-: SJAC-13295,
in the matter of an impounded case.
-: Okay, Attorney Lord.
-: Good morning.
May it please the court.
My name is Buffy Lord.
I'm from Donovan O'Connor & Dodig,
and I am here representing the biological father.
We are asking
that the court reverse the trial court judgment,
and remand the matter for further proceedings,
including confirmatory DNA testing
and a hearing and determination
as to the parental rights and obligations
of all three parents at issue in this matter.
The biological father in this case has standing
to proceed under chapter 209C,
or 215, because the child was born out of wedlock,
and there are complaints filed under both chapters.
-: Is there a reason, with regard to the timing,
why this is happening now?
It's not as if he didn't know about the child.
-: That is correct.
He did know that Mother had a child.
-: Yep. -: In fact, he and mother
share a child together.
At the time the child was born,
mother expressed to biological father
that he was not the father,
and that, in fact, somebody else was.
-: Did he ever, like, ask the next question;
"How do you know?"
-: He was aware that she'd engaged in sexual congress
with other men. -: No, I'm saying-
-: Oh! -: "How do you know
it's not me? (Attorney Lord laughs) How do you know
I'm not the father?"
(Chief Justice Budd laughs) -: Yes, your Honor,
I believe that he left the implication as to the timing
to the person who in fact has the biology
to know the likelihood
of conception based upon- -: Oh, he didn't ask
the next question.
-: I don't believe he asked
the particular day she thought she conceived.
-: Well, no, I don't mean for,
I just mean (sighs),
I don't think you have to ask,
"What day did you conceive?"
to be more curious about, you know, is there a chance-
I'd like to hear more.
-: Yes. -: You know,
if I might be the father,
I'd like to hear more, other than,
"No, you're not the father."
-: Yes, your Honor.
And I think in this case,
one of the things that I would point out is that
he had reasonable reliance on her.
You know, she admitted that she'd had intercourse
with other people,
she had had a child with him before in the past,
and when asked if he was the father,
she in fact answered in the affirmative.
So I think that it was reasonable for him
to believe that she would tell him the truth.
-: [Chief Justice Budd] And the truth
as she believes it to be,
or just because she- -: I think the truth
as she believes it to be, your Honor.
At the time,
and as you can see from the history set forth in our brief,
she in fact thought that there were two other candidates
that presented a more likely option.
Our client,
I don't know that the record knows
that he knew that there were three other candidates.
The record does not indicate
that he had any knowledge at any point
that she in fact tested and excluded other people,
which then, of course,
I think would increase the chance
that maybe he should have asked more.
But if you don't know- -: But if he'd wanted
to find out if he were the dad,
he could have absolutely done so, right?
You know, and that's,
you know, we want people who may be dads
to come forward,
and he had a way of doing it at the time,
and he knew he was in the ballpark of nine months,
right?
He certainly could have found out whether he was dad.
-: Your Honor, he could have
filed a complaint for parentage-
-: If he'd wanted to make sure, he could have,
you know.
He wasn't (laughs) looking to find out
whether he was or he wasn't, right?
-: I think that
I would be hard pressed to say that he took her to court.
You know, he did not do those things.
He relied on her representations.
I think he was reasonable
to do so- -: With,
I'm sorry, go ahead, finish. -: And I would say that,
you know, to the extent
that he is now precluded from coming forward,
because somebody signed an acknowledgement of parentage
that they knew to be
inaccurate.
-: That was one,
my other question is,
signing one of these VAPs,
is it a statement of biological parenthood,
or is a statement of,
"I acknowledge parenthood," in a broader sense?
'Cause, especially in the modern world,
we've been, right, very accepting of these
from people who couldn't be the biological parent,
right? -: Correct, your Honor.
But the form itself
states that it is under the pains and penalties of perjury.
-: But what are you saying? -: What does it say exactly?
-: Yeah.
When you say that,
(microphone thuds) right, sorry.
-: It affirms that, under the pains and penalties of perjury,
that you believe your statements on the form to be true.
And then the statement is that you are,
in fact, the biological parents of the child.
Justice Cypher: And it says that on there,
it says biological parent?
-: It does on the form that was signed in this case.
I do know that there is now an
(volume elevates), oh, excuse me,
an (laughs) alternate form that is available.
