Equitable Parenthood: Not an Ageless Doctrine
In Vanderark v Vanderark, the Court of Appeals concluded the the trial court erroneously held that the plaintiff was the equitable parent of a minor child born to plaintiff's wife during the marriage. Plaintiff and Defendant married in 2002, but defendant began an affair in 2007. During the course of the affair, defendant conceived a child with her lover and the record showed that she never told plaintiff (her husband) that he was the child's father or that there was any uncertainty regarding the child's paternity.
Defendant moved out of the marital home three months prior to giving birth. Although she never informed her husband of the child's birth, she brought the child to see him three days later and allowed him to spend time with the child. She continued to bring the child to the marital home for visits with her husband from April to August 2008. Even though she knew the child was not her husband's she allowed him to care for the child on three separate occasions without supervision. She abruptly stopped contact between child and her husband. He responded by filing for divorce when the child was 10 months old.
After an evidentiary hearing, the trial court found that the facts of the case satisfied the test for establishing equitable parenthood under Atkinson. The trial court determined that prong (1) of Atkinson, requiring the husband and child to mutually acknowledge a relationship as father and child, or the mother of the child has cooperated in the development of such a relationship over a period of time prior to the filing of the complaint for divorce, despite the fact that the child was too young to acknowledge the parent child relationship, where the defendant allowed plaintiff to have weekly contact with the child prior to divorce.
The COA found that the weekly contact between the father and infant was not sufficient to establish the first prong of Atkinson given facts showing that defendant never really held plaintiff out to be the father, she only provided him with information about the pregnancy via text message and e-mail, and did not call him when she was in the hospital. Further, the COA was persuaded that defendant was not cooperating in facilitating a parent child relationship between plaintiff and the child because she did not allow him to participate in the child's medical appointments and made excuses to prevent him from seeing the child. Further, the COA noted that plaintiff did not provide financial support to the child and waited nearly two months to take legal action after defendant cut off his contact with the child. Consequently, the COA reversed the case, holding that plaintiff was not the child's equitable parent.
Despite being a 3 page unpublished opinion, this case raises some interesting considerations surrounding how to treat the equitable parent doctrine with regard to an infant or toddler. Essentially, an infant or toddler will almost always be considered to young to "mutually acknowledge a parent child relationship." Thus, the only way to satisfy (1) of Atkinson is if the mother cooperates to facilitate a parent child relationship between her "love child," and the husband she is or was cheating on. This cooperation by the cheating mother is necessary to establish (1) of Atkinson even where the husband wants to participate in the child's life.
Since it is unrealistic to expect a cheating spouse to be "cooperative" it could perhaps be said that a husband seeking equitable parenthood of an infant or toddler could never satisfy (1) of Atkinson if cooperation in facilitating a parent child relationship requires the cheating spouse to go out of her way to make the husband part of the child's life. It seems that there would be little reason for a mother to allow even minimal contact and participation between a child she knows is not her husband's child and the husband, unless she was trying to facilitate a relationship between the two.
Consequently, where an infant or toddler is involved, the "cooperative" element of Atkinson should not require daily contact, or a certain type of communication (i.e., telephone versus e-mail), but should instead look to the reasons behind the level of participation whether minimal or extensive. In such a circumstance the trial court is in the best position to assess the mother's credibility and to determine whether the facts establish cooperation sufficient to establish (1) of Atkinson. Unless there is a complete absence of facts illustrating cooperation, the trial court's determination of whether (1) of Atkinson is established with regard to an infant or toddler after an evidentiary hearing should not be disturbed.
The question remains: how likely is it that a husband can actually establish (1) of Atkinson where the child is an infant or toddler? Seemingly, not very likely. Although there is no written age limitation for application of the equitable parent doctrine, common sense dictates otherwise.
