:02.820
If you're willing to do it, then,
722
00:28:03.750 --> 00:28:07.998
and the other person is willing to have you do it as well,
723
00:28:07.998 --> 00:28:09.390
those are the limitations.
724
00:28:09.390 --> 00:28:11.250
It's not biological,
725
00:28:11.250 --> 00:28:15.660
or a product of artificial insemination.
726
00:28:15.660 --> 00:28:18.420
That's not the driving force of a VAP?
727
00:28:18.420 --> 00:28:19.530
It's absolutely correct, your Honor.
728
00:28:19.530 --> 00:28:21.540
There's absolutely nothing in the statute that requires it,
729
00:28:21.540 --> 00:28:23.240
there's nothing in the case law of
730
00:28:24.297 --> 00:28:27.360
this court, or the state of Massachusetts, that requires it.
731
00:28:27.360 --> 00:28:28.620
And it-
Yeah.
732
00:28:28.620 --> 00:28:29.453
Justice.
733
00:28:29.453 --> 00:28:31.383
So, this father,
734
00:28:32.340 --> 00:28:33.360
biological father,
735
00:28:33.360 --> 00:28:35.580
isn't really in the best position.
736
00:28:35.580 --> 00:28:36.870
But,
737
00:28:36.870 --> 00:28:39.420
I guess my concern is,
738
00:28:39.420 --> 00:28:40.950
and I don't know if you read
739
00:28:40.950 --> 00:28:43.950
the Veteran's Legal Services Amicus letter,
740
00:28:43.950 --> 00:28:45.990
which was really thoughtful,
741
00:28:45.990 --> 00:28:46.860
is,
742
00:28:46.860 --> 00:28:50.040
what if the VAP
743
00:28:50.040 --> 00:28:51.930
is signed by somebody
744
00:28:51.930 --> 00:28:55.680
who doesn't necessarily have that much of a connection?
745
00:28:55.680 --> 00:28:57.810
I mean, the mother here,
746
00:28:57.810 --> 00:29:01.860
a couple times was manipulative.
747
00:29:01.860 --> 00:29:04.810
Let's say that you have a situation where
748
00:29:05.790 --> 00:29:07.930
you have a biological father
749
00:29:08.940 --> 00:29:09.813
and,
750
00:29:11.040 --> 00:29:12.450
he's not doing great in life.
751
00:29:12.450 --> 00:29:14.430
There's always the possibility of redemption.
752
00:29:14.430 --> 00:29:16.470
He's the biological father.
753
00:29:16.470 --> 00:29:19.410
And he's now in a position in his life
754
00:29:19.410 --> 00:29:21.280
where he really wants to
755
00:29:22.920 --> 00:29:25.500
be a father, and take care of his kid,
756
00:29:25.500 --> 00:29:27.450
and he doesn't have a substantial relationship.
757
00:29:27.450 --> 00:29:31.350
He's not going to go anywhere under
758
00:29:31.350 --> 00:29:32.520
chapter 215.
759
00:29:32.520 --> 00:29:34.960
He's not even going to have a chance to
760
00:29:36.120 --> 00:29:38.910
be able to demonstrate that,
761
00:29:38.910 --> 00:29:42.580
you know, redemption, and that real desire to be
762
00:29:43.890 --> 00:29:47.220
the father of his biological child.
763
00:29:47.220 --> 00:29:48.053
Well, I think that's right, your Honor,
764
00:29:48.053 --> 00:29:50.100
and as Justice Cypher was pointing out,
765
00:29:50.100 --> 00:29:53.340
I mean, that biological father
766
00:29:53.340 --> 00:29:55.380
still has the ability to help.
767
00:29:55.380 --> 00:29:57.630
He still has the ability to provide financial support
768
00:29:57.630 --> 00:29:58.470
if he wants to.
769
00:29:58.470 --> 00:30:01.860
He has the ability to leave money to the child
770
00:30:01.860 --> 00:30:03.090
in his will if he wants to.