And what form allows,
is, first of all, it has gender neutral terms,
so it doesn't say mother and father,
it says parent one, parent two.
And then when you get down to the boxes
where you begin to check,
the first box that the parties can check
is that you are the biological parents of the child.
-: So that, I'm sorry, just to clarify,
that new form was not available at the time?
Attorney Lord: It was not available
at the time, your Honor. -: Were there other forms
that were available to this-
-: As far as I know,
this was the form that was available from the state.
And if you wanted to proceed-
-: So in order to do the VAP,
this was
the form available?
-: Correct. -: Okay.
-: And, as
was pointed out by Justice Kafker, yes,
my client, in fact,
could have filed a complaint for parentage,
and I cannot state otherwise.
-: What would be the impact though now of saying,
"Okay, you're right, he is.
He's got the responsibility."
Is there any retroactive child support issue?
-: Well, I don't believe so in this particular case,
because there's been no child support paid by either,
I'm gonna call them biological
and legal father for now- -: How would that matter?
-: Because there's been no order,
so there wouldn't be a retro award available,
I wouldn't believe. -: Well, but somebody
could seek it, couldn't they?
-: They could.
And that could be on a case by case basis.
And back to the point I was making earlier is that,
although my client did not
in fact file a complaint for parentage,
neither did mother and legal father in this case,
file a complaint to adopt,
or a petition to adopt, right?
So acknowledging, I agree-
-: That's expensive though, right?
The VAP is
every person's ability to become a parent,
as opposed to adoption,
you need a lawyer, you gotta, you know,
it's a much more-
-: Because you're terminating somebody's rights.
And so, as I was saying on the VAP form,
or the form that presently exists,
although I'm going to also admit
that I had trouble locating one (laughs)
that didn't have sample stamped across the top.
I don't know if it's just a function of being a layperson
versus having it available at a hospital, or another thing.
The first box that can be checked is that you are,
in fact, the biological parents.
The next box lets you check that you,
rather than being the biological parents,
in fact, the child was born
through assistive reproductive technology.
So that allows
someone to come forward,
they are not the biological parent,
but they are the parent of the child.
And again, we're recognizing
that when someone uses assistive reproductive technology,
that the person donating biological material at the time
is either an unknown donor,
and the person went to a clinic
and, you know, thus it's an arms length transaction
and we don't know who they are,
or if they're a known donor,
we would anticipate
that the parties would have an underlying agreement
that says, "You know, I'm donating material,
there's a hope or an expectation that there'll be a child,
but I understand that I'm
not maintaining a parental interest in this child."
And so we would argue that, in this case,
that we have a child born out of wedlock,
the plain language of the statute under 209C
only prohibits a putative biological father
from coming forward if the parties are married
at the time of conception or birth.
So, you know, our first argument is
that our client should have been allowed to proceed under-
-: You think that statute's pretty still constitutional?
I mean, in light of everything now?
-: In light of the decision where we have
to read the statute gender neutral,
and kind of the, yes.
So, the word married is still the word married,
and all people, regardless of their sexual orientation,
can get married.
So, (laughs) it says married- -: (laughs) Okay, all right.
We can leave it there. -: But, you know, to that end,
we would argue that, in fact,
if what we are saying is
that any time there is a legal father
on the birth certificate,
so if we extend it past there,
our argument would then be,
"Okay, there is a legal father on the birth certificate."
So question one is, did we execute this in good faith?
Right?
Did we believe ourselves to have been a parent?
And if we're not the parent
and we don't have an underlying agreement
and we have some knowledge that it might not be,
I would argue that my client is not the person
who disrupted the family unit.
It's the people who signed it- -: But what's in
the best interest of the child, though,
don't we have to reach that,
and really, seriously consider that here?
-: I actually agree, your Honor,
but we don't get there,
because what happens now
is that if you file under 209C,
again, if we presume we went forward under 209C,
the first thing would be a hearing
where there's a finding about whether or not
by clear and convincing evidence,
there's a possibility of paternity or parentage.
Once that determination has been made,
section 17 requires a confirmatory DNA test.
And then, although the statutory seems,
doesn't say it,
the next phase would be a hearing
on what's in the best interest of the child.
