“Good Cause” in a Paternity Action
A married man in Arizona is the presumed father of a child born during the marriage. However, another man may bring a paternity action and the court can order blood testing to make the determination. Can it reject blood testing by applying the “good cause” requirement in Rule 35(a) of the Arizona Rules of Civil Procedure? In Antonsen v. Superior Court, 918 P.2d 203 (1996) the Arizona Court of Appeals considered the issue.
The Antonsen’s were married on January 9, 1990. Wife had a child, “B”, in July of the same year. Four years later, Husband filed for divorce naming B as a child of the marriage. He requested custody of B and a later child born to the couple.
In February, 1995, Mr. Witt filed a paternity complaint charging that he was B’s natural father. The state child support division asked for paternity testing in the dissolution case. The Commissioner, Patricia Shaler-Reed, granted this motion pending post-hearing briefing.
Husband’s post-hearing memorandum stated that he did not oppose paternity testing. The Commissioner nonetheless reversed the ruling and denied the motion for paternity testing. She stated that the petition failed to show good cause required by Rule 35 of the Arizona Rules of Civil Procedure. However, three days later, she signed an “Order for Blood Test” ordering paternity testing at the state’s expense.
In May, 1995, Judge Pro Tem Toby Maureen Gerst consolidated the dissolution and the paternity action. She ordered blood testing pursuant to Commissioner Shaler-Reed’s order. She also awarded temporary custody of the child to the wife. Noting child abuse allegations against Husband, she granted him supervised visitation.
Blood sample results were submitted to the trial court. Judge Joseph Howe denied a motion to exclude the blood testing results. However, when he learned about the confusion that occurred about the order, he said he would investigate. He said that if the order for paternity testing was a mistake, he would seal the results.
In the meantime, in August, 1995, Wife filed a motion for paternity testing pursuant to A.R.S. section 12-847(C). She alleged that Husband was not the child’s father and that he knew it when they married. She argued that blood testing was required under A.R.S. section 12-847(C), and that “good cause” existed to order such testing.
Husband opposed this and Judge Howe entered an extensive ruling on all pending motions. The judge ruled that the paternity test results be sealed and excluded from evidence. He also denied the motions for paternity testing, noting that Commissioner Shaler-Reed had vacated the order for paternity testing. Wife filed this special action appeal on December 11, 1995.
Relationship of Rule 35(a) and A.R.S. section 12-847(C)
Rule 35(a) of the Arizona Rules of Civil Procedure provides that the court can only order blood testing if good cause is shown. The statute permitting paternity testing has no such requirement.
The Court first considered whether Commissioner Shaler-Reed abused her discretion in applying the good cause requirement to this issue. The Court reviewed decisions in other states that have addressed this issue. It found three general groups of decisions.
First, states that do not have a statute requiring blood testing upon request of a party apply their analogous version of Rule 35(a) to paternity cases. They require both “good cause” and notice to all parties, and leave the decision to court’s discretion. They generally find good cause if one of the presumptive parents controverts paternity.
A second group of cases involves jurisdictions that have adopted specific statutes requiring the court to order genetic testing in a paternity action. These states have found that the mandatory language in the paternity statute takes precedence over the discretion afforded a trial court generally.
A third group of court cases refuse to allow paternity testing even under a specific paternity statute. These cases refuse testing when a third party, rather than either of the presumptive parents, challenges paternity. In such cases, a finding of “the best interests of the child” is required before ordering a paternity blood test.
Arizona has a strong public policy of preserving a family unit unless the mother or her husband challenge the husband’s paternity. Because of that policy, the Court of Appeals ruled that a trial court must specifically consider the child’s best interests. It must make this determination before allowing a third party to seek blood tests to rebut the presumption of the husband’s paternity.
In Arizona, however, the rule is different when a child’s mother contests her husband’s paternity. The “best interests of the child” determination cannot prevent mandatory paternity testing under A.R.S. section 12-847(C). The best interests of the child determination is made after the resolution of biological paternity shows that the presumptive father is not biologically related to the child.
Cases preventing mandatory testing for policy reasons don’t apply, since Wife asserts that Husband is not the biological father. Husband’s contention that construing the language of A.R.S. section 12-847(C) as mandatory would compel frivolous testing is misplaced here.
The child’s mother contests her husband’s paternity. He was not married to her at the time of conception. Here, the trial court had no discretion to deny a request for blood testing. A.R.S. section 12-847(C) authorizes a suit by a mother contesting the husband’s paternity. Wife established “good cause” for testing under Rule 35(a) by allegations that Husband was not the child’s father.
The Court of Appeals noted that the legislature actually wrote “good cause” into the statute by creating limitations. The statute requires paternity testing only upon motion of a “party to the proceedings.” That means a motion by the mother, father, child’s best friend, public welfare official, or the state, or upon the court’s own motion.
By narrowing the category of who can bring a paternity proceeding, the legislature implicitly determined who has “good cause” to request mandatory paternity testing. A “stranger” cannot obtain mandatory paternity testing where both presumptive parents assert paternity.
The Court of Appeals found that the trial court abused its discretion in denying Wife’s motion for blood testing. It directed the court to grant mother’s request for paternity testing and to admit the results in the paternity action. It noted that if a trial court determines that Husband is not either a biological parent of B, it does not have jurisdiction to make an award of custody or visitation to him.