771
00:30:03.090 --> 00:30:05.760
He has the ability to be there for the child
772
00:30:05.760 --> 00:30:07.500
if the child wants to come to him
773
00:30:07.500 --> 00:30:08.907
with problems that she's having.
774
00:30:08.907 --> 00:30:12.060
And to the extent that the parents allow that.
775
00:30:12.060 --> 00:30:13.800
And to the extent that the parents allow that.
776
00:30:13.800 --> 00:30:14.633
That's right.
777
00:30:14.633 --> 00:30:16.740
But what this court has always recognized
778
00:30:16.740 --> 00:30:17.940
in all its jurisprudence,
779
00:30:17.940 --> 00:30:19.950
and it should not change that here,
780
00:30:19.950 --> 00:30:23.400
is that the primary interest is the child's interest.
781
00:30:23.400 --> 00:30:26.550
So how could it possibly be in the child's interest,
782
00:30:26.550 --> 00:30:29.700
eight years, now nine years, after she was born,
783
00:30:29.700 --> 00:30:31.717
to have a court say,
784
00:30:31.717 --> 00:30:34.770
"This man that you've always known to be your father
785
00:30:34.770 --> 00:30:35.820
is no longer your father.
786
00:30:35.820 --> 00:30:36.663
This other man is."
787
00:30:36.663 --> 00:30:37.496
And-
I get that.
788
00:30:37.496 --> 00:30:39.303
I get you your facts.
789
00:30:40.500 --> 00:30:41.456
It is, perhaps-
790
00:30:41.456 --> 00:30:43.650
I understand your facts.
I apologize.
791
00:30:43.650 --> 00:30:44.483
They're compelling.
792
00:30:44.483 --> 00:30:45.690
I get it.
793
00:30:45.690 --> 00:30:48.840
I'm just wondering about
794
00:30:48.840 --> 00:30:50.860
a principle here of law
795
00:30:51.780 --> 00:30:52.710
where,
796
00:30:52.710 --> 00:30:57.710
the father on the VAP is not father of the year,
797
00:30:57.930 --> 00:31:00.030
and you have the biological father
798
00:31:00.030 --> 00:31:05.030
who is in a better position than he ever has been before.
799
00:31:05.640 --> 00:31:07.980
Maybe, did a lot of work to get there.
800
00:31:07.980 --> 00:31:11.400
And wants to be able to establish that relationship,
801
00:31:11.400 --> 00:31:12.900
and,
802
00:31:12.900 --> 00:31:15.180
with an obstacle that he doesn't
803
00:31:15.180 --> 00:31:16.530
have a substantial relationship,
804
00:31:16.530 --> 00:31:18.840
he never has a chance.
805
00:31:18.840 --> 00:31:21.690
Unfortunately, your Honor, the law as it stands,
806
00:31:21.690 --> 00:31:24.000
and I think it's based on solid grounds
807
00:31:24.000 --> 00:31:27.150
of recognizing the primacy of the children's right first,
808
00:31:27.150 --> 00:31:30.240
would not give that biological father you're talking about,
809
00:31:30.240 --> 00:31:33.000
or that the VA talked about in their brief,
810
00:31:33.000 --> 00:31:34.650
would not give that father an ability
811
00:31:34.650 --> 00:31:38.670
to establish a formal parenting relationship with the child,
812
00:31:38.670 --> 00:31:41.310
unless the father who did step in,
813
00:31:41.310 --> 00:31:43.050
the legal father in that case,
814
00:31:43.050 --> 00:31:44.580
was found to be an unfit parent
815
00:31:44.580 --> 00:31:46.680
and was stripped of his parental rights.
816
00:31:46.680 --> 00:31:47.853
Unfortunately,
817
00:31:48.750 --> 00:31:51.040
because the child's rights have to
818
00:31:52.110 --> 00:31:56.130
be superior to the rights of this biological father,
819
00:31:56.130 --> 00:31:57.330
there's no other way around that.