And we agree that the nature and extent
of any prior relationship is a big factor
in what's in the child's best interest.
But we don't think it's the threshold inquiry.
And that by treating it as such,
we've created a bar to somebody coming forward.
So likewise, I would go so far as to say
that even in a case that's brought under 215,
even in a case where you
have the presumption of parentage based upon marriage,
I think that it would be appropriate
for a third party to be able to come forward
if they have a belief that they're the parent
and that they would be entitled to the hearing
on whether or not there's a possibility they were a parent.
-: Even though, in this case, there's no doubt,
again, he knew he was in the realm of possibility.
He knows the mother,
he knows he was sleeping with the mother around that time.
So why should we let him sit on his rights that long?
I understand, yes,
if he'd been shipped out to sea,
and, you know, incommunicado
for (laughs) a year, maybe this might be different,
but he's not.
He knows about this,
and he could have done something about it,
and now we're allowing him to come back
six (laughs) years later, or whatever.
-: We're allowing him to come back.
We're allowing him to have status as a parent.
That does not mean that he is going
to have the same parental rights as the other two parents.
You know,
I feel that we keep- -: No, but we,
I mean,
Judge Simons does something that seems very sensible.
If this had been filed within a year, then,
we're in a different category.
But if he waits six years,
then we apply this substantial connection
or whatever the proper terminology is.
And it seems appropriate because,
why are we having him become a dad after six years
when he could have been a dad
within, you know, six days of the birth?
-: I understand, and I presume to some degree
there's a focus on layer, which is,
you know, you have to grasp your parental responsibility.
The argument there is that, yes,
he was one of multiple possibilities.
He was told it wasn't likely.
And I think it's reasonable that he rely on that.
You know, instead we're saying that we would rather
have more litigation,
when the parties were frankly parenting,
our client actually,
although not as close a relationship
as it is with legal father,
as, again, I'm just trying to make sure it's clear,
they have a relationship.
They've spent holidays together,
he's spent birthdays with her,
they share a sibling.
In fact, both legal father and biological father
have another child with this mother.
So this
family unit
is changing, and it's large.
And I think that that's part of the problem
with the cases as they exist,
is the cases
all stem from this idea
that the societal impact of illegitimacy
is so terrible that it must be avoided at all costs.
And they also seem to relate to this fiction
that there are these intact, traditional,
quote, unquote, "normal" family units.
And I think that- -: I don't know
if that's the case.
I think you're sort of turning it on its head a little bit,
because you're,
(sighs) I mean, this Mr. Mercer steps up.
Now you look at what he's done as problematic,
but he, you know,
and again, we're gonna ask your brother when he gets up,
you know, essentially,
is the VAP
process limited to biological
or assisted reproductivity,
or does it allow this third category of person,
which is basically-
-: Someone who parents? -: "I wanna help out,
I wanna be a dad."
You know, "I wanna be this dad
"'cause I'm basically acting as this dad."
And it, you know- -: I'm sorry, your Honor.
-: No, go ahead.
-: I would argue that,
in fact, I don't find legal father stepping up to be
problematic in the sense
that all children need all the parents
and all the family they can have, to be supported.
And I think that the VAP could be changed,
but the VAP form as it exists,
does not state that.
But I- -: The statutes say it,
or is this,
you know, the happenstance of the clerk's office
putting together this form that way?
Does the statute say,
"You're the biological parent,"
or is that the clerk's office embellishment of that?
-: I do not know, your Honor,
I'd be happy to file a supplemental material under rule 16,
if you would like, on that issue.
-: I remember looking around at the statute
and I didn't see the word biological.
And then I was looking for the form.
Is the form actually in the record?
I couldn't find it
and I didn't- -: I believe the form is
in your record, but again, if the court would like,
I would be pleased to send you both versions of the form
under the supplemental materials rule.
-: I think it is in the- -: Okay you found the form?
-: I believe it is, your Honor.
But, so I would again argue that, you know, in this case,
far from trying to deprive the legal father of status,
that we would in fact think that
the court should hold a hearing
as to the best interest of the children,
and there's no prohibition
on a child having legal and physical custody
with more than two people.
I would point to the 1944 case,
sorry, I apologize, as I flip pages,
that discusses that issue.
