D.I.
v.
I.G. and R.D.
Appeal
from Walker Circuit Court (JU-14-89.02)
THOMAS, Judge.
In
December 2010, I.G. ("the mother") gave birth to
R.W.D. ("the child"). At that time, the mother was
living with R.D. ("the presumed father"), who
attended the birth of the child, executed an affidavit or
paternity, and is named as the father on the child's
birth certificate. The mother and the child continue to live
with the presumed father, who has held out the child as his
own and has performed the duties of a father since the
child's birth such that he qualifies as a presumed father
under Ala. Code 1975, § 26-17-204(a)(5), a part of the
Alabama Uniform Parentage Act ("the AUPA"),
codified at Ala. Code 1975, § 26-17-101 et seq.
In
early 2014, D.I. ("the alleged biological father")
was informed by a friend that he was the biological father of
the child. He contacted the mother and requested that a DNA
test be performed; the mother consented and produced the
child for a DNA test. Once the results of that test were
obtained, the alleged biological father and his parents, M.I.
and J.I. ("the alleged paternal grandparents"),
requested of the mother that they be allowed to visit the
child and she acquiesced. They visited with the child at the
alleged paternal grandparents' home on three occasions in
March 2014. However, when the presumed father learned that
the alleged biological father was participating in the
visits, he ended them. The alleged biological father then
filed in the Walker Juvenile Court ("the juvenile
court") an action seeking to establish his paternity of
the child.
After
receiving an adverse judgment in the juvenile court, the
alleged biological father appealed that judgment to the
Walker Circuit Court ("the circuit court"); the
alleged biological father also asserted an as-applied
constitutional challenge to § 26-17-204(a)(5). The
presumed father moved to dismiss the alleged biological
father's action, arguing that, pursuant to Ala. Code
1975, § 26-17-607(a), the alleged biological
father's paternity action should be barred. The circuit
court, after a hearing, entered a judgment granting that
motion on June 22, 2017. The alleged biological father timely
appealed the order dismissing his action, arguing that (1)
the presumed father failed to persist in his status, (2) the
alleged biological father's petition was not a petition
to disprove the presumed father's paternity and was
therefore not barred by § 26-17-607(a), (3) the circuit
court erred by interpreting § 26-17-607(a) in such a way
as to render § 26-17-204(b) and § 26-17-607(b)
"null and void, " (4) the circuit court's
interpretation and application of § 26-17-607(a) to
preclude the alleged biological father from seeking to
establish his paternity violates what the alleged biological
father describes as his "fundamental constitutional
rights to direct and participate in the upbringing of"
the child, and (5) the present case is distinguishable from
various other cases interpreting and applying the AUPA. The
mother and presumed father and the attorney general have each
filed briefs in support of the circuit court's judgment.
In
order to effectively discuss the alleged biological
father's arguments, we must set out the relevant
statutes. Section 26-17-204 establishes the situations under
which a man is presumed by law to be a child's father.
The statute reads, in pertinent part, as follows:
"(a) A man is presumed to be the father of a child if:
"....
"(5) while the child is under the age of majority, he
receives the child into his home and openly holds out the
child as his natural child or otherwise openly holds out the
child as his natural child and establishes a significant
parental relationship with the child by providing emotional
and financial support for the child;
"....
"(b) A presumption of paternity established under this
section may be rebutted only by an adjudication under Article
6 [of the AUPA]. In the event two or more conflicting
presumptions arise, that which is founded upon the weightier
considerations of public policy and logic, as evidenced by
the facts, shall control. The presumption of paternity is
rebutted by a court decree establishing paternity of the
child by another man."
§ 26-17-204.
Actions
to establish parentage are governed by Ala. Code 1975, §
26-17-601 to § 26-17-613. According to by Ala. Code
1975, § 26-17-602(3), an action "to adjudicate
parentage may be maintained by ... a man whose paternity of
the child is to be adjudicated." However, the right to
maintain a paternity action is specifically made subject to
the provisions of § 26-17-607, which states:
"(a) Except as otherwise provided in subsection (b), a
presumed father may bring an action to disprove paternity at
any time. 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.
"(b) A presumption of paternity under this section may
be rebutted in an appropriate action only by clear and
convincing evidence. In the event two or more conflicting
presumptions arise, that which is founded upon the weightier
considerations of public policy and logic, as evidenced by
the facts, shall control. The presumption of paternity is
rebutted by a court decree establishing paternity of the
child by another man."
The
Alabama Comment to § 26-17-607 explains 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 therein. Once
the presumed father ceases to persist in his parentage, then
an action can be brought. If it is determined that the
presumed father is not the biological father and
non-parentage is found, a proceeding to adjudicate parentage
may be brought under this article."
The
alleged biological father first argues that the presumed
father failed to persist in his presumption of paternity
because he allowed the alleged biological father and the
alleged paternal grandparents to visit with the child.
According to the alleged biological father, "one cannot
be said to 'persist' in one's status as father
when one actively permits the visitation of the child with
the child's actual paternal family." In his reply
brief, the alleged biological father describes his argument
as being that the presumed father has failed to persist in
his claim that the child is his "natural child, "
indicating that he is arguing that the recognition of the
child as having a biological father and associated paternal
relatives somehow equates with the ...