*1
Finally,
the court did not err
genitals directly through or or cloth
ing, other than as would constitute a sexu act,
al purpose arousing for the grati or
fying purpose sexual desire or for the
causing bodily injury or physical offensive 251(1)(D)
contact.”
(Supp.2000). “Sexual act” is defined “(3)
part Any involving act follows: physical geni
direct contact between the or anus of one and an instrument
tals by another manipulated person
device purpose
when that act is done for the
arousing gratifying sexual desire or purpose bodily injury or causing physical contact.”
offensive 251(1)(C)(3) (Supp.2000). Con
trary argument, to defendant’s the use of manipulated by instrument or device genitals through
the defendant to touch meaning “any fits
clothing within
touching” for sexual purposes of contact
and is not otherwise excluded as a sexual
act because of the absence of direct con Further, the genitals.
tact with the details case, present touching, do
permit touching the conclusion that arousing purpose
was for other than See
defendant’s sexual desire. State (Me.1989).
Boone, entry is:
Judgments affirmed. *2 Ashby, Hardings
Jefferson T. Law Of- fices, Isle, plaintiff. Presque II,
Harlod L. Stewart Stewart Law Of- fice, Isle, Presque for defendant. C.J., WATHEN,
Panel: RUDMAN, CLIFFORD, DANA, SAUFLEY, ALEXANDER, and CALKINS, JJ.
CALKINS, J. appeals John C. Henderson from summary judgment (Aroostook J.) Pierson, County, Stitham, declaring favor David B. father of the minor child K.M.H. and declaring Stitham is the child’s Henderson further from the appeals order denying his motion to dismiss in which he requested a dismissal of Stitham’s com- plaint judicata. of res basis Henderson also appeals order dismiss- ing his counterclaim in which he sought to equitable parental rights. establish his affirm We orders of the Superior Court.
I. BACKGROUND [¶ 2] Henderson and Norma1 mar- were ried in gave 1986. Norma birth to K.M.H. in 1993. present Henderson was at the birth and is the birth named on certificate as the fathеr of K.M.H. He believed that he was the he estab- lished and maintained father-daughter parents with her. His and the child had grandparent-grandchild rela- tionship. Henderson and Norma divorced they agreed the terms of the divorce in a document written that was incorporated judgment. into the divorce judgment, The divorce entered in the Dis- (Houlton, J.), Griffiths, trict Court award- parental shared ed child to upon Norma took the name married Stitham she took name of Stit- Later, marriagе to ham. Henderson. when she counterclaim, Norma; but it granted primary dismissed the counter- Norma; physical prejudice being ripe of the child to claim as not residence without adjudication. awarded Henderson contact with The judgment declares times; all or- proper reasonable is not the child’s that Henderson *3 dered Henderson to maintain health insur- biological and the father that Stitham is child; ance for and Henderson the ordered father. support pay
to
child
to Norma.
pay
continued to
Norma
has
II. RES JUDICATA
support.
child
that Stit
[¶ Henderson contends
divorce,
A
months after the
few
pater
ham’s
for a declaration of
complaint
married,
they,
and
Norma and Stitham
judicata
by
res
because the
nity
barred
along with
to DNA
the
submitted
judgment between Henderson
1996 divorce
testing
determine if
is the
to
Stitham
and Norma determined that Henderson is
biological
child’s
The test results
the child. We have said that
the
of
probability
patеrnity
show Stitham’s
to
“(1)
relitigation if:
judicata bars
the
res
Thereafter,
post-
filed a
be 99.96%.
Norma
privies
their
are
parties
same
involved
in
in which
divorce motion District Court
actions;
judgment
in
final
both
valid
sought
that
she
to obtain
declaration
action;
prior
in the
and
was entered
biological
Henderson was not
child’s
in
presented
decision
the matters
objected, and the Dis-
parent. Henderson
were,
been,
have
might
second action
on
trict Court denied Norma’s motion
Dep’t
in
first action.”