820
00:31:57.330 --> 00:31:59.655
I just don't have a better answer for you on that,
821
00:31:59.655 --> 00:32:00.690
your Honor.
It's complicated here,
822
00:32:00.690 --> 00:32:03.570
because the child's interested in who
823
00:32:03.570 --> 00:32:05.760
her biological father is, right?
824
00:32:05.760 --> 00:32:06.723
The child,
825
00:32:07.620 --> 00:32:09.217
your client has told her,
826
00:32:09.217 --> 00:32:12.060
"I'm your father, but I'm not your biological father."
827
00:32:12.060 --> 00:32:13.840
Yes.
The child
828
00:32:14.850 --> 00:32:18.183
is at first confused, and then interested.
829
00:32:19.358 --> 00:32:20.523
And the judge has to,
830
00:32:22.110 --> 00:32:26.913
when the judge does the substantial connection process,
831
00:32:28.050 --> 00:32:30.600
the judge has to take that into account too, right?
832
00:32:31.680 --> 00:32:33.240
Does the judge take that into account?
833
00:32:33.240 --> 00:32:35.910
That, "Look, this child is curious."
834
00:32:35.910 --> 00:32:39.630
I mean a lot of people who don't know their birth parents
835
00:32:39.630 --> 00:32:41.070
and are adopted by someone else,
836
00:32:41.070 --> 00:32:44.070
want to know something about that person.
837
00:32:44.070 --> 00:32:45.060
So how does that
838
00:32:45.060 --> 00:32:45.893
play into this?
Well,
839
00:32:45.893 --> 00:32:46.950
I think that's right, your Honor.
840
00:32:46.950 --> 00:32:48.450
I think children are curious
841
00:32:48.450 --> 00:32:50.130
about who their biological parents are.
842
00:32:50.130 --> 00:32:52.650
And there's ways that children can find out
843
00:32:52.650 --> 00:32:54.660
who their biological parents are,
844
00:32:54.660 --> 00:32:58.380
which stop well short of making that biological parent
845
00:32:58.380 --> 00:32:59.340
their new father,
846
00:32:59.340 --> 00:33:01.260
as opposed to the person who's been raising them
847
00:33:01.260 --> 00:33:02.550
for all those years.
848
00:33:02.550 --> 00:33:04.620
So that's not part-
849
00:33:04.620 --> 00:33:06.300
To be fair to your opponent,
850
00:33:06.300 --> 00:33:09.180
they're saying they want to be in the game,
851
00:33:09.180 --> 00:33:11.760
they don't want to take over the game.
852
00:33:11.760 --> 00:33:15.510
They're not saying that your client is no longer the father.
853
00:33:15.510 --> 00:33:18.570
They're saying, basically, "I wanna be a dad too."
854
00:33:18.570 --> 00:33:19.500
Well-
You know, I mean,
855
00:33:19.500 --> 00:33:21.800
I understand that that's complicated (laughs).
856
00:33:22.680 --> 00:33:25.860
It's complicated because, as Justice Cypher was saying,
857
00:33:25.860 --> 00:33:27.210
the biological father,
858
00:33:27.210 --> 00:33:28.800
the alleged biological father,
859
00:33:28.800 --> 00:33:30.390
'cause there's no evidence in front of the court
860
00:33:30.390 --> 00:33:32.040
that he is the biological father yet.
861
00:33:32.040 --> 00:33:36.360
He has the ability to participate in that child's life,
862
00:33:36.360 --> 00:33:38.880
to the extent financially that he wants to,
863
00:33:38.880 --> 00:33:41.040
and to the extent that the parents allow him to be.
864
00:33:41.040 --> 00:33:42.690
But what he's seeking for here,
865
00:33:42.690 --> 00:33:44.490
by an adjudication of parentage,
866
00:33:44.490 --> 00:33:46.980
he's seeking a seat at the table.
