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Posts Tagged ‘parentage’

The Washington State Court of Appeals, Division II, held recently that a CR2A agreement was binding on both parties, when, at different times, each party had moved to enforce it.

Court Rule 2A (“CR2A”) provides that the court will not enforce an agreement between the parties unless it is made in open court on the record, or unless it is in writing and signed by the attorneys.  CR2A agreements are commonly used to memorialize agreements made during mediation or other Alternative Dispute Resolution.

The case, Marriage of Teresa Grimsley-LaVergne and Mark A. LaVergne, No. 37731-4-II arose from a drawn-out dissolution process that began in 2001 and ended in 2009.  During that process, in 2004, the parties engaged in an eleven-hour marathon mediation with a professional mediator.  Pursuant to that mediation, the parties signed a CR2A agreement.    

In this case, the CR2A agreement was hard to read.  It was scribbled and interlineated.  Sections were scratched out and then sometimes reinserted.  Nonetheless, it was signed and it contained language indicating that the parties agreed to it and thought it was fair and equitable.

The night after the mediation, the parties had sex and conceived twins.  For the next three years, they lived together and appeared to have reconciled.  Nonetheless, the parties also executed at least some of the provisions of the CR2A agreement and, at different times, attempted to enforce it.

In 2009, the Husband attempted to set aside the CR2A agreement because, he claimed, the parties had reconciled.  The trial court, after a two-day trial, denied the motion.  The Husband appealed.  The Court of Appeals affirmed the trial court, holding that, by moving to enforce the CR2A agreement, the parties had waived their right to appeal its enforceability.

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A new decision from Division II, Parentage of Sec, docket no. 38883-9, held that a court must determine that DNA testing is in the child’s best interest before ordering the testing.
The case pitted a presumptive father against a putative biological father. Washington law presumes that a man is a child’s father if the parents were married when the child was born. It also permits a proceeding to disprove a presumptive relationship if: a) the presumed father and the mother neither cohabitated nor engaged in sexual intercourse with each other during the probable time of conception, and b) the presumed father never openly treated the child as his own.
This provision also authorizes a court to require genetic testing, if such testing would be in the child’s best interest.
Here, the putative biological father filed a motion to disestablish the presumptive relationship. In the course of that proceeding, the court ordered the parties to submit to genetic testing. The child and the presumptive father did not comply with the order.
On appeal, the court held the order invalid, because it was issued without the requisite hearing to determine whether such testing was in the child’s best interest.

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A decision from early September, In Re: Parentage of Q.A.L., docket No. 35664-2 (Div. 2, Sept. 3, 2008), held that a child has a constitutional right to participate in a proceeding regarding his own paternity. To protect this right, the child is entitled to a court-appointed guardian ad litem.

The decision modifies black-letter statutory law. Under the paternity statute, an unacknowledged father has only two years to file a paternity action where someone else has been either acknowledged or adjudicated the father.

In this case, the unacknowledged father filed the paternity action two months after he got the results of a paternity test showing that he was the father but missed the statutory two-year deadline. The court waived the deadline because the child had a constitutional interest in the outcome of the paternity action, which trumped the statutory deadline.

One of these interests was the child’s Native American heritage. The unacknowledged father was Native American. Native American rights, including rights of inheritance and the right to enroll in a federally recognized Indian Tribe go to the child regardless of the legal relationship of the Native American parent to the child.

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