125 So. 3d 146
Ala. Civ. App.2013Background
- J.D.G. (husband) sought divorce from D.A.G. (wife) and requested DNA paternity testing; child born in 2008.
- DNA testing showed husband not the biological father, but court found he remained the legal father under § 26-17-607.
- Wife moved to reconsider the pendente lite order; court denied the motion, noting testing could still evidence wife’s adultery.
- D.F.H. (biological father) sought to intervene to challenge paternity; husband purportedly persisted as legal father.
- Trial court denied intervention; guardian ad litem’s report led to temporary suspension of husband’s visitation pending investigations by DHR.
- D.F.H. appealed; issue centered on standing to intervene while husband persists as presumed/legal father.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to intervene | D.F.H. claims he may intervene as biological father seeking to disprove paternity. | Husband persists as legal father; under § 26-17-607(a), no one may disprove paternity. | D.F.H. failed to show lack of persistence; intervention denied. |
| Adequacy of appealable order | Challenge to November 20, 2012 injunction on nonparty rights. | Interlocutory order appealable if injunctive; timely appeal required. | November 20 order appealable only to extent as injunction; part dismissed for lack of timely appeal. |
| Effect of paternity testing on presumption | Testing acknowledged non-biological paternity but should not defeat presumption if husband persists as father. | Acknowledgment of non-paternity should not defeat presumption while husband persists. | Testing did not defeat presumption; husband persisted as legal father; no standing defeat. |
Key Cases Cited
- Ex parte Presse, 554 So.2d 406 (Ala.1989) (presumed father persists, no standing to challenge)
- Baker v. Kennedy, 51 So.3d 339 (Ala.Civ.App.2010) (presumed father persists; intervention denied)
- Cravens v. Cravens, 936 So.2d 538 (Ala.Civ.App.2005) (presumed father persists; paternity test does not negate status)
- Ex parte C.A.P., 683 So.2d 1010 (Ala.1996) (child has presumed father; standing limits when presumed father persists)
- R.D.B. v. A.C., 27 So.3d 1283 (Ala.Civ.App.2009) (biological father may seek intervention; depends on persistence of presumed father)