867
00:33:46.980 --> 00:33:49.053
He is seeking at least the ability
868
00:33:49.053 --> 00:33:52.860
to ask the probate court, dictate to the parents,
869
00:33:52.860 --> 00:33:55.170
what this child's life should be like,
870
00:33:55.170 --> 00:33:58.140
what the decisions should be made for this child,
871
00:33:58.140 --> 00:33:59.910
that he's not entitled to.
872
00:33:59.910 --> 00:34:01.650
He may have been entitled to,
873
00:34:01.650 --> 00:34:02.820
he would've been entitled to that
874
00:34:02.820 --> 00:34:04.140
had he proved his parentage
875
00:34:04.140 --> 00:34:06.427
within the time allotted by 209C.
876
00:34:06.427 --> 00:34:08.486
[Chief Justice Budd] Speaking of that,
877
00:34:08.486 --> 00:34:11.340
what effect does that have on standing?
878
00:34:11.340 --> 00:34:12.173
On his standing?
879
00:34:12.173 --> 00:34:13.080
[Chief Justice Budd] Yeah, his standing
880
00:34:13.080 --> 00:34:15.570
to bring this under that one year.
881
00:34:15.570 --> 00:34:16.403
Well,
882
00:34:17.490 --> 00:34:20.070
under 209C, he has no standing to bring this,
883
00:34:20.070 --> 00:34:21.600
because the one year is past,
884
00:34:21.600 --> 00:34:24.960
and that is strictly a creature of the statute.
885
00:34:24.960 --> 00:34:27.060
And there's no leeway on that.
886
00:34:27.060 --> 00:34:29.220
With respect to his bringing his equity claim,
887
00:34:29.220 --> 00:34:31.530
he does have the ability to bring that anytime,
888
00:34:31.530 --> 00:34:35.430
but he has to pass this court's
889
00:34:35.430 --> 00:34:39.300
C.C. vs. A.B. substantial parent child relationship test
890
00:34:39.300 --> 00:34:40.500
to do that.
891
00:34:40.500 --> 00:34:43.170
I thought you were gonna say some more about the VAP.
892
00:34:43.170 --> 00:34:44.580
Did you say you had four things to say?
893
00:34:44.580 --> 00:34:46.246
I did have four, and I'm not sure how many
894
00:34:46.246 --> 00:34:47.423
I actually got to.
You only got to one.
895
00:34:47.423 --> 00:34:48.256
(person laughs)
But the first one is, like-
896
00:34:48.256 --> 00:34:49.200
No, I don't even think
897
00:34:49.200 --> 00:34:50.033
you got to one,
898
00:34:50.033 --> 00:34:50.866
because before you
899
00:34:50.866 --> 00:34:51.699
got started-
(laughs) Okay.
900
00:34:51.699 --> 00:34:53.393
Justice Kafker asked about the statute.
901
00:34:53.393 --> 00:34:54.600
It's my fault.
Well, the first one is-
902
00:34:54.600 --> 00:34:56.550
I apologize.
No, and then Justice Lowy
903
00:34:56.550 --> 00:34:57.510
interrupted you as well.
904
00:34:57.510 --> 00:34:58.343
Go on.
(people laugh)
905
00:34:58.343 --> 00:34:59.718
I appreciated the interruption.
906
00:34:59.718 --> 00:35:00.551
(Chief Justice laughs)
907
00:35:00.551 --> 00:35:02.580
The first point is that we shouldn't be talking
908
00:35:02.580 --> 00:35:04.410
about fraud or perjury anyway,
909
00:35:04.410 --> 00:35:06.510
because there's absolutely no evidence in this record
910
00:35:06.510 --> 00:35:08.340
that there was an intent to deceive,
911
00:35:08.340 --> 00:35:11.430
nor is there any evidence that alleged biological,
912
00:35:11.430 --> 00:35:12.390
and I pointed to her this time,
913
00:35:12.390 --> 00:35:14.220
she's not the alleged biological father.
914
00:35:14.220 --> 00:35:16.650
There's no evidence that the alleged biological father
915
00:35:16.650 --> 00:35:18.270
actually relied on this VAP.
