State Ex Rel. Cihlar v. Crawford

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

February 2000 Session

STATE OF TENNESSEE EX REL. THOMAS MATTHEW CIHLAR, ET AL.

v. RONALD SHANE CRAWFORD, ET AL.

Appeal from the Davidson County Juvenile Court

No. 9819-43323 Betty Adams Green, Judge

No. M1999-00517-COA-R3-CV - Filed August 22, 2000

This appeal involves Thomas Matthew Cihlar’s second attempt to obtain a judicial declaration that

he is the father of a child whose mother was married to another man when the child was born. His

first effort ended when the Tennessee Supreme Court held that he did not have standing to legitimate

the child under Tennessee’s now-repealed legitimation statutes. See Evans v. Steelman, 970 S.W.2d

431 (Tenn. 1998). Thereafter, the State of Tennessee, joined later by both Mr. Cihlar and his child,

filed a petition in the Davidson County Juvenile Court seeking to establish Mr. Cihlar’s parentage

under statutes enacted after Mr. Cihlar filed his first legitimation petition. Following a bench trial,

a juvenile court referee determined that Mr. Cihlar was the child’s biological father, ordered Mr.

Cihlar to begin making child support payments, and prescribed Mr. Cihlar’s visitation privileges.

The juvenile court judge later affirmed the referee’s order. On this appeal, the estranged husband

of the child’s biological mother asserts that Mr. Cihlar’s petition to establish parentage was

foreclosed by Evans v. Steelman. We have determined that the current parentage statutes are

constitutional and that they authorize not only Mr. Cihlar, but also the State and Mr. Cihlar’s child,

to file an action to establish Mr. Cihlar’s paternity. Accordingly, we affirm the juvenile court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed

WILLIAM C. KOCH , JR., J., delivered the opinion of the court, in which WILLIAM B. CAIN and

PATRICIA J. COTTRELL, JJ., joined.

Ronald Shane Crawford, Joelton, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter, and Stuart Wilson-Patton, Assistant Attorney

General, for the appellee, State of Tennessee.

Wayne Detring, Hendersonville, Tennessee, for the appellee, Thomas Matthew Cihlar.

Nannette Clark, Nashville, Tennessee, Guardian Ad Litem for Sean Michael Crawford.

OPINION

Mary Ann Crawford and Ronald Shane Crawford were married on July 2, 1988, after she

gave birth to Mr. Crawford’s child. They separated in the autumn of 1990. Within a matter of

weeks, Ms. Crawford, who was working as a topless dancer at the time, moved in with Thomas

Matthew Cihlar whom she had met shortly after leaving Mr. Crawford. This liaison ended in April

1991 when Ms. Crawford left Mr. Cihlar and moved in with her mother. In parting, Ms. Crawford

told Mr. Cihlar for the first time that she was married and also assured him that she was not

pregnant. She proved to be mistaken about the latter. In August 1991, she told Mr. Cihlar that she

was pregnant with his child. Ms. Crawford and Mr. Cihlar shopped for baby clothes and even agreed

upon the child’s name. Sean Michael Crawford was born on November 29, 1991.1

Ms. Crawford permitted Mr. Cihlar to develop a personal relationship with his son soon after

Sean’s birth. She allowed regular overnight visits on most weekends and accepted Mr. Cihlar’s

voluntary financial contributions for Sean’s support. Mr. Cihlar’s liberal access to his son continued

even after Ms. Crawford began seeing Mr. Crawford again in February 1992. Mr. Crawford

apparently knew that he was not Sean’s father and did not object to the developing relationship

between Mr. Cihlar and Sean or to Mr. Cihlar’s regular financial contributions for Sean’s support.

The record contains little information regarding the relationship between Mr. Crawford and Sean,

and there is certainly no evidence that Mr. Crawford maintained any sort of relationship with Sean

after he and Ms. Crawford separated for the second, and apparently final, time in September 1993.2

The relationship between Ms. Crawford and Mr. Cihlar deteriorated markedly after July 1994

when Mr. Cihlar filed a petition in the Circuit Court for Davidson County to legitimate Sean

pursuant to Tenn. Code Ann. § 36-2-202 (repealed 1997). Ms. Crawford opposed the petition and

ended Mr. Cihlar’s visitation with his son. Mr. Crawford, even though estranged from Ms.

Crawford, also opposed the petition. On October 27, 1995, following a bench trial, the circuit court

entered an order declaring Mr. Cihlar to be Sean Crawford’s biological father and changing the

child’s surname to Cihlar. The trial court also ordered Mr. Cihlar to pay child support and

established a regular visitation schedule with Sean. The Crawfords appealed. On October 18, 1996,

this court reversed the trial court on two grounds. First, the court held that the legitimation statutes

did not give Mr. Cihlar standing to legitimate his son. Second, the court concluded that Mr. Cihlar

could not proceed with his legitimation petition because Ms. Crawford had not consented to it. See

In re Crawford, No. 01A01-9602-CV-00070, 1996 WL 596953, at *4 (Tenn. Ct. App. Oct. 18, 996).3

1

There is no question regarding who Sean’s biological parents are. Genetic tests have confirmed th a t M r.

Cihlar, not Mr. Crawford, is Sean’s biological father.

2

As far as this record shows, the Crawfords remain separated with no thought of reuniting or of obtaining a

divorce . Ms. Craw ford wa s in a relations hip with a nother m an by th e time this ca se reache d the Circu it Court.

3

Tenn. Code Ann. § 36-2-202(c) (repealed 1997) required maternal consen t before a p utative fath er could f ile

a legitimation petition. However, four months before the court handed down its opinion in Mr. Cihlar’s case, another

panel of the court invalidated this maternal consent requirement on constitutional grounds after the Attorney General

and Reporter conceded that it deprived prospective fathers of due pro cess. See In re Hood, 930 S.W.2d 575 (Tenn. Ct.

(continued...)