In fact, you know, they had more than two parents, so.
And the one last point I'd like to make,
I realize my time is running out,
is that as it relates to de facto parent status,
you know, there's some concern that,
and we use the term de facto status
for where we think legal father might fall into.
We don't intend or believe
that a de facto parent should be a second tier parent,
or as has been intimated in some of the briefs,
that it's some lesser class of parent.
There is no statutory authority for de facto parents.
It is a case law animal,
and there has been no finding
that, in fact, legal and physical custodial rights
can't follow de facto parent status.
So, you know, we think that when we look
at the evolving family,
that a child can have more than two parents,
that some will be biologically related,
some will not be biologically related.
You know, we don't intend to cut out
any of the family unit,
what we're simply saying
is that the substantial relationship test
is not the threshold burden,
that is one factor
that goes into the best interest of the child, standard.
But first we have to get past the gate keeping function
of the court, which is- -: Can I just
ask a question about that? -: Yes, your Honor.
-: So,
it's not under 209C, but is it under
215?
-: The substantial relationship test, your Honor?
Yes.
That test, so, general law,
215 section 6 is the general equity powers of the court.
There is no express statutory authority
for the substantial relationship test or when it applies,
it's, again, a function of case law.
-: Yep. -: And in those cases,
with the substantial relationship test,
we had somebody coming into a marriage,
and again, I would would point to the fact
that, you know, we have outdated notions,
at that point, of family,
and it stemmed a lot from societal implications.
-: But I guess I just wanted to know
that's what we use the substantial relationship test for.
-: Children born in wedlock- -: For 215.
-: Where somebody is coming in that is not the husband,
seeking to establish parentage.
-: That's the only time we use 215-6?
-: Well, that's the only time we use
a substantial relationship test, your Honor.
-: Oh, okay.
And how come we are not looking at this one year,
basically, statute of limitations
on 209C? -: Right, so,
that one portion of the statute relates
to rescission, right,
so the parties can,
for any reason, resend- -: (indistinct), and then
after that. -: Right.
And then, we would argue that
that one year limitation period,
again, is treated, like,
as a function between the parties.
Right?
It's not to all world
as to all notice. -: But why would it?
It doesn't say that in here.
It just says,
"It's subject to challenge within one year only."
In fact, I'd argue that it would be anybody but the people
who have entered into the agreement,
because they did so voluntarily.
-: They did so voluntarily.
And I think within the year,
the parties who entered the agreement,
again, have that fraud duress mistake,
because you might learn something.
But as to the public at large,
part of the challenge is that
nobody knows when VAPs are signed.
So, for example,
a putative biological father may have
an ongoing relationship with the child,
maybe didn't sign a VAP,
but there's a relationship,
and the mother can have somebody else sign the VAP,
and it gets filed with the court,
the birth certificate gets changed,
and no one may ever know,
or may only know five years later.
So I think that that's part of the challenge, your Honor.
-: Understood that.
I get that. -: Yeah.
-: But then I go back to the 215, section 6,
which I know you're saying
usually is only used in this one particular way,
but does that mean it has to be used only
in that one particular way?
-: But again, we also proceeded under 209C,
and that test isn't there- -: No, I understand.
I understand.
I understand you did.
-: So again, we argue that the substantial relationship test
should not be applied in marital or non-marital cases.
We really believe it's an outdated, outmoded test
in that it was meant as a bar,
because the idea was to preserve marriages, and-
-: [Chief Justice Budd] Substantial relationship test?
-: Yes, your Honor.
That is how that case arose.
For example, there are two cases,
the biggest one that I think of is,
we had a woman who had an extramarital affair,
after the child was born,
for the first four and a half months
after the child was born,
the biological father came to the house every week.
Gave money.
And when mother broke off the relationship,
he still wanted to see the child.
He set up life insurance.
And it was within a year,
and the court said,
"No, there's no substantial relationship."
And I find it hard to believe
that when you're talking about an infant,
that that matters.
The best interest of the child matters,
and the best interest of the child,
that prior relationship is a factor.
And, in fact, in the Lehr decision from the Supreme Court,
which we don't necessarily (laughs) agree with
on all points,
but Justice Scalia noted that it was one factor
in the best interest of the child.