Hu
litigated
ground
judicata.
of res
Comeau,
v.
Boulanger
man Servs. ex rel.
(Me.1995).
663 A.2d
the instant
4] In
Stitham filed
[¶
against
Superior
action
in
Court
not
to
[¶ 7] Stitham
complaint
The
Henderson.
states
Henderson,
divorce between Norma and
brought pursuant
action is
to the Uniform
therefore,
from liti-
and
he is not barred
§§
Paternity,
Act on
1551-
claim
he was in
gating his
unless
paternity
(1998
requests
Supp.2000),
&
with
For the doctrine of
privity
Norma.
biological
Stitham be declared
judicata
privi-
on
basis of
аpply
res
to
father.2
to dismiss the
Henderson moved
ty,
must demonstrate
judicata,
complaint
ground
of res
sub-
rights and
of Stitham were
interests
motion.
and the
denied the
court
stantially
represented
protected
submit
to
court
Henderson to
ordered
proceeding.
in
See id.
Norma
the divorce
exclude
testing,
DNA
test results
Norma
privity
For there to be
between
father of
biological
Henderson as the
divorce,
at the time of the
and Stitham
K.M.H.
to
mutual
had
have a
two
сommonality
of interest.
the DNA
results were
established
[¶ 5] After
test
obtained,
litigation
had
a motion to Their interests
divorce
brought
they represented one sin-
equi-
his
to be such that
allow counterclaim establish
neither
objected
gle right.
Id. We have held that
parental rights.
table
Stitham
nor
Human Ser-
Department
ground
the motion on the
counter-
is ha
with
child’s mother
privity
moved for
vices
untimely.
claim was
Stitham
to determine
when she settles
action
summary judgment
complaint
on his
'
Hu-
objected.
Dep’t
The court
of the child.
which Henderson
Webster,
792, 794
v.
judgment mo- man Servs.
granted
summary
Stitham’s
(Me.1979).
see
Human
Dep’t
to file the
But
tion
Henderson’s motion
these ac-
jurisdiction over
had concur-
Court exclusive
(Supp.2000),
§ 1556
jurisdiction
Court over
tions. 19-A M.R.S.A.
rent
District
(ef-
P.L.1999,
731, § ZZZ-32
ch.
when
filed his com-
amended
actions
Stitham
1, 2001).
plaint,
legislation
given the District
fective Jan.
recent
Richardson,
divergence
Servs.
856-57 strates the
interests between
(Me.1993)
in
Norma did
(holding Department
privity
rep-
and Norma.
not
Stitham
during
with mother where
on notice
resent Stitham’s interest
the di-
Department
alleged
pending paternity
proceeding.
father’s
vorce
Norma and Stitham
action
which
not in
for this
nonpaternity
privity,
en were
reason the
tered).
judicata
does not act
doctrine
res
action to determine his
bar
Stitham’s
biological
8] The interests
mother
paternity.
not
father are
identical
paternity may
actions which
be deter-
III. SUMMARY JUDGMENT
mined. The
mother
It is
that when we
well-established
want the
*4
summаry
grant
judgment,
review the
does
him
determined because she
not want
light
consider the
we
evidence
most
child,
to establish a
with the
against
party
favorable to the
whom the
she does not
want him be allocated
issued,
affirm
judgment
only
we will
is
and
of the child.
upbringing
The
judgment
if a
review
the record
include,
paternity
determination of
can
genuine
that
is no
demonstrates
there
is-
to,
least
lead
visitation with the
grant
sue of
material fact and
decision-making regarding the educatiоn
as a matter
was correct
of law.
and medical care of
and
various
¶
Assocs.,
110, 4,
Cyr v. Adamar
2000 ME
and
legal
moral duties. The finances of
603, 604.