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The Tennessee Supreme Court granted permission to appeal and consolidated the case with another

one raising the same issues.4

While these two cases were pending before the Tennessee Supreme Court, the General

Assembly repealed both the paternity statutes5 and the legitimation statutes6 and replaced them with

a single cause of action for establishing the parentage of a child.7 This Act, which became effective

on July 1, 1997, did away with the presumption that a child born to a married woman was the

offspring of the woman’s husband. See Tenn. Code Ann. § 36-2-304(a)(1), -304(c). It also

specifically authorized any man claiming to be a child’s father to file suit to establish parentage

regardless of the marital status of the child’s mother. See Tenn. Code Ann. § 36-2-305(b)(1)(C).

In addition, the Act contained a limitations provision requiring parentage actions that would rebut

the presumption of parentage based on the marriage of the child’s parents to be filed within two

years of the birth of the child. See Tenn. Code Ann. § 32-2-304(b) (Supp. 1997).8

The Tennessee Supreme Court handed down its decision in both cases on March 30, 1998.

See Evans v. Steelman, 970 S.W.2d 431 (Tenn. 1998). The Court found that the now-repealed Tenn.

Code Ann. § 36-2-202 was constitutional and that Mr. Cihlar did not have standing to legitimate his

son. See Evans v. Steelman, 970 S.W.2d at 434. Even though the Court noted that the General

Assembly had replaced the legitimation and paternity statutes with the action to establish parentage,

3

(...continued)

App. 1996).

4

See Evans v. Steelman, No. 01A01-9511-JV-00508, 1996 WL 557844 (Tenn. C t. App. O ct. 2, 1996 ), perm.

app. granted, (Tenn. Ja n. 27, 19 97).

5

The paternity statutes, Tenn. Code Ann. §§ 36-2-101, -11 5 (repealed 1997), provided wom en with a vehicle

to obtain a judicial declaration regarding the identity of their child’s father.

6

The legitimation statutes, Tenn. Code Ann. §§ 36-2-201, -210 (repealed 1997), provide d men with a veh icle

for obtaining judicial recognition of their parental rights as a child’s biological father.

7

See Act of May 29, 1997, ch. 477, 1997 Tenn. Pub. Acts 862, codified at Tenn. Code Ann. §§ 36-2-301, -322

(Supp. 1 999).

8

This provision was the sole exception to the general statute of limitations providing that actions for parentage

could be filed up until three years bey ond the child’s age of majo rity. See Tenn. Code Ann. § 36 -2-306(a) (Supp. 1999).

In 1998, the General Assembly amended Tenn. Code Ann. § 36-2-304(b) to shorten the two-year limitations period to

twelve month s and to lim it the circumstances to which it would apply. Following the 1998 amendment, the shortened

limitations period could only be invoked when (1) the mother was married and living with her husband at the time of

conception, (2) if she has “remained together with that husband through the date a petition to esta blish patern ity is filed,”

and (3) the mother and her husband file a sworn answer stating that the husband is the father of th e child. See Act of

April 29, 199 8, ch. 1098, § 8, 1998 Tenn. Pub . Acts 1113, 1116, codified at Tenn. Code Ann. § 36-2-304 (b)(2)(A).

Neither version of this statute of limitations period figures in the resolution of this case because Mr. Crawford never

asserted a statute of limitations defense to either M r. Cihlar’s leg itimation p etition or to th e parenta ge action filed in

August 1998.

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it declined to permit either Mr. Cihlar or Mr. Evans to take advantage of the new statutes because

the General Assembly had specifically declined to make the new statutory provisions apply to

legitimation or paternity actions filed before July 1, 1997. See Evans v. Steelman, 970 S.W.2d at

432.

On August 10, 1998, the State of Tennessee, acting pursuant to its federally mandated

prerogatives under Title IV-D of the Social Security Act, filed a petition in the Davidson County

Juvenile Court to establish that Mr. Cihlar was Sean’s biological father.9 A juvenile court referee

appointed a guardian ad litem for Sean, and the guardian later filed a supplemental petition on behalf

of Sean seeking a formal parentage determination. Mr. Cihlar also retained a lawyer to represent his

interests during the juvenile court proceedings. Mr. Crawford opposed this petition.10 Following

a hearing, the juvenile court referee entered an order concluding that Mr. Cihlar was the biological

and legal father of Sean Michael Crawford. The order, which was affirmed by the juvenile court

judge on April 7, 1999, also established Mr. Cihlar’s child support obligation and his visitation and

other rights. Mr. Crawford as appealed from the juvenile court judge’s order.

Less than one month after Mr. Crawford filed his notice of appeal, the General Assembly

again amended the statutes governing actions to establish parentage to express its “clear and

unequivocal” intent for the new parentage statutes to apply retroactively to biological fathers whose

legitimation actions filed prior to July 1, 1997 were dismissed either because of the biological

father’s lack of standing or the irrebuttable presumption of parentage arising from the marital status

of the child’s mother. See Act of May 24, 1999, ch. 339, Tenn. Pub. Acts 756, codified at Tenn.

Code Ann. § 36-2-304(b)(2)(B). There can be little doubt that the General Assembly enacted this

amendment to address the Tennessee Supreme Court’s holding in Evans v. Steelman regarding the

retroactive application of the 1997 statutes creating the cause of action to establish parentage.

I.

STANDING TO PURSUE A PARENTAGE DETERMINATION

We turn to the standing issue first. Clearly, Tenn. Code Ann. § 36-2-305(b)(1) empowered

not only Mr. Cihlar, but also Sean and the State, to file an action to establish parentage. However,

9

The suit was filed by Child Suppo rt Services, In c., a private company with whom the Tennessee Department

of Human Services had contracted to provid e Title IV-D child supp ort collection services. See State ex rel. Brown v.

Brown, No. 01A0-9509-CV-00428, 1997 WL 749452, at *1 n.2 (Tenn. Ct. App. Dec. 5, 1997) (No Tenn. R. App. P.

11 app lication filed).