It's not the whole test.
So we would argue that
biological father should get in the door,
there should be confirmatory testing,
and then there should be a hearing.
And the hearing should determine,
in fact, the nature and extended parental rights
to each parent, not limiting it.
We are not seeking in any way
to prevent current legal father from parenting this child.
We recognize, this isn't a zero sum game,
this is a child's life.
They'd have a right and an interest
in knowing their biological family, their lineage,
having all of the parents and all the support
that they can have.
Yes, your Honor? -: Well, can't that
all be provided without this official acknowledgement?
I mean, there's no reason the father can't participate,
and, I mean,
the biological father- -: But the court-
-: And has been participating. -: And has been, right!
I mean, all that's there.
-: But the court did not enter,
he has no custodial right that can be enforced,
so that if either of the mother or current legal father
were to say, "You can't see the child,"
the answer is he can't,
because he has no ability to go into court
and argue
that his relationship should
have protection. -: Have any even way in
through equity in the probate court to say,
"Look, for the last three years,
they've brought me into the family, and I am the bio dad-"
-: No, your Honor.
Not under the current law.
-: Okay. -: Even if he had
a significant relationship?
-: If he had a preexisting, significant relationship,
so there are some cases,
in the cases that I've read
that have that preexisting relationship,
tend to be children born in wedlock
but they were separated at the time.
And so there was this window
where biological father lived with mother and child.
It has not been,
I have not seen cases where you can come forward,
you know, for example,
he learns when the child is seven,
"In fact, it is yours, other people have been tested,"
as, in this case.
He's seen the kid,
child, sorry (laughs),
for most of the child's life, in fact believes,
you know, or knows that his son is related.
And yet that's not a relationship worthy of protection,
even on
a one afternoon every two weeks kind of basis
at this point in time.
So I think it's a- -: I think I have my answer,
thank you. -: Thank you, your Honor.
-: Thank you so much. -: Thank you.
-: Okay.
All right.
Attorney LaRochelle.
-: Thank you for your time this morning,
and may it please the court.
I do wanna point out, I'm not the legal father,
even though Attorney Lord pointed to me a number of times
when she was talking about
the legal father. (group laughs)
But I do represent the legal father,
the legal father of a nine-year-old girl.
And in this case, the punitive father,
at least in the briefs,
has claimed that he has a constitutional right
to parent this child on the mere fact
that he shares DNA with her.
Biological father is wrong on that.
The United States Supreme Court has made it clear,
both through the Stanley vs. Illinois decision,
and then even clearer in Lehr vs. Robinson,
that it is not just DNA alone
that gives a parent a constitutional right,
or a liberty interest to parent a child.
It is, "Siring," and this is a quote from the court,
"Siring and raising the child."
And the raising the child is totally not here in this case.
But because that is a constitutional concern,
the probate court was exactly right
in ordering and holding an evidentiary hearing
on the question of
whether there was a substantial parental relationship
with this child,
as a gateway to any of the proceedings before it.
It does two things;
number one,
it satisfies this court's requirement,
set down in C.C. vs. A.B.,
to have such a hearing,
and to determine whether there is
a substantial parent/child relationship
before proceeding on the merits of the case
in an equity case.
The second thing it does is,
it answers the constitutional question
of whether there is a substantial relationship
between the child and the parent that rises
to constitutional- -: But, I get all that.
I'm a little concerned with the original,
the VAP on your client.
Does the statute,
I mean, is this a misuse of the VAP process, or not?
I guess is the question for me.
And both in terms of what the statute says a VAP is,
and what this clerk document said it was.
Could you talk me through those two things?
'Cause- -: I can-
-: That's what makes this more complicated (laughs).
-: I can, your Honor.
And by the way, the VAP is included,
it's in appendix volume two, page seven,
I believe, is where the actual signed VAP is.
And if I could make really four points on the VAP,
I would appreciate it.
The first one is that, in the briefs anyway,
we talked about fraud,
or they talked about fraud. -: Could you start
with the statute?
'Cause it's nice to know the law.
-: [Attorney LaRochelle] Sure!
The statute- -: A VAP-
-: The statute is 209C. -: Yeah, 209C.
-: Section 5 and 11, specifically.
And your Honor is correct.