916
00:35:18.270 --> 00:35:19.500
He never saw it.
917
00:35:19.500 --> 00:35:23.280
But the second point is perhaps a more important one,
918
00:35:23.280 --> 00:35:25.230
at the time this
919
00:35:25.230 --> 00:35:29.010
voluntary acknowledgement was signed in 2016,
920
00:35:29.010 --> 00:35:30.420
as we've already talked about,
921
00:35:30.420 --> 00:35:34.090
209C, the legislature has already not required
922
00:35:34.950 --> 00:35:37.170
a biological connection to sign that form.
923
00:35:37.170 --> 00:35:41.490
And this court, in the Partanen case,
924
00:35:41.490 --> 00:35:43.747
basically said,
925
00:35:43.747 --> 00:35:47.100
"It's not important for you to be a biological parent
926
00:35:47.100 --> 00:35:47.933
to sign this form,
927
00:35:47.933 --> 00:35:49.710
and we're gonna uphold this form,
928
00:35:49.710 --> 00:35:52.020
even if you're not the biological parent."
929
00:35:52.020 --> 00:35:56.100
So when this form was actually signed in November of 2016,
930
00:35:56.100 --> 00:35:58.410
it was the law of Massachusetts,
931
00:35:58.410 --> 00:36:00.000
as expressed by this court,
932
00:36:00.000 --> 00:36:01.680
that it's okay to sign that form
933
00:36:01.680 --> 00:36:03.960
even if you're not the biological parent.
934
00:36:03.960 --> 00:36:04.940
So we-
But Partanen
935
00:36:04.940 --> 00:36:06.900
is the California case, right?
936
00:36:06.900 --> 00:36:08.250
No, Partanen is the case
937
00:36:08.250 --> 00:36:09.360
in front of this court, your Honor.
938
00:36:09.360 --> 00:36:10.710
No, but it involved
939
00:36:10.710 --> 00:36:15.176
the woman taking the child to California, or Oregon?
940
00:36:15.176 --> 00:36:17.346
It's the-
It doesn't really interpret-
941
00:36:17.346 --> 00:36:18.883
[Attorney LaRochelle] It's the same sex parent case.
942
00:36:18.883 --> 00:36:19.950
Yes, your Honor.
Doesn't really
943
00:36:19.950 --> 00:36:22.261
interpret this stuff, does it?
944
00:36:22.261 --> 00:36:24.751
It doesn't interpret VAPs or anything else.
945
00:36:24.751 --> 00:36:26.347
I looked at it, 'cause I thought,
946
00:36:26.347 --> 00:36:28.200
"Oh, this is gonna be simple!"
947
00:36:28.200 --> 00:36:30.240
But it's kind of tangential,
948
00:36:30.240 --> 00:36:31.620
isn't it?
It doesn't specifically
949
00:36:31.620 --> 00:36:34.320
say that, but the court does
950
00:36:34.320 --> 00:36:37.350
uphold a VAP which was demonstrated
951
00:36:37.350 --> 00:36:41.040
to be not signed by biological parents.
952
00:36:41.040 --> 00:36:43.080
So there was a VAP in that case?
953
00:36:43.080 --> 00:36:44.453
Yes, there was.
Okay.
954
00:36:45.340 --> 00:36:46.740
Yeah.
Okay.
955
00:36:46.740 --> 00:36:47.770
And the third point-
956
00:36:47.770 --> 00:36:49.290
So in that case,
957
00:36:49.290 --> 00:36:50.550
it's a gay couple,
958
00:36:50.550 --> 00:36:52.680
and it's an artificial insemination.
959
00:36:52.680 --> 00:36:55.050
So, it's a little different,
960
00:36:55.050 --> 00:36:56.820
right?
We're still talking
961
00:36:56.820 --> 00:36:58.740
about non-biological,
962
00:36:58.740 --> 00:37:02.160
or a biological parent as opposed to a non-biological
963
00:37:02.160 --> 00:37:04.473
who had taken control of the child's life.
