The child in this case was born before the parties were married. Still, when the Mother eventually filed for divorce, her petition alleged that the child was born during the marriage. In his response, the Father* admitted that allegation and sought specific legal and physical custody (now called legal decision-making and parenting time) orders.
In its Decree of Dissolution, the orders finalizing the parties’ divorce, the judge entered orders for legal custody, parenting time, and child support. The Decree accepted the parties’ allegations that the child was born during the marriage, awarded sole custody to Mother, ordered that Father’s* parenting time be supervised, and ordered Father* to pay child support. Neither party filed an appeal.
Approximately two years later, Mother sought to enforce child support. During that proceeding, Father* asked the family court to stop child support and order genetic testing. He claimed that he had discovered new information that caused him to doubt his biological relationship with the child.
The judge denied his requests and explained that because “[t]hese parties were married at the time of the child’s birth; paternity is therefore presumed” and that neither party contested paternity during the divorce. Obviously, this wasn’t entirely true since the child was born before the parties were married. But the family court relied upon the parties’ statements in their initial pleadings.
Did the presumption of paternity apply?
Under A.R.S. § 25-814, paternity is presumed if: (1) the parties were married at any time in the ten months immediately preceding the birth or the child is born within ten months after the marriage is terminated by death, annulment, declaration of invalidity or dissolution of marriage or after the court enters a a decree of legal separation; (2) genetic testing affirms at least a ninety-five percent probability of paternity; (3) a birth certificate is signed by the mother and father of a child born out of wedlock; or (4) a notarized or witness statement is signed by both parents acknowledging paternity or separate substantially similar notarized or witnessed statements are signed by both parents acknowledging paternity.”
That is a lot to unpack and the case law over the years applying this statute has actually made it even more complex.
As applicable to this case, Father* argued that the presumption did not apply because the parties weren’t actually married when the child was born. Mother conceded this fact during the appeal but argued that the doctrine of clam preclusion barred Father* from disestablishing paternity.
Doctrine of claim preclusion
The concept of claim preclusion (sometimes called “res judicata”) essentially states that people cannot re-litigate the same cause of action previously litigated. It is related to but distinct from the issue of issue preclusion (sometimes called “collateral estoppel”). But the general idea for claim preclusion is that a final judgment on the merits of a particular cause of action prevent that same cause of action from being re-litigated in the future.
Father* argued that claim preclusion did not apply for three reasons: (1) the family court lacked subject matter jurisdiction; (2) proceedings for dissolution of marriage and establishment of paternity are separate and distinct causes of action; and (3) the issue of paternity was not raised in the dissolution proceedings.
While we always encourage readers to read the full opinion (it is imperative to fully understand the case law and to confirm its currentness before citing to it or relying on it in any way), we are not going to address the subject matter jurisdiction argument. The Court of Appeals confirmed the family court’s subject matter jurisdiction.
Same evidence test
Father’s* second and third arguments relate to how claim preclusion is (or isn’t) applied, so it’s worth discussing these in greater detail. Addressing Father’s second argument—that proceedings for dissolution are separate and distinct from establishment of paternity—the Court of Appeals applied what is called the “same evidence” test to determine whether a second cause of action is the same as the first.
Essentially, this test considers whether a litigant would use the same evidence to prove the different causes of action or claims. Remember that both parties alleged that the child was born during the marriage and sought orders for legal decision-making and parenting time. Legal paternity is a prerequisite for legal decision-making and parenting time orders. So the Court of Appeals concluded that under the same evidence test, these proceedings were not separate and distinct.
For Father’s* third argument—that the issue of paternity was not raised during the divorce—the Court of Appeals determined this misapplied the doctrine of claim preclusion. Claim preclusion bars not only the claims that were actually litigated in the previous proceeding but also any claims that could have been litigated during that proceeding.
The Court of Appeals concluded that Father* could have contested paternity and sought genetic testing during the divorce proceeding. It awarded Mother her reasonable attorney’s fees for the appeal.
Conclusion
The most important takeaway here is that legal paternity does not depend on biological relationship. This probably sounds counterintuitive, but that is why we try to use the qualifier “legal” and not just paternity. Legal paternity is established by acknowledgment of paternity or court order. It can bind parents even when they later discover that they are not the biological parent.
As a secondary takeaway, it should be noted that claim preclusion is not strictly applied in family courts, particularly in child support cases. Unfortunately, there are very few universal rules in family law. Every case is unique and that is why it is always a good idea to take advantage of a free consultation with an experienced family law attorney.