You mentioned earlier,
there is no mention of the VAP being limited
to a biological parent.
It's absolutely not existent in the statutory law.
It's not existent in this court's case law up until now.
In fact, originally in paternity of Cheryl,
and later on in the Partanen case,
this court found that it's perfectly acceptable
to be a parent and, in the Partanen case,
to sign a valid VAP- -: And were those
sort of pre-Goodridge cases
and dealing with the artificial insemination issue,
or what were those cases?
I'm just trying to understand.
'Cause- -: Well-
-: I take it, we don't want anybody just filing a VAP, right?
There has to be some,
is there a limitation on it,
or can anybody just, you know, volunteer for the duty?
-: Well, there's a limitation on it
in the fact that the person who is going to sign it,
both the mother and the father-to-be have to sign it.
And they are both obligating to parent the child together.
And so, for the person who is stepping up as,
in most cases, the punitive father,
as the to-be legal father,
that person's taking on intense responsibilities
that will carry forward with him for the rest of his life,
certainly through the rest of the child's minority.
-: So if anyone- -: In fact, the statute-
-: I'm sorry, your Honor.
-: If you're willing to do it, then,
and the other person is willing to have you do it as well,
those are the limitations.
It's not biological,
or a product of artificial insemination.
That's not the driving force of a VAP?
-: It's absolutely correct, your Honor.
There's absolutely nothing in the statute that requires it,
there's nothing in the case law of
this court, or the state of Massachusetts, that requires it.
And it- -: Yeah.
-: Justice.
-: So, this father,
biological father,
isn't really in the best position.
But,
I guess my concern is,
and I don't know if you read
the Veteran's Legal Services Amicus letter,
which was really thoughtful,
is,
what if the VAP
is signed by somebody
who doesn't necessarily have that much of a connection?
I mean, the mother here,
a couple times was manipulative.
Let's say that you have a situation where
you have a biological father
and,
he's not doing great in life.
There's always the possibility of redemption.
He's the biological father.
And he's now in a position in his life
where he really wants to
be a father, and take care of his kid,
and he doesn't have a substantial relationship.
He's not going to go anywhere under
chapter 215.
He's not even going to have a chance to
be able to demonstrate that,
you know, redemption, and that real desire to be
the father of his biological child.
-: Well, I think that's right, your Honor,
and as Justice Cypher was pointing out,
I mean, that biological father
still has the ability to help.
He still has the ability to provide financial support
if he wants to.
He has the ability to leave money to the child
in his will if he wants to.
He has the ability to be there for the child
if the child wants to come to him
with problems that she's having.
-: And to the extent that the parents allow that.
That's right.
But what this court has always recognized
in all its jurisprudence,
and it should not change that here,
is that the primary interest is the child's interest.
So how could it possibly be in the child's interest,
eight years, now nine years, after she was born,
to have a court say,
"This man that you've always known to be your father
is no longer your father.
This other man is."
And- -: I get that.
I get you your facts.
-: It is, perhaps-
-: I understand your facts. -: I apologize.
-: They're compelling.
I get it.
I'm just wondering about
a principle here of law
where,
the father on the VAP is not father of the year,
and you have the biological father
who is in a better position than he ever has been before.
Maybe, did a lot of work to get there.
And wants to be able to establish that relationship,
and,
with an obstacle that he doesn't
have a substantial relationship,
he never has a chance.
-: Unfortunately, your Honor, the law as it stands,
and I think it's based on solid grounds
of recognizing the primacy of the children's right first,
would not give that biological father you're talking about,
or that the VA talked about in their brief,
would not give that father an ability
to establish a formal parenting relationship with the child,
unless the father who did step in,
the legal father in that case,
was found to be an unfit parent
and was stripped of his parental rights.
Unfortunately,
because the child's rights have to
be superior to the rights of this biological father,
there's no other way around that.
I just don't have a better answer for you on that,
your Honor. -: It's complicated here,
because the child's interested in who
her biological father is, right?
The child,
your client has told her,
"I'm your father, but I'm not your biological father."
-: Yes. -: The child
is at first confused, and then interested.
And the judge has to,
when the judge does the substantial connection process,
the judge has to take that into account too, right?
Does the judge take that into account?