10

While some of the pleadings include Ms. Craw ford’s name, they do not consistently indicate whether she

actively opposed the petition to establish parentag e filed in the ju venile co urt. All the ea rly pleadin gs refer on ly to Mr.

Crawford as the sole “respondent,” and his lawyer’s motion to be relieved states that M r. Crawfo rd was h is only clien t.

Ms. Crawford has not signed any o f Mr. Crawford’s pro se papers. Accord ingly, we will refer to Mr. Crawford

individually in this opinion.

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Mr. Crawford asserts that the doctrines of res judicata and collateral estoppel prevent Mr. Cihlar and

anyone in privity with him from filing suit seeking this remedy because the Tennessee Supreme

Court had already determined that Mr. Cihlar lacked standing to legitimate Sean. We disagree for

two reasons. First, the legal relations of the parties changed in a material way after the Tennessee

Supreme Court’s opinion when the General Assembly specifically empowered persons like Mr.

Cihlar to file actions to establish parentage. Second, even if Mr. Cihlar himself could not file an

action to establish parentage, both Sean and the State of Tennessee could because they are not in

privity with Mr. Cihlar, even though their interests are related.

A.

RES JUDICATA AND COLLATERAL ESTOPPEL

Res judicata and collateral estoppel are related preclusion doctrines with common purposes.

They promote finality in litigation in order to conserve judicial resources and to relieve litigants from

the cost and vexation of multiple lawsuits. See Beaty v. McGraw, 15 S.W.3d 819, 824 (Tenn. Ct.

App. 1998); Lien v. Couch, 993 S.W.2d 53, 55-56 (Tenn. Ct. App. 1998).

Res judicata is a claim preclusion doctrine. See Moulton v. Ford Motor Co., 533 S.W.2d

295, 296 (Tenn. 1976). It bars a second suit between the same parties or their privies on the same

cause of action with respect to all issues which were or could have been raised in the former suit.

See Richardson v. Tennessee Bd. of Dentistry, 913 S.W.2d 446, 459 (Tenn. 1995); Hampton v.

Tennessee Truck Sales, Inc., 993 S.W.2d 643, 645 (Tenn. Ct. App. 1999). However, a previous

judgment cannot extinguish a claim that did not exist and could not possibly have been sued upon

in the previous case. See Lawlor v. National Screen Serv. Corp., 349 U.S. 322, 328, 75 S. Ct. 865,

868 (1955); St. Pierre v. Dyer, 208 F.3d 394, 400 (2d Cir. 2000); Landeros v. Pankey, 46 Cal. Rptr.

2d 165, 169 (Ct. App. 1995); Lien v. Couch, 993 S.W.2d at 56. In addition, a prior judgment for the

defendant, although valid and final, does not bar the plaintiff from filing another action on the same

claim when, either by statute or rule of court, the judgment does not operate as a bar to another

action on the same claim. See Restatement (Second) of Judgments § 20(1)(c) (1982).

Collateral estoppel is an issue preclusion doctrine. See Dickerson v. Godfrey, 825 S.W.2d

692, 694 (Tenn. 1992); Goeke v. Woods, 777 S.W.2d 347, 349 (Tenn. 1989). Once an issue has been

actually or necessarily determined by a court of competent jurisdiction, the doctrine of collateral

estoppel renders that determination conclusive on the parties and their privies in subsequent

litigation, even when the claims or causes of action are different. See Massengill v. Scott, 738

S.W.2d 629, 631 (Tenn. 1987); King v. Brooks, 562 S.W.2d 422, 424 (Tenn. 1978); Beaty v.

McGraw, 15 S.W.3d at 824. It applies to both issues of law and issues of fact.11 See Restatement

(Second) of Judgments § 27 (1982). Courts in other jurisdictions have invoked the doctrine of

collateral estoppel to prevent the relitigation of standing issues decided in earlier proceedings. See

Fulani v. Bentsen, 862 F. Supp. 1140, 1150-51 (S.D.N.Y. 1994); Gladysz v. Planning & Zoning

11

The juvenile court referee’s reasoning that collateral estoppel applies only to issues of fact is inco rrect in this

regard. However, even though the reasoning is flawed, the referee correctly determined that the doctrine of collateral

estoppel did no t bar Mr. Cihlar’s claim under the pare ntage statutes.

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Comm’n, 750 A.2d 507, 513 (Conn. App. Ct. 2000); Janitschek v. Trustees of Friends World

College, 671 N.Y.S.2d 490, 492 (App. Div. 1998).

The relitigation of an issue of law between the same two parties is not precluded when a new

determination is warranted in order to take account of an intervening change in the applicable law

or to avoid the inequitable administration of the law. See Restatement (Second) of Judgments §

28(2) (1982); Jackson v. City of College Park, 496 S.E.2d 777, 780 (Ga. Ct. App. 1998); Esslinger

v. Baltimore City, 622 A.2d 774, 784 (Md. Ct. Spec. App. 1993); Borough of Prospect v. Bauer, 715

A.2d 1244, 1245-46 (Penn. Commw. Ct. 1998); Marino v. State Farm Fire & Cas. Ins. Co., 787

S.W.2d 948, 950 (Tex. 1990); Thompson v. Department of Licensing, 982 P.2d 601, 610 (Wash.

1999).

B.

MR . CIHLAR’S STANDING

At the outset, we must determine whether the question of Mr. Cihlar’s standing implicates

the doctrine of res judicata or the doctrine of collateral estoppel or both. The question of standing

is an issue rather than a substantive claim. Accordingly, the doctrine of collateral estoppel, as

opposed to the doctrine of res judicata, applies in this case. We will, therefore, limit our discussion

to the doctrine of collateral estoppel.12 The doctrine of collateral estoppel does not prevent Mr.

