Ex parte N.M.D.
R.D.S. and N.M.D. In re: M.C.S.
Juvenile Court, JU-16-159.01
PETITION FOR WRIT OF MANDAMUS
THOMPSON, Presiding Judge.
February 10, 2016, M.C.S. ("the maternal
grandmother") filed in the Madison Juvenile Court
("the juvenile court") a petition that initiated
two dependency actions seeking to have her two minor
grandchildren declared dependent. In her petition, the
maternal grandmother alleged that A.O.A. was the child of
R.D.S. ("the mother") and L.O.A., from whom the
mother was divorced in 2010, and that N.M.D. was the father
of the mother's other child, N.C. D. ("the
child"). The maternal grandmother alleged that none of
the parents could properly care for the children and that,
therefore, the children were dependent. The juvenile court
clerk assigned case number JU-16-158.01 to the dependency
action pertaining to A.O.A. and case number JU-16-159.01 to
the dependency action pertaining to the child. This petition
for a writ of mandamus concerns only case number JU-16-159.01
pertaining to the child.
number JU-16-159.01 ("the dependency action"),
N.M.D. answered and denied that the child was dependent;
N.M.D. also counterclaimed, seeking an adjudication of his
paternity of the child under the Alabama Uniform Parentage
Act ("AUPA"), § 26-17-101 et seq., Ala. Code
1975, and seeking an award of custody of the child. On June
30, 2017, N.M.D. filed a "motion to intervene, amend,
counterclaim, [and] join a party, " seeking to add
L.O.A. to the dependency action. In that motion, N.M.D.
alleged that, during a recent court hearing, it had come to
the juvenile court's attention that the child had been
born during the marriage of the mother and L.O.A. N.M.D.
requested that the juvenile court conduct a hearing to
determine whether L.O.A. persisted in the presumption that he
is the father of the child.
28, 2017, the juvenile court entered an order denying
N.M.D.'s June 30, 2017, motion. N.M.D. timely filed a
petition for a writ of mandamus.
materials submitted to this court indicate that the mother
and L.O.A. were divorced in 2010 and that the divorce
judgment addressed only the custody of A.O.A. That divorce
judgment contained no reference to the child or to the
possibility that the mother might be pregnant at the time of
the divorce. The juvenile court's July 28, 2017,
order states that "the parties came before the
court" at a hearing on July 27, 2017, but it contains no
indication that any evidence was presented at that hearing,
and no party argues before this court that the juvenile court
received evidence at the hearing. The materials submitted by
the parties also include an August 1, 2017, sworn statement,
submitted to the juvenile court by the maternal grandmother
and executed by L.O.A., in which L.O.A. asserts that he is
the legal father of the child and that he agrees that custody
of the child should be transferred to the maternal
grandmother. That statement was executed and filed in the
juvenile court after the juvenile court entered its
July 28, 2017, ruling.
filed a petition for a writ of mandamus in this court,
arguing that he should have been afforded an evidentiary
hearing on his June 30, 2017, motion. The parties do not
dispute that, because the child was born during the marriage
of the mother to L.O.A., L.O.A. is the child's presumed
father under the AUPA. § 26-17-204(a), Ala. Code 1975
(providing that "A man is presumed to be the father of a
child if: (1) he and the mother of the child are married to
each other and the child is born during the marriage; (2) he
and the mother of the child were married to each other and
the child is born within 300 days after the marriage is
terminated by death, annulment, declaration of invalidity, or
divorce...."). The presumption that L.O.A. is the
child's father could be rebutted only pursuant to a
proceeding under Article 6 of the AUPA (see §
26-17-204(b)), which provides, among other things, that an
"interested party" may seek a paternity
adjudication, subject to certain limitations. §
26-17-602(7), Ala. Code 1975. Among the limitations to the
ability of an interested party such as N.M.D. to bring an
action asserting paternity of a child born during the
mother's marriage to another man is the provision that if
the presumed father persists in the presumption in favor of
his paternity, no action to disprove the presumed
father's paternity may be maintained. §
26-17-607(a), Ala. Code 1975. This court has explained:
"Section 26-17-602, Ala. Code 1975, a part of the
Alabama Uniform Parentage Act ('the AUPA'), §
26-17-101 et seq., Ala. Code 1975, provides that any
interested party may bring an action to adjudicate parentage.