That, "Look, this child is curious."
I mean a lot of people who don't know their birth parents
and are adopted by someone else,
want to know something about that person.
So how does that
play into this? -: Well,
I think that's right, your Honor.
I think children are curious
about who their biological parents are.
And there's ways that children can find out
who their biological parents are,
which stop well short of making that biological parent
their new father,
as opposed to the person who's been raising them
for all those years.
So that's not part-
-: To be fair to your opponent,
they're saying they want to be in the game,
they don't want to take over the game.
They're not saying that your client is no longer the father.
They're saying, basically, "I wanna be a dad too."
-: Well- -: You know, I mean,
I understand that that's complicated (laughs).
-: It's complicated because, as Justice Cypher was saying,
the biological father,
the alleged biological father,
'cause there's no evidence in front of the court
that he is the biological father yet.
He has the ability to participate in that child's life,
to the extent financially that he wants to,
and to the extent that the parents allow him to be.
But what he's seeking for here,
by an adjudication of parentage,
he's seeking a seat at the table.
He is seeking at least the ability
to ask the probate court, dictate to the parents,
what this child's life should be like,
what the decisions should be made for this child,
that he's not entitled to.
He may have been entitled to,
he would've been entitled to that
had he proved his parentage
within the time allotted by 209C.
-: [Chief Justice Budd] Speaking of that,
what effect does that have on standing?
-: On his standing?
-: [Chief Justice Budd] Yeah, his standing
to bring this under that one year.
-: Well,
under 209C, he has no standing to bring this,
because the one year is past,
and that is strictly a creature of the statute.
And there's no leeway on that.
With respect to his bringing his equity claim,
he does have the ability to bring that anytime,
but he has to pass this court's
C.C. vs. A.B. substantial parent child relationship test
to do that.
-: I thought you were gonna say some more about the VAP.
Did you say you had four things to say?
-: I did have four, and I'm not sure how many
I actually got to. -: You only got to one.
(person laughs) -: But the first one is, like-
-: No, I don't even think
you got to one,
because before you
got started- -: (laughs) Okay.
-: Justice Kafker asked about the statute.
-: It's my fault. -: Well, the first one is-
-: I apologize. -: No, and then Justice Lowy
interrupted you as well.
Go on. (people laugh)
-: I appreciated the interruption.
(Chief Justice laughs)
The first point is that we shouldn't be talking
about fraud or perjury anyway,
because there's absolutely no evidence in this record
that there was an intent to deceive,
nor is there any evidence that alleged biological,
and I pointed to her this time,
she's not the alleged biological father.
There's no evidence that the alleged biological father
actually relied on this VAP.
He never saw it.
But the second point is perhaps a more important one,
at the time this
voluntary acknowledgement was signed in 2016,
as we've already talked about,
209C, the legislature has already not required
a biological connection to sign that form.
And this court, in the Partanen case,
basically said,
"It's not important for you to be a biological parent
to sign this form,
and we're gonna uphold this form,
even if you're not the biological parent."
So when this form was actually signed in November of 2016,
it was the law of Massachusetts,
as expressed by this court,
that it's okay to sign that form
even if you're not the biological parent.
So we- -: But Partanen
is the California case, right?
-: No, Partanen is the case
in front of this court, your Honor.
-: No, but it involved
the woman taking the child to California, or Oregon?
-: It's the- -: It doesn't really interpret-
-: [Attorney LaRochelle] It's the same sex parent case.
Yes, your Honor. -: Doesn't really
interpret this stuff, does it?
It doesn't interpret VAPs or anything else.
I looked at it, 'cause I thought,
"Oh, this is gonna be simple!"
But it's kind of tangential,
isn't it? -: It doesn't specifically
say that, but the court does
uphold a VAP which was demonstrated
to be not signed by biological parents.
-: So there was a VAP in that case?
-: Yes, there was. -: Okay.
Yeah. -: Okay.
And the third point-
-: So in that case,
it's a gay couple,
and it's an artificial insemination.
So, it's a little different,
right? -: We're still talking
about non-biological,
or a biological parent as opposed to a non-biological
who had taken control of the child's life.
The third point I wanted to make was that
if this form did contain a misstatement, which it did,
the legislature who created
the whole mechanism,
set forth exactly what the remedy is
to resolve that misstatement,
it's to challenge the form within one year of signing.