Cihlar from pursuing his parentage claim for three reasons. First, the law had changed significantly

between the time Mr. Cihlar brought his original legitimation claim and the time he filed suit under

the 1997 parentage statutes. Where the prior legitimation statutes had been construed not to provide

putative fathers like Mr. Cihlar standing, the new statutes were much broader. Tenn. Code Ann. §

36-2-305(b)(1)(C) specifically gives Mr. Cihlar standing to file suit to establish his paternity even

though Ms. Crawford was married to another man both when the child was conceived and born.

The second reason for not invoking collateral estoppel in this case is that the new parentage

statutes specifically exempt certain litigants from the operation of res judicata and collateral

estoppel. Tenn. Code Ann. § 36-2-304(b)(2)(B) states that both doctrines shall not apply to putative

fathers who petitioned to legitimate their children prior to July 1, 1997 and whose petitions were

dismissed based on the mother’s marriage to another man at the time of conception or the putative

father’s lack of standing. Mr. Cihlar complies with both of these requirements.

The third reason for granting Mr. Cihlar standing to assert his parentage claim is based on

fairness and equity. The 1997 parentage statutes reflect a legislative liberalization of the

requirements imposed on biological fathers seeking legal recognition of their parentage. It would

be inequitable to prevent fathers like Mr. Cihlar who have vigorously pursued legal recognition of

their relationship with their children from taking advantage of the new statutes simply because of

12

W e note pare nthetically th at we wo uld reach the same result regarding the issue of standing if we employed

a res judicata analysis.

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timing. Accordingly, we find that Mr. Cihlar has standing to pursue his parentage claim under the

1997 parentage statutes.

C.

THE OTHER PARTIES’ STANDING

It could also be argued that the doctrine of collateral estoppel precludes Sean and the State

from relitigating the standing question because they are in privity with Mr. Cihlar. This argument

fails for three reasons. First, Mr. Cihlar has standing. Second, the 1997 parentage statutes

specifically afford these parties standing independent of Mr. Cihlar. See Tenn. Code Ann. § 36-2-

305(b)(1)(A), (D). Third, even though their claims are related to Mr. Cihlar’s, neither Sean nor the

State are in privity with Mr. Cihlar for collateral estoppel purposes.

In the context of both res judicata and collateral estoppel, the concept of privity relates to the

subject matter of the litigation, see Harris v. St. Mary’s Med. Ctr., Inc., 726 S.W.2d 902, 905 (Tenn.

1987); Shelley v. Gipson, 218 Tenn. 1, 7, 400 S.W.2d 709, 712 (1966), not to the relationship

between the parties themselves. See Cantrell v. Burnett & Henderson Co., 187 Tenn. 552, 557-58,

216 S.W.2d 307, 309-10 (1948). Privity connotes an identity of interest, see Kelly v. Cherokee Ins.

Co., 574 S.W.2d 735, 738 (Tenn. 1978); Cotton v. Underwood, 223 Tenn. 122, 127, 442 S.W.2d

632, 634-35 (1969), that is, a mutual or successive interest to the same rights. See Fultz v. Fultz, 180

Tenn. 327, 330, 175 S.W.2d 315, 316 (1943); Phillips v. General Motors Corp., 669 S.W.2d 665,

669 (Tenn. Ct. App. 1984).

While the State’s and Sean’s interests are related to Mr. Cihlar’s, they are not identical. This

lack of identity is most pronounced between the State’s interests and Mr. Cihlar’s interests. The

State’s interests are essentially two-fold: (1) to see that “justice is done” and (2) to reduce the

number of persons forced to enter the welfare rolls. See Mills v. Habluetzel, 456 U.S. 91, 103, 102

S. Ct. 1549, 1557 (1982) (O’Connor, J., concurring). In contrast, Mr. Cihlar’s interests involve not

only support matters but also personal matters such has his emotional bonds with the child, the

ability to continue his name, and other rights stemming from a parent-child relationship. See Tenn.

Code Ann. §§ 36-2-311, -313. The lack of identity between the interests of the government and

those of the parents or the child have prompted a number of courts, including Tennessee’s courts,

to decline to invoke either collateral estoppel or res judicata in disputed parentage cases. See

Tennessee Dep’t of Human Servs. v. Skinner, Shelby Cir. No. 54, 1987 WL 25384, at *1-2 (Tenn.

Ct. App. Dec. 4, 1987) (No Tenn. R. App. P. 11 application filed); see also In re Hall, 977 P.2d 776,

781 (Ariz. 1999); S.O.V. v. People ex rel. M.C., 914 P.2d 355, 360 (Colo. 1996); Marsh v. Paternity

of Rogers, 659 N.E.2d 171, 173 (Ind. Ct. App. 1995); State ex rel. Smith v. Smith, 674 N.E.2d 398,

401-02 (Ohio Ct. App. 1996); In re Chad M.G., 535 N.W.2d 97, 99 (Wis. Ct. App. 1995).

Similarly, courts have determined that a child’s interest in a determination of his or her

parentage is not identical to either or both of the parents’ interests. See T.K.S. v. State ex rel. M.S.B.,

673 So. 2d 429, 432 (Ala. Civ. App. 1995) (mother); In re Parentage of Mayberry, 584 N.E.2d 533,

535 (Ill. App. Ct. 1991) (mother); Department of Human Servs. ex rel. Boulanger v. Comeau, 663

A.2d 46, 48-50 (Me. 1995) (both parents); In re Estate of Quintero, 569 N.W.2d 889, 894 (Mich.

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Ct. App. 1997) (both parents); R.B. v. C.S., 536 N.W.2d 634, 638 n.2 (Minn. Ct. App. 1995) (both

parents); Leguillon v. Leguillon, 707 N.E.2d 571, 578 (Ohio Ct. App. 1998) (both parents); Shirley

v. Javan, 684 A.2d 1088, 1090 (Pa. Super. Ct. 1996) (mother); In re Paternity of Amber J.F., 557

N.W.2d 84, 86-87 (Wis. Ct. App. 1996) (mother). One court has also aptly noted that a child’s

interests may not only differ from the interests of one or both of his or her parents but may also

conflict with them. See In re Hall, 977 P.2d at 781-82.