964
00:37:05.730 --> 00:37:09.150
The third point I wanted to make was that
965
00:37:09.150 --> 00:37:13.023
if this form did contain a misstatement, which it did,
966
00:37:14.130 --> 00:37:17.100
the legislature who created
967
00:37:17.100 --> 00:37:19.650
the whole mechanism,
968
00:37:19.650 --> 00:37:22.050
set forth exactly what the remedy is
969
00:37:22.050 --> 00:37:24.960
to resolve that misstatement,
970
00:37:24.960 --> 00:37:29.960
it's to challenge the form within one year of signing.
971
00:37:30.150 --> 00:37:31.230
That's it.
972
00:37:31.230 --> 00:37:34.590
And in this case, it was not challenged within one year.
973
00:37:34.590 --> 00:37:37.170
And the one year is really important,
974
00:37:37.170 --> 00:37:39.390
because the legislature made the decision
975
00:37:39.390 --> 00:37:42.630
that after one year of someone else,
976
00:37:42.630 --> 00:37:44.430
the person who signed the VAP,
977
00:37:44.430 --> 00:37:46.800
acting as this person's parent,
978
00:37:46.800 --> 00:37:49.590
establishing a parent-child relationship,
979
00:37:49.590 --> 00:37:51.690
it's not in the child's best interest
980
00:37:51.690 --> 00:37:54.750
to, in any way, challenge that VAP now
981
00:37:54.750 --> 00:37:57.570
and say, "Well maybe this person you've come to rely on,
982
00:37:57.570 --> 00:37:59.220
maybe that person's not really your dad,
983
00:37:59.220 --> 00:38:01.440
we're maybe gonna give you a different dad."
984
00:38:01.440 --> 00:38:02.273
But in that-
And the-
985
00:38:02.273 --> 00:38:03.840
That includes
986
00:38:03.840 --> 00:38:07.110
whether the bio dad knows anything about this or not.
987
00:38:07.110 --> 00:38:09.300
Whether the bio dad has been around,
988
00:38:09.300 --> 00:38:10.920
as in this case,
989
00:38:10.920 --> 00:38:15.030
and might have been able to look into things but didn't,
990
00:38:15.030 --> 00:38:17.520
I don't know if he ever could have found out.
991
00:38:17.520 --> 00:38:20.850
But what about the person that Justice Lowy pointed to,
992
00:38:20.850 --> 00:38:23.310
the example of somebody who's been away,
993
00:38:23.310 --> 00:38:26.670
knows nothing about a VAP being signed
994
00:38:26.670 --> 00:38:29.910
and loses his chance
995
00:38:29.910 --> 00:38:32.100
because he doesn't know about his chance?
996
00:38:32.100 --> 00:38:32.940
Two things about that.
997
00:38:32.940 --> 00:38:35.160
First of all, that's clearly not this case,
998
00:38:35.160 --> 00:38:35.993
because this-
I understand.
999
00:38:35.993 --> 00:38:37.260
I understand.
This alleged father
1000
00:38:37.260 --> 00:38:38.190
did know.
1001
00:38:38.190 --> 00:38:39.690
The second thing about that is
1002
00:38:41.490 --> 00:38:43.890
you mentioned earlier on questioning Attorney Lord,
1003
00:38:43.890 --> 00:38:45.450
that it was a statute of limitations.
1004
00:38:45.450 --> 00:38:47.400
I don't think it's a statute of limitations.
1005
00:38:47.400 --> 00:38:49.080
It's a statute of repose.
1006
00:38:49.080 --> 00:38:50.730
Okay.
It's reposed for the child
1007
00:38:50.730 --> 00:38:52.320
to be able to rely on the fact
1008
00:38:52.320 --> 00:38:53.850
that the person who's been her father
1009
00:38:53.850 --> 00:38:55.560
for at least 12 months,
1010
00:38:55.560 --> 00:38:57.420
will continue to be her father.