That's it.
And in this case, it was not challenged within one year.
And the one year is really important,
because the legislature made the decision
that after one year of someone else,
the person who signed the VAP,
acting as this person's parent,
establishing a parent-child relationship,
it's not in the child's best interest
to, in any way, challenge that VAP now
and say, "Well maybe this person you've come to rely on,
maybe that person's not really your dad,
we're maybe gonna give you a different dad."
-: But in that- -: And the-
-: That includes
whether the bio dad knows anything about this or not.
Whether the bio dad has been around,
as in this case,
and might have been able to look into things but didn't,
I don't know if he ever could have found out.
But what about the person that Justice Lowy pointed to,
the example of somebody who's been away,
knows nothing about a VAP being signed
and loses his chance
because he doesn't know about his chance?
-: Two things about that.
First of all, that's clearly not this case,
because this- -: I understand.
I understand. -: This alleged father
did know.
The second thing about that is
you mentioned earlier on questioning Attorney Lord,
that it was a statute of limitations.
I don't think it's a statute of limitations.
It's a statute of repose.
-: Okay. -: It's reposed for the child
to be able to rely on the fact
that the person who's been her father
for at least 12 months,
will continue to be her father.
-: I'm not saying that anything should happen to that.
It's just,
what I'm trying to understand is under chapter 215,
that a substantial relationship,
even if you're not trying to displace
the father who's on the VAP.
No one wants to displace the father on the VAP,
in my hypothetical.
Father's doing a great job.
It's just some person who didn't know anything about this
or was not in a position in his life,
he had issues that he's come back from,
hoping maybe to be able to have parenting time,
even if the parents don't want him to.
It's not that that judge should order that.
It's that the judge never can consider that,
because the threshold for substantial relationship
can't be satisfied. -: Well the-
-: Under 215? -: Under 215.
-: The substantial parent-child relationship relates
to an actual adjudication of parentage.
Not a de facto parent,
not an adult who's coming in and asking the court,
"I need to have time with this child
because it's in the child's best interest."
This case was not brought by the punitive father as,
"I want to be the de facto parent.
I want to have parenting time."
That would be a different analysis.
And in that case,
you wouldn't have a substantial
parent-child relationship threshold.
You would just have a best interest of the child threshold,
or, standard that you'd have to meet.
But that's not this case.
That's not the posture of how- -: Wait, what is that
case though? -: This case was brought.
-: What's the statute under which a person
who wanted to do that-
-: I don't even know if there is a statute, your Honor,
but that's how the probate courts have handled it.
-: It doesn't matter if that's not this case,
if there's no other vehicle.
-: But isn't the only,
there's a 209 vehicle and the 215 vehicle, right?
You're either in the one year vehicle
where you can prove that you're the parent,
you're a biological parent,
or you're in the 215, right?
There's not a third road here,
is there? -: Not to establish
legal parentage.
No, there's not.
-: Right.
There's only those two roads. -: And isn't the reason
for that is that time is of the essence for children?
-: It really is!
I mean there is an interest that certainly the child has,
but everyone has in a finality of a paternity judgment.
Because if we wait too long
and the child develops this relationship with a new man
and doesn't know this stranger to be her father,
it becomes more and more damaging to her the longer we wait.
The legislature has said one year on 208C,
and this court has set the substantial relationship test
as being the standard on cases of equity.
And those standards-
(microphone scrapes) Excuse me,
both protect the child, primarily.
And that's really where this jurisprudence should be.
It should be in the interest of the child.
-: Are they mutually exclusive?
'Cause I'm not interested in displacing a father
and it not being in the best interest of the child.
The best interest of the child is what it's all about.
But are they mutually exclusive?
Does that mean a biological father
who would have no way to know
and wouldn't be able to establish
a substantial relationship,
there's no third door, it's 209C, or 215, right?
That father doesn't have a chance to say,
"Well, you know,
I'd like to be able to see the child every two weeks,"
or something. -: That's correct.
I believe that's correct, your Honor.
-: But he could do that through asking the parents.
-: Always through asking the parents.
That's always an avenue.
But not through the courts.
That's correct, your Honor.