The existence of privity or identity of interest for the purpose of applying res judicata and

collateral estoppel depends on the facts of each case. See Mower County Human Servs. v. Graves,

611 N.W.2d 386, 388 (Minn. Ct. App. 2000). Based on the facts of this case, we find that the State’s

interests in this proceeding differ from those of Mr. Cihlar. We also find that Mr. Cihlar’s interests

are not necessarily identical to his son’s interests. Accordingly, for the purposes of applying res

judicata and collateral estoppel, we find that neither the State nor Sean is in privity with Mr. Cihlar

regarding the subject matter of this litigation. Without this privity of interest, they are not barred

from proceeding in their own right by the earlier judicial determination that Mr. Cihlar lacked

standing to adjudicate the question of parentage under the former statutes.

II.

THE CONSTITUTIONALITY OF THE PARENTAGE STATUTES

Mr. Crawford challenges the constitutionality of the 1997 parentage statutes on the ground

that they permit persons like Mr. Cihlar to interfere with his constitutionally protected right of

parental privacy. While the right of parents to raise their children free from unwarranted

governmental intrusion is entitled to constitutional protection, we find that Mr. Crawford’s attack

on the parentage statutes must fail for two reasons. First, we have determined that the General

Assembly, in enacting the 1997 parentage statutes, has struck a constitutionally defensible balance

among the competing interests implicated whenever a child’s parentage is in question. Second,

under the facts of this case, any interest in preserving whatever may remain of the Crawfords’

“familial” relationship or of Mr. Crawford’s relationship with Sean is weak.

A.

Tennessee’s General Assembly and judiciary have long recognized the family as a vital

societal institution. For example, the General Assembly has stated that it is “the long-standing

public policy of this state to recognize the family as essential to social and economic order and the

common good and as the fundamental building block of our society.” Tenn. Code Ann. § 36-3-

113(a) (1996). Similarly, the Tennessee Supreme Court has noted that “parental autonomy is basic

to the structure of our society because the family is ‘the institution by which we inculcate and pass

down many of our most cherished values, moral and cultural.’” Davis v. Davis, 842 S.W.2d 588, 601

(Tenn. 1992) (quoting Bellotti v. Baird, 443 U.S. 622, 634, 99 S. Ct. 3035, 3043 (1979)).

Many of these statements regarding the importance of families have been made with

reference to the traditional notion of a nuclear family - a married woman and man with their children,

if any. See Tenn. Code Ann. § 36-3-113(b); Perrin v. Perrin, 201 Tenn. 354, 366, 299 S.W.2d 19,

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24 (1957) (noting that marriage is the foundation of the family and society); McCormick v. State, 135

Tenn. 218, 226, 186 S.W. 95, 97 (1916) (noting that the State had a deeply rooted interest in the

protection of the peace of families and in the maintenance of the sacred institution of marriage);

Lonas v. State, 50 Tenn. (3 Heisk.) 287, 309 (1871) (characterizing marriage as the most elemental

and useful social relation); McKinney v. Clarke, 32 Tenn. (2 Swan) 321, 324 (1852) ( characterizing

marriage as the very foundation of all social order and morality). However, the courts have

expanded the concept of “family” to include other relationships, such as a child living with his

grandmother, uncle, and cousin in subsidized housing, see Moore v. City of East Cleveland, 431 U.S.

494, 504-05, 97 S. Ct. 1932, 1938 (1977), or a divorced parent with custody of her child or children.

See Rust v. Rust, 864 S.W.2d 52, 55 (Tenn. Ct. App. 1993).

The integrity of these “family” units has found protection against unwarranted governmental

interference in the Due Process Clause of the Fourteenth Amendment and Tenn. Const. art. I, § 8.

See Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639-40, 94 S. Ct. 791, 796 (1974); In re

Swanson, 2 S.W.3d 180, 187 (Tenn. 1999); Broadwell v. Holmes, 871 S.W.2d 471, 475 (Tenn.

1994); Hawk v. Hawk, 855 S.W.2d 573, 579 (Tenn. 1993). A parent’s right to raise his or her

children without unwarranted governmental interference is a fundamental liberty interest, see State

ex rel. T.H. v. Min, 802 S.W.2d 625, 626 (Tenn. Ct. App. 1990). Accordingly, the State may not

interfere with a parent’s exercise of these rights unless it has a compelling interest for doing so. See

Davis v. Davis, 842 S.W.2d at 602; State Dep’t of Human Servs. v. Ogle, 617 S.W.2d 652, 656

(Tenn. Ct. App. 1980).

More recently, the courts have recognized that the biological father of a non-marital child

may have parental rights commensurate with those of married parents or divorced custodial parents.

The Tennessee Supreme Court has held that a biological father of a non-marital child who has

developed a substantial relationship with the child has a fundamental liberty interest entitled to due

process protection. See Petrosky v. Keene, 898 S.W.2d 726, 728 (Tenn. 1995); Nale v. Robertson,

871 S.W.2d 674, 678 (Tenn. 1994). This court has also held that the biological father of a non-

marital child who has attempted in good faith to establish a relationship with his child has a right to

attempt to create a legally recognized parent-child relationship. See In re Hood, 930 S.W.2d 575,

578-79 (Tenn. Ct. App. 1996). As a result of these decisions, the parental rights of biological fathers

of non-marital children are entitled to the same constitutional protection as the rights of married

parents and divorced custodial parents, as long as the biological father has established a substantial

relationship with the child.

B.

In contrast to the judicial efforts to give constitutional substance to the parental rights of

married parents, divorced custodial parents, and biological fathers of non-marital children,

Tennessee’s courts have avoided providing any sort of constitutional protection to biological fathers

of children whose mother is married to another man. While marital infidelity is certainly not a

modern phenomenon, see, e.g., Cannon v. Cannon, 26 Tenn. (7 Humph.) 410 (1846), the courts have

held that a putative father’s biological relationship to a child does not, by itself, counterbalance

society’s interests in preserving the traditional family unit, maintaining family harmony, and

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promoting what the courts perceive to be the child’s best interests. See In re A., 735 S.W.2d 232,

237 (Tenn. Ct. App. 1987). Accordingly, the courts have used a procedural device to prevent these

fathers from even seeking a judicial determination of their parentage.