Henderson claims that
mother,
husband,
her
and the biologi-
summary judgment should not have been
may
cal father
that the
such
mother’s
(1)
granted against him three
reasons:
hope
best
for ongoing
support
financial
Maine
on Paternity
Uniform Act
does
is
child from the husband rather than the
not allow a paternity action when the child
biologicаl
father. The mother
choose
woman;
born
to married
to complicate
not
proceedings by
divorce
dispositive,
DNA test
not
results are
and
injecting
disputed
paternity claim into
genuine
there was a
issue of fact as to the
Henderson,
action.
as the party claim-
child;
paternity
judicata,
res
ing
nothing
has offered
was entitled to the
presumption
legiti-
indicate that the
actual situation Norma
macy.
Stitham,
at the time of the District
judgment,
Court divorce
wаs such that
first
[¶ 11] Henderson
contends
Norma was in fact representing Stitham’s
that
Act
Maine’s version of
Uniform
on
interest. Although Norma and Stitham Paternity
bring
does not allow Stitham to
now,
married
are
and it
be safe to the action
Act was not
because the
intend
currently
assume
their interests
are
ed to allow a
to establish that the
no
aligned,
assumption
such
can be made
father of a child born to a married woman
their
interests
identical at
were
anyone other than the woman’s
is
husband.
time Nonna and
were
di-
definition,
points
He
to the
included in the
vorced.
act,
uniform
from the
but omitted
Maine
version,
a court-approved
9] We have held that
that “a child
out of wedlock
born
paternity
action
settlement
between
includes
child born to married woman
biological parents
binding
by
is not
a man
husband.”
on
other that her
Unif.
Pateenity
nonparties
bar
and does not
either the Act ON
9B U.L.A. 350
(1987). However,
Harris,
or the
of Human
Department
Ser-
in Denbow
Webstеr,
(Me.1990),
vices from
we
litigating paternity.
concluded
A.2d at 794.
divorce between
that the definition in the uniform act is
The
There,
by agreement,
surplusage.”
and Norma was
“mere
the mother of
the issue of
was not
child born
mother was
paternity
raised
while the
married-
brought
against
the court.
fact alone démon-
a man
paternity
before
This
action
no
Henderson is not
genuine dispute
had
married. He
to whom she
not been
Thus,
summary
ground
on
the Maine
defended
is not
judgment declaring that Hеnderson
its
to enact
Legislature, by
failure
proper.
the child’s
father was
out
definition of “born
uniform act’s
wedlock,”
limit
ac
intended to
summary judgment declaring
The
to circumstances where children were
tions
that Stitham is the child’s
rejected
born to unmarried women. We
Act,
because
proper.
was also
Under
that the dictio
argument
noted
is not
the DNA tests
Stitham
excluded
is “with
nary definition of “out of wedlock”
the percentage
as the father
because
legally
thе natural
married to
parents
probability
higher
his paternity
is
(quoting
each
other.” Id.
97%, he
to be the father.
presumed
than
is
Third
Webster’s
1561(1)(D).
to 19-A
Id.
Pursuant
New INTERNATIONAL DICTIONARY UNABRIDGED
(1986)).
in Den-
precise holding
(1998),
presumption
Act
Paternity
bow was: “The Uniform
clear
only
can
be overcome
even when the
allows
action
Nothing
evidence.
convincing
a mother who married.”
