PATERNITY OF CHERYL 746 N.E.2d 488 (2001) CASE BRIEF

PATERNITY OF CHERYL

746 N.E.2d 488 (2001)

NATURE OF THE CASE: Father (F) filed a motion to vacate an earlier paternity judgment. The court ordered genetic testing and concluded that F could seek relief under Mass. R. Dom. Rel. P. 60(b)(5) if the testing disproved paternity. Mother (M) appealed. The Supreme Judicial Court granted mother's application for direct appellate review.

FACTS: M gave birth to Cheryl on August 29, 1993. An action was filed against F on behalf of M and the Department of Public Welfare seeking to establish F's paternity. The department moved for a temporary order of support and for an order that F, M, and Cheryl submit to genetic marker testing and blood grouping. On December 16, 1993, M and F executed an acknowledgment of parentage in which F acknowledged that he was the father of Cheryl, that he understood his acknowledgment would have the effect of a judgment against him, and that the acknowledgment would obligate him to support Cheryl. F agreed to pay child support in the amount of $56.50 each week for Cheryl's benefit. The Probate and Family Court entered a judgment of paternity. The father, who was not represented by counsel at the time, did not submit to genetic marker testing prior to the entry of the paternity judgment. Nothing in the record explains why. F behaved as though he were Cheryl's father. He and his family visited and bonded with Cheryl. In 1995 and again in 1996, F, acting pro se, sought successfully to expand and enforce his visitation rights with his daughter. F has fostered 'a substantial relationship' with Cheryl. In April, 1999, a Probate Court judge ordered the father to pay $90 per week, an increase of $33.50 each week. F then filed a motion requesting an order for genetic marker testing, and an amendment to the 1993 paternity judgment should the test results warrant it. F said that, in 1995, two friends of M informed him on separate occasions that he was not the father of the child, and that subsequently M had said 'unequivocally,' and in circumstances 'indicating sincerity,' that he was not Cheryl's father. The motion stated that Cheryl does not resemble the father 'in features or skin color,' because she is 'very light skinned,' while he, his parents, Cheryl's mother, and her parents are not light skinned. The request was denied. F took Cheryl for genetic testing, without the knowledge of M. The test report, contained in the record, concluded that he was not the biological father of Cheryl. F moved for a second time to amend or to vacate the paternity judgment. He also requested reimbursement for all of the child support that he had paid since the 1993 judgment of paternity. The department and M opposed the motion. Another test was ordered and the judge said that if the tests established that F was not the biological parent of Cheryl, he would be entitled to relief from the prospective application of the 1993 paternity judgment, pursuant to Mass. R. Dom. Rel. P. 60 (b) (5). M appealed.

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