At common law, a child born to a married woman was presumed to be the child of the

woman’s husband. Many jurisdictions, either by statute or court decision, viewed this presumption

as conclusive absent proof of the non-access or sterility. Tennessee, however, was among the states

that permitted the presumption to be rebutted by clear and convincing evidence of matters other than

non-access or sterility. See Jackson v. Thornton, 133 Tenn. 36, 39, 179 S.W. 384, 384 (1915);

Frazier v. McFerren, 55 Tenn. App. 431, 440, 402 S.W.2d 467, 472 (1964). Thus, the Tennessee

Supreme Court has permitted a decedent’s family members to challenge an individual’s right to

share in the estate on the ground that the decedent was not her biological father. The decedent’s

family prevailed by presenting proof of the decedent’s wife’s “notoriously licentious conduct” and

her “habit of intimacy” with another man. Cannon v. Cannon, 26 Tenn. (7 Humph.) at 411.

Even though Tennessee’s common-law presumption of marital paternity was rebuttable, the

Tennessee courts have consistently declined to give biological fathers of children born to women

married to another the opportunity to establish their parentage. Reflecting their disapproval of men

having affairs with married women, the courts have declined to even give standing to biological

fathers who seek a judicial declaration of their parentage. In the first reported case on this subject,

this court based its decision that a biological father lacked standing on an extremely narrow

interpretation of the legitimation statutes. The statutes permitted legitimation proceedings only for

a “child not born in lawful wedlock.” The court construed the phrase to include only children born

to unmarried women. Thus, said the court, the statute did not apply to children whose mothers were

married, even if they were married to someone other than the child’s biological father. See

Cunningham v. Golden, 652 S.W.2d 910, 912-13 (Tenn. Ct. App. 1983).

The Tennessee Supreme Court addressed the standing question for the first time in 1998 in

the precursor to this proceeding. On that occasion, the court simply chose to adopt the reasoning of

Cunningham v. Golden. To support its decision, the court noted that the General Assembly had

acquiesced for fifteen years in the interpretation of the legitimation statutes in Cunningham v.

Golden and, therefore, that the General Assembly must not have intended to give biological fathers

of children born to married women any sort of legally protected interest in their relationship with

their child. See Evans v. Steelman, 970 S.W.2d at 434-35. Accordingly, the court made a marked

distinction between the rights of biological fathers of children born to unmarried women and those

of biological fathers of children born to married women.

C.

As the preceding discussion indicates, Tennessee’s pre-1997 law governing disputes over the

parentage of children born to married women, like the law in many other states, was a curious

admixture of ancient, common-law presumptions, statutes, judicial interpretations of these statutes,

and legislative acquiescence in the judicial interpretations. See Brian C. v. Ginger K., 92 Cal. Rptr.

2d 294, 298 (Ct. App. 2000). Both this court and the Tennessee Supreme Court had recognized the

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General Assembly’s authority to permit putative biological fathers of children born to married

women to establish their parentage but had concluded that the General Assembly had chosen not to

do so. See Evans v. Steelman, 970 S.W.2d at 434; Cunningham v. Golden, 652 S.W.2d at 911, 913.

In 1997, the General Assembly exercised its prerogative to repeal the former paternity and

legitimation statutes and to replace them with the current parentage statutes. These new statutes

mark a watershed in this state’s recognition of the right of putative biological fathers to establish

their parentage notwithstanding the marital status of the child’s mother.

Great changes in our society’s social structure had occurred by the time the General

Assembly revisited the matter of the rights of biological fathers to establish the parentage of their

children. Among these changes were (1) the increasing number of children born to unmarried

women, (2) the increasing rate of divorce, (3) the increasing number of children living in households

in which one or both of their biological parents are absent, and (4) the increasing awareness of the

reality of extra-marital sexual conduct by both men and women. During the same period, minimally

invasive scientific tests had been developed to reliably determine a child’s parentage. The courts

had also recognized the rights of biological fathers who desire to shoulder their parental

responsibilities, and both the federal government and the states had stepped up their efforts to require

biological fathers, whether married to the child’s mother or not, to fulfill their obligation to support

their children financially.

In no sense did the General Assembly retreat from its expressed policy favoring the

importance of the traditional family unit. However, in 1997 and in practical recognition of modern

realities, the General Assembly unambiguously disavowed Cunningham v. Golden, thereby signaling

that it no longer acquiesced in the courts’ deference to the ancient presumption of marital parentage.

Tenn. Code Ann. § 36-2-304(c) explicitly abolishes this presumption. In its place, the General

Assembly recognized five rebuttable parentage presumptions. Two of these presumptions are the

presumption of parentage arising from a man’s marriage to a child’s mother at the time of

conception, see Tenn. Code Ann. § 36-2-304(a)(1), and the presumption of parentage arising from

a genetic test showing a statistical probability of 95% or more that a particular man is a child’s

biological father. See Tenn. Code Ann. § 36-2-304(a)(5).13 In addition, Tenn. Code Ann. § 36-2-

305(b)(1)(C) permits any man claiming to be a child’s father to file suit to establish parentage

without reference to the marital status of the child’s mother.

D.

Like the courts that decided Evans v. Steelman and Cunningham v. Golden, the courts in

other jurisdictions have recognized that balancing the competing interests when a child’s paternity

is disputed is essentially a legislative prerogative. Thus, when legislatures recognized a conclusive

13

The parentage statutes, at least implicitly, permit more than one person to claim parentage of a child. See

Tenn. Code Ann. § 36-2-305(b)(2) (stating that “several men may be named as the father”). These persons may claim

the benefit of o ne or m ore of the presum ptions in Tenn. Code An n. § 36-2-30 4(a). Regrettably, the p arentage statutes,

unlike the Uniform Parentage Act, do not provide direction for resolving disputes when two men claim parentage of

the same child base d upon different p resump tions. See Uniform Parentage A ct § 4(b), 9B U.L.A. 299 (198 7).