child is born to
facts,
Henderson’s statement of material
Denbow,
[¶ 12] summary inappropriate Finally, be contends was disposi given are that benefit of M.R. cause the DNA test results not he was not the legitima of genuine presumption issue as Evid. 302 the tive and there remains asserting cy. Rule 302 states that to child. Hendersоn the the to, or con expert illegitimacy his or child born presented has not own other the bur validity by, ceived a married woman has wise of the DNA challenged beyond a illegitimacy rea proving test results exclude den of tests. Those However, 19-A M.R.S.A. father sonable doubt. as the (1998) § Rule is not states that that that Stitham is probability state blood or tissue applicable when “reliable father is 99.96%. test is presumed in Act that the not Uniform on tests show provision result 1564(1)(A), (1998), § § or Paternity, biologicаl parent,” id. 19-A M.R.S.A. alleged that the is if the demonstrate that “tests show declares that tests father, probability not not the “the excluded “alleged father” is 97% or alleged father’s is question of must be resolved ac 1564(1)(B). 1561(1)(A).3 § This statute higher,” id. Id. Given-that cordingly.” applicability excludes disputed, plainly are there is the test results by participate in “alleged ordered the court argues the term been testing. in to Stitham. father” as used the Act refers DNA thorough reading all of in only A the sections used, argument Stitham can Henderson's however, is Act in which the term "alleged father” because considered clearly a case where there indicates in brought is without the action merit. Stitham claim, are claimed men who both are two be, can be both the father parties their statements 4. At the time the filed Indeed, allege "alleged both father.” facts, 7(d) M.R. P. was the Civ. material they they Because both are the child's father. 1, 2001, January applicable Effective rule. fаthers, allege could have either themselves 7(d) abrogated and M.R. Civ. P. Rule the Act allows an brought the action since statements, 56(h), governs such which now complaint. "alleged father” file wa,s adopted. could have Either Rule 302 presumption, and Henderson is determination of the best interests of not entitled to the K.M.H. presumption legitima- involving custody Matters cy- best interests of a child in equitable are
nature and not for are determination T., See In re Shane jury. IV. COUNTERCLAIM TO (Me.1988) (holding 1296-97 father not enti- EQUITABLE ESTABLISH in jury tled trial termination parental PARENTAL RIGHTS rights discussing case and the equitable The Superior Court allowed determinations). origins custody Henderson to file late counterclaim to A post-divorce motion pending establish his equitable parental rights, but in the District concerning (1) dismissed it without prejudice because right Henderson’s of contact with the party; Norma is not a Stitham did not child. The District jurisdiction Court has request any relief concerning his parental to determine the rights regarding with the child other than the declaration of the children before it and post- divorce paternity; post-divorce motion, divorce §§ matters.6 19-A M.R.S.A. brought by Henderson to enforce visita 1653(10) (1998). Superior Until tion, is pending the District Court. The Court’s declaration that Henderson is not court concluded that in order “to afford the biological Henderson was the a full panoply [Henderson] remedies legal father to parent-child K.M.H. The Court,” the District it would dismiss the relationship, shown by undisputed counterclaim without prejudice.5 We con affidavit, facts his him places clude that Court was correct position of a de facto parent. Because in dismissing the counterclaim. prior legal his relationship to the child and *6 his current role as a de parent, facto [¶ 16] argues that he jurisdiction District Court has to decide is jury entitled to a trial on his counter whether it in is the best claim, interests of and the Court is only K.M.H. for Henderson to have a continu- forum in which he can jury have a trial. ing role in her life and what that role failed, however, He has to cite authori should be. ty for an entitlement a jury to trial on a claim equitable parental rights. To the Hopefully, parties, these keeping extent that he equitable parental the best interests of the child uppermost in rights with regard K.M.H., minds, the exercise own, their either on their or with of such totally is dependent upon a assistance of able management case 5. Thе District Court is the forum where sensi- statutory The District Court also has the family tive ordinarily matters should authority be re- to award contact with a child to a solved. The 1653(2)(B) District Court now party. has exclusive third § 19-A M.R.S.A. jurisdiction See, family in most matter provision cases. this could not be P.L.1999, 