383 A.2d 634 | Conn. Super. Ct. | 1977
In May of 1974 the plaintiff, Edward K. Perkins, asked the defendant, Robin Savard Perkins, to marry him. She had told him that she was pregnant by another man who wanted nothing further to do with her. They went to a physician and confirmed the pregnancy. Perkins assured the defendant that it was all right about the child. He *188 told her, "We will have it and it will have a father and a name." He promised that he would not deny that the child was his. She accepted his proposal and they were married on June 28, 1974. On September 17, 1974, the child was born. He was named Edward K. Perkins, Jr., and Edward K. Perkins assented to the entry of his name on the birth certificate as the father. Thereafter, Perkins supported Edward, Jr., changed his diapers, and took him around to the in-laws as his own son. The child called Perkins "Daddy." Perkins was for all intents and purposes the father of the child. After approximately two years the marriage broke down and Perkins sued for a dissolution. His complaint described the child as "issue of the marriage." In October, 1976, the court rendered a temporary order awarding custody of the child to the defendant, giving Perkins visitation rights and requiring him to pay child support. On May 24, 1977, Perkins filed an amended complaint describing Edward, Jr., for the first time as "not issue of the marriage." The plaintiff now wishes to be relieved of his obligation to support the child. A finding may enter that the marriage has broken down irretrievably and a decree may enter dissolving the marriage.
The dispute between the parties involves the following question: Should a husband who knew when he married his wife that she was pregnant by another man and who promised to give the child his name and be its father be allowed to deny paternity and avoid supporting the child in a later action for dissolution of the marriage? No Connecticut decision has addressed this issue. Decisions in other states present three alternatives.
The first is to create a conclusive legal presumption of paternity in the husband. State v. Shoemaker,
This alternative has the virtues of simplicity and certainty. It promotes a policy favoring the legitimacy of children. Section
A second alternative, followed in several states, is to hold a husband obligated for the support of his wife's child only during the marriage. D. v. D.,
The third alternative is to use principles of contract and estoppel to bind husbands for child support in particular cases. A case recognizing this approach was Clevenger v. Clevenger,
This third alternative should be chosen. It promotes the welfare of the child and supports existing state policies. Morrow v. Morrow,
Use of the theory of estoppel, when the facts of a particular case warrant it, is consistent with prior Connecticut law and fills a gap left by the statutes. That use promotes the state's long-standing policy favoring the legitimacy and best interests of children. The plaintiff husband should be estopped to deny paternity after bringing his action for a dissolution of the marriage. The child, born during the defendant's marriage to a father who promised not to deny his fatherhood, is entitled to remain legitimate and to receive appropriate support from the plaintiff.
It is therefore found that the parties have one minor child, issue of their marriage, to wit: Edward K. Perkins, Jr., born September 17, 1974, and custody of that child is awarded to the defendant with reasonable rights of visitation in the plaintiff.