1011
00:38:57.420 --> 00:38:59.550
I'm not saying that anything should happen to that.
1012
00:38:59.550 --> 00:39:00.383
It's just,
1013
00:39:01.230 --> 00:39:05.070
what I'm trying to understand is under chapter 215,
1014
00:39:05.070 --> 00:39:08.520
that a substantial relationship,
1015
00:39:08.520 --> 00:39:10.450
even if you're not trying to displace
1016
00:39:11.370 --> 00:39:14.130
the father who's on the VAP.
1017
00:39:14.130 --> 00:39:16.500
No one wants to displace the father on the VAP,
1018
00:39:16.500 --> 00:39:18.420
in my hypothetical.
1019
00:39:18.420 --> 00:39:20.280
Father's doing a great job.
1020
00:39:20.280 --> 00:39:23.340
It's just some person who didn't know anything about this
1021
00:39:23.340 --> 00:39:25.620
or was not in a position in his life,
1022
00:39:25.620 --> 00:39:28.413
he had issues that he's come back from,
1023
00:39:30.000 --> 00:39:34.410
hoping maybe to be able to have parenting time,
1024
00:39:34.410 --> 00:39:37.560
even if the parents don't want him to.
1025
00:39:37.560 --> 00:39:40.410
It's not that that judge should order that.
1026
00:39:40.410 --> 00:39:43.620
It's that the judge never can consider that,
1027
00:39:43.620 --> 00:39:48.620
because the threshold for substantial relationship
1028
00:39:48.630 --> 00:39:50.733
can't be satisfied.
Well the-
1029
00:39:50.733 --> 00:39:53.307
Under 215?
Under 215.
1030
00:39:53.307 --> 00:39:55.830
The substantial parent-child relationship relates
1031
00:39:55.830 --> 00:39:58.140
to an actual adjudication of parentage.
1032
00:39:58.140 --> 00:39:59.430
Not a de facto parent,
1033
00:39:59.430 --> 00:40:02.043
not an adult who's coming in and asking the court,
1034
00:40:03.127 --> 00:40:04.860
"I need to have time with this child
1035
00:40:04.860 --> 00:40:06.780
because it's in the child's best interest."
1036
00:40:06.780 --> 00:40:10.177
This case was not brought by the punitive father as,
1037
00:40:10.177 --> 00:40:11.640
"I want to be the de facto parent.
1038
00:40:11.640 --> 00:40:13.440
I want to have parenting time."
1039
00:40:13.440 --> 00:40:15.360
That would be a different analysis.
1040
00:40:15.360 --> 00:40:16.680
And in that case,
1041
00:40:16.680 --> 00:40:18.090
you wouldn't have a substantial
1042
00:40:18.090 --> 00:40:20.130
parent-child relationship threshold.
1043
00:40:20.130 --> 00:40:23.220
You would just have a best interest of the child threshold,
1044
00:40:23.220 --> 00:40:26.460
or, standard that you'd have to meet.
1045
00:40:26.460 --> 00:40:27.480
But that's not this case.
1046
00:40:27.480 --> 00:40:28.448
That's not the posture of how-
Wait, what is that
1047
00:40:28.448 --> 00:40:29.490
case though?
This case was brought.
1048
00:40:29.490 --> 00:40:31.920
What's the statute under which a person
1049
00:40:31.920 --> 00:40:34.110
who wanted to do that-
1050
00:40:34.110 --> 00:40:36.510
I don't even know if there is a statute, your Honor,
1051
00:40:36.510 --> 00:40:39.060
but that's how the probate courts have handled it.
1052
00:40:39.060 --> 00:40:40.950
It doesn't matter if that's not this case,
1053
00:40:40.950 --> 00:40:42.990
if there's no other vehicle.
1054
00:40:42.990 --> 00:40:43.950
But isn't the only,
1055
00:40:43.950 --> 00:40:47.340
there's a 209 vehicle and the 215 vehicle, right?