731, e.g., (effective § ch. ZZZ-4 interpreted give Jan. to allow a court to contact to 1, 2001) (codified 152(11) § at 4 person M.R.S.A. a child, awith limited to the (Supp.2000)) (giving objections the District Court exclu- parents, over the of the divоrce, annulment, jurisdiction sive person significant Henderson is a bonds actions); judicial separation placed to the even if he needs to be into P.L.1999, (Supp.2000), § 1556 amended party. the status of a third See Rideout v. 731, (effective 1, 2001) Riendeau, 198, ¶¶27, 33, ch. ZZZ-32 Jan. 2000 ME 761 A.2d 291, (giving jurisdic- District Court exclusive (upholding constitutionality 302-03 actions). Act, tion in Grandparent The District Court of the Visitation 19-A Family (1998 §§ includes the Court Supp.2000). Division with case M.R.S.A. 1801-1805 & management purpose by narrowly officers for the interpreting grandpar- of man- it to allow ents, aging expediting parents such matters. 4 who had functioned as to chil- time, (Supp.2000); M.R.S.A. 183 significant period R. Fam. Div. dren for a to invoke Rptr., parens patriae Dist. Ct. Me. authority 699-709 A.2d CXXI- court children). CXXII. seek contact with the
604 mediator, difficult and agree upon proof was also
officer will and/or Harris, arrangement for the child. We Denbow v. best unreliable.8 See (Me.1990) is recognize Stitham not (noting prior A.2d but the District proceeding, District Court tests, baby to the was exhibited blood appropriate permit it find resemblance).9 family As jury to show Stitham, who has now been declared to be proof pro and methods of testing blood to intervene if he so gressed, pre we the absolute repudiated requests.7 allowing sumption be presumption proof rebuttal entry is: Ventresco, yond a doubt. See reasonable Judgment affirmed. presumption That at 108-09. in the Rules of eventually embodied SAUFLEY, J., concurring files a opinion 302; Denbow, M.R. Evidence. Evid. See DANA, joined by ALEXANDER and JJ. A.2d at 206. SAUFLEY, J., with whom in bio- With the recent advances J., ALEXANDER, DANA, join, J. law technology family human genetics, concurring. further evolution. Because undergoing is analysis [¶ I concur the Court’s 19] accurate, testing sufficiently is now and the result in this matter. I write a hurdle once presumption paternity, separately to the Court’s refer- address overcome, can now be very difficult to parenthood ence to de facto by a test. swept simple aside See of law that Henderson and area result, there As emerging from the intersection of tradi- possibility, as this case now the real exists policies and modern tional social demonstrates, man become one testing abilities. biological father legally acknowledged centuries, during For
[¶ child born 20] another, through marriage while the child of the marriage was considered mother, ac- legally has been to the marriage, of con parties regardless knowledged factually involved father. trary allegations paternity. See Ven “by mar- The status Bushey, Me. tresco *7 declaring following adjudication riage,” (1963). 104, As a of public 106 matter father, is biological another man is the necessary pre policy, approach this was the consistently throughout not addressed preclude un vent “bastardization” and to enacted stat- country. Some states have and family peace into warranted intrusions mar- recognizing that man explicitly utes Atkinson, 160 harmony. Atkinson v. See the (1987). mother at the time of 516, ried to child’s 601, 518 408 N.W.2d Mich.App. оf legal regardless evidentiary parent, birth is a practical perspective, child’s From a marriage, was of previously the man "accused” putative 7. have We held father, being a adjudi guilty guilty whose has not been or not of and found cated, right, pursuant may not intervene as “at If mother identified the father father. the of 24(a), pro post-divorce travail,” Civ. P. in a to M.R. ceeding signifying period of time after the the the mother and her ex-hus between had but before pains of labor commenced the during the where child was born band the regarded as it was the birth of the marriage of mother her ex-husband. the v. competent paternity. of See Beals evidence 137, Morrill, (Me. 138 Morrill v. Furbish, 39 469Me. 1993). per possibility suggested We the intervention, P. under M.R. Civ. missive disapproved. See approach was later 9. This Morill, 24(b), might 632 at állowed. A.2d be 169, 348, Hall, 17 170 v. 81 Me. A. Overlook 138. complainant cannot (holding that a of purposes evidence offer child into allow bastardy,” 8. crеated to In an "action in resemblance). showing family of adjudication paternity in the absence the of 605 recognition relationship legal biologi- the of a different human between father a man newly cal father.10 child. When has been deter- biological of a mined to be the father Maine statutes are on the [¶23] silent responsibility