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presumption of parentage stemming from a man’s marriage to a child’s mother, the courts noted that

they were essentially making a public policy statement that the scales should be balanced in favor

of preserving the integrity of the family unit. See Vincent B. v. Joan R., 179 Cal. Rptr. 9, 10 (Ct.

App. 1981). They likewise noted that a legislature may give greater weight to the interests of

biological fathers if it desires to do so. See Michael H. v. Gerald D., 491 U.S. 110, 128-30, 109 S.

Ct. 2333, 2345-46 (1989); K.S. v. R.S., 669 N.E.2d 399, 404 (Ind. 1996) (holding that states may

regulate a putative father’s interests through properly drawn statutes); David V.R. v. Wanda J.D., 907

P.2d 1025, 1028 (Okla. 1995) (deferring to the presumption established by the legislature); In re

J.W.T., 872 S.W.2d 189, 202 (Tex. 1994) (Cornyn, J., dissenting) (noting that the legislature could

choose to protect the marital family over the rights of the biological father). A great majority of

states now give all biological fathers the right to establish their parentage by rebutting the

presumption that a child born to a married woman is the child of the woman’s husband. See

Weidenbacher v. Duclos, 661 A.2d 988, 999 (Conn. 1995).

The husband of a child’s mother at conception or birth presumptively has interests in his

relationship with the child that are entitled to constitutional protection. While the Tennessee

Constitution does not require that the relationship be placed beyond any sort of government control,

it does require that the State have a compelling interest for intruding into the otherwise private

domain of the parent-child relationship. We have identified five substantial interests that support

providing a procedure for assuring the timely and accurate resolution of parentage disputes. First,

the State has an interest in eliminating uncertainty and confusion regarding a child’s parentage.

Second, the State has an interest in enforcing a biological father’s obligation to support his children

in order to prevent them from entering the welfare rolls. Third, the State has a responsibility to

eliminate disparate treatment between marital and non-marital children. Fourth, the State has an

interest in protecting the interests of biological fathers who have made, or are prepared to make, a

substantial personal investment in their relationship with their children. Finally, the State has an

interest in enabling children to ascertain the identity of their biological parents for medical or other

health reasons. Accordingly, we find that the State has compelling interests that justify establishing

a procedure for resolving parentage disputes and for making this procedure available to not only the

child and the child’s mother and her husband, but also to any man claiming to be the child’s

biological father.

We must still decide, however, what elements must be included in a statutory procedure for

resolving parentage disputes in order to assure that the interests of persons like Mr. Crawford are

protected. There are two essential ingredients. First, the procedure must comply with minimum

procedural due process requirements which include adequate notice, an opportunity to present

evidence, and a decision based on the evidence by an impartial trier-of-fact. Second, the procedure

should enable the trier-of-fact to consider the level of commitment to parenthood that the

presumptive father or fathers have demonstrated. Accordingly, courts called upon to resolve

parentage disputes should be able to take into consideration: (1) the stability of the child’s current

family environment, (2) the existence of an on-going family unit, (3) the source or sources of the

child’s support, (4) the child’s relationship with the presumptive father, and (4) the child’s physical,

mental, and emotional needs. See Turner v. Whisted, 607 A.2d 935, 940 (Md. 1992).

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Tennessee’s 1997 parentage statutes, as amended, contain these necessary elements. We

have concluded that they do not impermissibly interfere with familial privacy interests, see Finnerty

v. Boyett, 469 So. 2d 287, 292 (La. Ct. App. 1985), or with the rights and interests of a husband of

a woman whose child’s parentage is disputed. Accordingly, we find that the 1997 parentage statutes

are constitutional on their face.

E.

Even though we have upheld the facial constitutionality of the 1997 parentage statutes, we

must still determine whether these statutes were constitutionally applied to Mr. Crawford. Mr.

Crawford has not taken issue with the procedural aspects of the proceedings below. Accordingly,

the only remaining issue is whether the juvenile court based its conclusion that Mr. Cihlar was

Sean’s biological father on the proper factors. We have determined that the record overwhelmingly

supports the juvenile court’s decision that Mr. Cihlar is Sean’s biological father.

This case is, in reality, a dispute between two men who are presumptively Sean’s father. Mr.

Crawford is presumptively the boy’s father because he was married to Sean’s mother both when the

boy was conceived and when he was born. See Tenn. Code Ann. § 36-2-304(a)(1). But Mr. Cihlar

is also presumptively Sean’s father because genetic testing has confirmed his parentage by a

probability factor of 99.98%. See Tenn. Code Ann. § 36-2-304(a)(5). In addition to the genetic

proof, the parties’ conduct since December 1990 indicates that each of them, including Sean himself,

have known that Mr. Cihlar is Sean’s biological father. Mr. Cihlar has thus presented evidence to

rebut the presumption of Mr. Crawford’s parentage by far more than the preponderance of the

evidence required by Tenn. Code Ann. § 36-2-304(b)(3). There can be no reasonable doubt that Mr.

Cihlar is Sean’s biological father.

In addition to being supported by the overwhelming weight of the evidence, the conclusion

that Mr. Cihlar is Sean’s biological father is supported by weighty policy considerations. As far as

this record shows, Sean has never been part of a traditional family unit. He was conceived and born

while his mother and her husband were separated. Even though his mother and her husband reunited

from February 1992 until September 1993, they have since separated again. Even though the

Crawfords apparently have no immediate plans to divorce, Ms. Crawford has entered a relationship

with yet another man. Mr. Crawford has known that Sean was not his child since the boy was born.