1056
00:40:47.340 --> 00:40:49.260
You're either in the one year vehicle
1057
00:40:49.260 --> 00:40:53.040
where you can prove that you're the parent,
1058
00:40:53.040 --> 00:40:54.693
you're a biological parent,
1059
00:40:55.530 --> 00:40:57.750
or you're in the 215, right?
1060
00:40:57.750 --> 00:41:00.210
There's not a third road here,
1061
00:41:00.210 --> 00:41:01.740
is there?
Not to establish
1062
00:41:01.740 --> 00:41:02.820
legal parentage.
1063
00:41:02.820 --> 00:41:03.653
No, there's not.
1064
00:41:03.653 --> 00:41:04.486
Right.
1065
00:41:04.486 --> 00:41:05.550
There's only those two roads.
And isn't the reason
1066
00:41:05.550 --> 00:41:09.030
for that is that time is of the essence for children?
1067
00:41:09.030 --> 00:41:09.863
It really is!
1068
00:41:09.863 --> 00:41:12.390
I mean there is an interest that certainly the child has,
1069
00:41:12.390 --> 00:41:15.390
but everyone has in a finality of a paternity judgment.
1070
00:41:15.390 --> 00:41:17.280
Because if we wait too long
1071
00:41:17.280 --> 00:41:19.890
and the child develops this relationship with a new man
1072
00:41:19.890 --> 00:41:23.310
and doesn't know this stranger to be her father,
1073
00:41:23.310 --> 00:41:26.550
it becomes more and more damaging to her the longer we wait.
1074
00:41:26.550 --> 00:41:29.400
The legislature has said one year on 208C,
1075
00:41:29.400 --> 00:41:32.220
and this court has set the substantial relationship test
1076
00:41:32.220 --> 00:41:34.740
as being the standard on cases of equity.
1077
00:41:34.740 --> 00:41:36.804
And those standards-
1078
00:41:36.804 --> 00:41:38.100
(microphone scrapes)
Excuse me,
1079
00:41:38.100 --> 00:41:41.640
both protect the child, primarily.
1080
00:41:41.640 --> 00:41:44.460
And that's really where this jurisprudence should be.
1081
00:41:44.460 --> 00:41:46.110
It should be in the interest of the child.
1082
00:41:46.110 --> 00:41:48.570
Are they mutually exclusive?
1083
00:41:48.570 --> 00:41:53.260
'Cause I'm not interested in displacing a father
1084
00:41:54.240 --> 00:41:57.177
and it not being in the best interest of the child.
1085
00:41:57.177 --> 00:42:00.780
The best interest of the child is what it's all about.
1086
00:42:00.780 --> 00:42:02.400
But are they mutually exclusive?
1087
00:42:02.400 --> 00:42:04.420
Does that mean a biological father
1088
00:42:05.365 --> 00:42:06.900
who would have no way to know
1089
00:42:06.900 --> 00:42:09.150
and wouldn't be able to establish
1090
00:42:09.150 --> 00:42:10.770
a substantial relationship,
1091
00:42:10.770 --> 00:42:14.861
there's no third door, it's 209C, or 215, right?
1092
00:42:14.861 --> 00:42:17.107
That father doesn't have a chance to say,
1093
00:42:17.107 --> 00:42:18.360
"Well, you know,
1094
00:42:18.360 --> 00:42:21.330
I'd like to be able to see the child every two weeks,"
1095
00:42:21.330 --> 00:42:22.410
or something.
That's correct.
1096
00:42:22.410 --> 00:42:23.427
I believe that's correct, your Honor.
1097
00:42:23.427 --> 00:42:27.570
But he could do that through asking the parents.
1098
00:42:27.570 --> 00:42:29.040
Always through asking the parents.
1099
00:42:29.040 --> 00:42:30.206
That's always an avenue.
1100
00:42:30.206 --> 00:42:31.830
But not through the courts.
1101
00:42:31.830 --> 00:42:33.180
That's correct, your Honor.