the courts have a to assure does, however, issue.11 Maine law create not, cause, lose that the child does without biоlogical an avenue for fathers to assert with has relationship person the the who paternity, claim see of acknowledged to previously been be (1998), § 1553 even when the child has a law, marriage, through father both in the was previously who understood fact, through development and in be because he was married to parental relationship over time.13 at the mother time of the child’s Thus, although recognizes birth.12 the law law, developing In area this rights legal rеsponsibilities action, many legislative in the absence of newly biological it does established However, questions remain unanswered.14 directly address the consequences today we recognized have legal recognition for the who- person previously existing legal Henderson’s had previously thought himself to be the relationship factual to K.M.H. gives authority District to recognize may pro- DNA testing parent15 de facto and to Henderson as bright vide a line for the bio- determining act the best interests of K.M.H. See INSTITUTE, logical relationship between a man and a LAW AMERICAN Princi- child, it does not and ples cannot Law Family define Dissolution: See, them, 3(B) e.g., 10. gain custody tit. even when it means Okla. Stat. Ann. (West 2000) ("If during breaking child is aup born an- marriage course and is reared man who has lived as the child’s other family husband wife as a very member of their father and whom the child disputing legitimacy without the child's for a attached. period Harris, years, presump of at least two Reconsidering Leslie Joan the Criteria Fatherhood, disputed by tion cannot be anyone.”); Legal 1996 Utah L. Rev. Tenn. (includ 102(26)(B) (2000) 36-1— Code Ann. ing "legal parent” in the definition of a man See, Riendeau, "who or has been e.g., married to the 13. Rideout ME ¶ 198, 28, (”[T]he of the child mother if the was bom State during marriage”); compelling W. Va. CODE 48-4- demonstrated that it has interest l(i) (2000) (including providing in the definition of "le grandparent, a forum in which a gal father" man parent "[w]ho [the is married as a ... who has acted tо the child child.”). conception” continuing mother the time child’s] seek contact with the "who is married to [the child’s] mother at Cole, child”); time birth of the Smith v. historically, example, concept For (La. 1989) (“The legal So.2d tie of "maternity rarely test” discussed because by subsequent will not be affected was, definition, pres- mother tie.”). proof the child's actual ent at the of the child. Given advances birth *8 genetics, assumption always will not 11. of a A father child bom out of wedlock is hоld. support liable for of the child to the same as a father a extent child born in wedlock. parent 15. has defined de facto One court 19-A M.R.S.A. 1552 following manner: noted, guidance author has As one absent biologi- parent A is one who has no de facto courts, system a from the results of such child, participat- cal but has relation disruption a unintended stable ed child’s life as a member of in the family: family. parent The de facto resides and, psy- with the consent This clаsh between the emotional with the child per- chological legal legal encouragement parent, of the value of families and caretaking at governing adverse functions rules consequences. them has several forms a share legal parent. consequence great as the One ... least as L.M.M., signifi- 429 Mass. 711 N.E.2d fathers who have had no E.N.O. cant with their children Recommendations, par- facto continue as a de
Analysis marriage shall continuing relatiоnship with ent and have (Tentative 2.03(l)(c) 4, April Draft No. the child. 2000).16 Thus, opinion I concur in the question one has Accordingly, the Court. a man been been resolved. When to have been the father understood law child, marriage the child’s through
mother, and courts have determined different man is child, Court has the the District determine,
authority to inter- best whether
ests (cid:127) 2.03(l)(c) following complete inability legal suggests failure or 16. Section functions, determining parent- de perform caretaking for facto parent standards (A) hood: performed majority of regularly caretaking for the functions (c) parent is an other A de individual facto (B) performed regularly share care- legal parent by estoppel parent than a great taking functions at least as who, significant period not less time parent pri- the child with whom years, than two marily lived. and, (i) lived the child Principles Law (ii) primarily fi- other than Law reasons Institute, American Family Analysis Dissolution: and Recom- compensation, nancial and with the of mendations, 2.03(i)(c) (Tentative Draft No. agreement legal parent to form 10, 2000). parent-child relationship, April or as a result of