However, § 26-17-602 is limited in application by
§§ 26-17-607 and 26-17-609, Ala. Code 1975, which
restrict who has standing to seek an adjudication of
paternity. When there is a presumed father, the AUPA permits
the presumed father to bring an action to disprove his
paternity at any time. § 26-17-607(a). However, if the
presumed father wishes to persist in his presumption of
paternity, no one may bring an action to disprove his
paternity or to establish paternity in another man.
Id. ('If the presumed father persists in his
status as the legal father of a child, neither the mother nor
any other individual may maintain an action to disprove
paternity.'). The Alabama Comment to § 26-17-607
specifically states that '[s]ubsection (a) follows Ex
parte Presse, 554 So.2d 406 (Ala. 1989)[, ] and its
progeny that favor maintaining the integrity of the family
unit and the father-child relationship that was developed
Ex parte S.E., 125 So.3d 720, 721 (Ala. Civ. App.
N.M.D. could maintain his claim seeking the determination of
his paternity of the child only if L.O.A. did not persist in
the presumption in favor of his paternity. This court has
held that a man claiming to be the father of a child who has
a presumed father is entitled to an evidentiary hearing to
determine whether the presumed father is persisting in the
presumption that he is the father of the child. J.O.J. v.
R.M., 205 So.3d 726, 728 (Ala. Civ. App. 2015) (holding
that the man claiming paternity "was entitled to a
hearing on the issue of whether [the presumed father]
persisted in his presumption of paternity"); D.B. v.
A.K., 93 So.3d 946, 948-49 (Ala. Civ. App. 2012) (same).
D.B. v. A.K., supra, D.B. sought to establish his
paternity of a child born during the mother's marriage to
her husband. In that case, the mother and her husband
divorced, and the divorce judgment did not mention the child.
D.B. alleged that he was listed as the father on the birth
certificate of the child in that case and that he had taken
the child into his home and had held the child out as his
own. The husband executed an affidavit stating the he was
maintaining the presumption in favor of his paternity.
Thereafter, the juvenile court in that case entered an order
dismissing D.B.'s paternity action on the basis that D.B.
lacked standing to bring a paternity action when the child
had a presumed father. 93 So.3d at 948. This court reversed,
holding that D.B. had presented a factual controversy
regarding whether the mother's husband was actually
persisting in his presumption of paternity. We held that the
juvenile court had erred in failing to conduct an evidentiary
hearing on the issue of whether the mother's husband was
persisting in the presumption in favor of his paternity, and
we ordered the juvenile court to conduct such a hearing on
remand. D.B. v. A.K., 93 So.3d at 949.
in this case, N.M.D. alleged that DNA testing has established
his paternity, that he is listed as the father of the child
on the child's birth certificate, and that he has
"taken the child into his home and claimed the child as
his own." The materials before this court contain no
allegation by any of the parties that L.O.A. sought to
persist in the presumption in favor of his paternity. No
evidence was presented to the juvenile court before it ruled
that might tend to indicate that L.O.A. was persisting in the
presumption in favor of his paternity.
of mandamus is a drastic and extraordinary remedy and should
be issued only where a party demonstrates that the trial
court has abused its discretion and that the party has a
clear right to relief. Ex parte Moore, 642 So.2d
457, 462 (Ala. 1994). We conclude that N.M.D. has
demonstrated that he is entitled to an evidentiary hearing
regarding whether L.O.A. is persisting in the presumption in
favor of his paternity of the child. D.B. v. A.K.,
supra; L.R.B. v. Talladega Cty. Dep't of Human
Res., [Ms. 2150042, July 8, 2016] ___ So.3d ___ (Ala.
Civ. App. 2016) ("[A] man seeking to establish his
paternity of a child with a presumed father must be given the
opportunity to present evidence regarding whether the
presumed father has given up his presumption by his
conduct."); and A.S. v. M.W., 100 So.3d 1112,
1114 (Ala. Civ. App. 2012) ("[A] man claiming the
paternity of children born during the marriage of the mother
to another man is entitled to an evidentiary hearing to prove
that the mother's husband does not persist in his