There is little evidence in the record that he has contributed significantly to Sean’s support or that

he has made efforts to establish a substantial relationship with the child. Under these facts, the

State’s interests in protecting the Crawford family or Mr. Crawford’s relationship with Sean are

extremely weak.

In circumstances such as this one, a parent’s interest and ability to provide a child monetary

and parental support are relevant. See In re Paternity of B.J.H., 573 N.W.2d 99, 104 (Minn. Ct. App.

1998). The weight of the evidence again overwhelmingly favors Mr. Cihlar. While Mr. Crawford’s

efforts or desire to provide any sort of support to Sean are unclear, Mr. Cihlar’s on-going efforts to

be Sean’s father are clear and sustained. Even before the child was born, Mr. Cihlar demonstrated

his willingness to accept his parental responsibilities. After the child was born, Mr. Cihlar

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consistently supplied monetary support and took advantage of every opportunity to develop a

relationship with Sean. As a result of Mr. Cihlar’s efforts, Sean treats him as his father.

Rather than severing an existing parental relationship, the order finding Mr. Cihlar to be

Sean’s biological father simply confirms and gives legal effect to a relationship known to all the

parties. Accordingly, the juvenile court’s order declaring Mr. Cihlar to be Sean’s biological father

simply provides legal substance to a relationship that has existed throughout the boy’s life. Under

these facts, determining that Mr. Cihlar’s parentage claims are weightier than Mr. Crawford’s does

not impermissibly interfere with any rights Mr. Crawford may have stemming from his marriage to

Ms. Crawford.

III.

THE RETROSPECTIVE APPLICATION OF THE PARENTING STATUTES

As a final issue, Mr. Crawford asserts that permitting Mr. Cihlar to establish his parentage

under the 1997 parentage statutes, as amended, violates Tenn. Const. art. I, § 20's prohibition of

retrospective laws that impair vested rights. Even though the parentage statutes create a new remedy

for Mr. Cihlar that did not exist prior to 1997, we have determined that the statutes do not impair Mr.

Crawford’s vested rights. Mr. Crawford does not have a vested right in preventing Mr. Cihlar from

establishing that he is Sean’s biological father.

Tenn. Const. art. I, § 20 prohibits the General Assembly from enacting retrospective laws or

laws that impair contractual obligations. The Tennessee Supreme Court has characterized a

retrospective law as one that takes away or impairs vested rights acquired under existing laws. See

Morris v. Gross, 572 S.W.2d 902, 907 (Tenn. 1978); Miller v. Sohns, 225 Tenn. 158, 162-63, 464

S.W.2d 824, 826 (1971). Although the characteristics of vested rights elude precise definition, the

court views a vested right as one “which it is proper for the state to recognize and protect and of

which the individual could not be deprived without injustice.” Morris v. Gross, 572 S.W.2d at 905.

It also adopted a multi-factor analysis for identifying vested rights that includes consideration of the

following factors: (1) whether the public interest is advantaged or retarded by the challenged statute,

(2) whether the challenged statute gives effect to or defeats the affected person’s bona fide intentions

or reasonable expectations, and (3) whether the statute surprises persons who have long relied on a

contrary state of the law. See Doe v. Sundquist, 2 S.W.3d 919, 924 (Tenn. 1999).

To decide this issue, we must first ascertain the nature of the vested right Mr. Crawford is

claiming. He is not asserting a right akin to a statute of limitations defense to a cause of action for

which the applicable statute of limitations has already expired.14 Nor is he claiming some sort of

interest in an earlier judicial determination that Mr. Crawford is Sean’s biological father because no

14

This circumstance clearly implicates a vested right. See Wy att v. A-Best Prods. Co., 924 S.W.2d 98, 103-04

(Tenn. Ct. App. 1995).

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court has addressed the merits of that issue.15 Mr. Crawford appears to be asserting that he had some

sort of reasonable expectation that Mr. Cihlar will forever be procedurally unable to obtain a judicial

declaration that he is Sean’s biological father. Any such expectation, if in fact Mr. Crawford has it,

is unreasonable.

Mr. Crawford has known that he is not Sean’s biological father since the day the child was

born. The record contains no evidence that he undertook to support Sean or to establish a parenting

relationship with him in reliance on the assumption that he was Sean’s father. To the contrary, this

record indicates that Mr. Crawford knowingly permitted Mr. Cihlar to support Sean financially and

that Mr. Crawford eventually turned his back on Ms. Crawford and Sean in September 1993 when

he and Ms. Crawford separated for the second and final time. There is likewise no evidence in the

record that the Tennessee Supreme Court’s 1998 decision caused Mr. Crawford to alter his

relationship with Sean.

All the factors identified by the Tennessee Supreme Court in Doe v. Sundquist militate

against Mr. Crawford’s Tenn. Const. art. I, § 20 claim. The public’s interests were advanced by the

enactment of the 1997 parentage statutes. Providing a new remedy to biological fathers like Mr.

Cihlar did not impair any reasonable expectation by Mr. Crawford that his claim to be Sean’s father

would remain undisturbed nor destroy any previous adjudication that Mr. Crawford was Sean’s

biological father. Likewise, the enactment of the 1997 parentage statutes and the filing of Mr.

Cihlar’s parentage petition did not have the effect of increasing Mr. Crawford’s obligations. To the

contrary, Mr. Cihlar’s pursuit of a declaration of parentage will eliminate any legal obligation that

Mr. Crawford might have had to support Sean. Accordingly, we find no Tenn. Const. art. I, § 20

violation in permitting Mr. Cihlar to file a petition under the new parentage statutes to establish that

he is Sean’s biological father with all the accompanying rights and obligations.

IV.

We affirm the juvenile court judgment determining that Mr. Cihlar is Sean’s biological father

and establishing Mr. Cihlar’s parental rights and obligations in accordance with Tenn. Code Ann.

§§ 36-2-311 through -313. We remand the case to the juvenile court for whatever further

proceedings may be required and we tax the costs of this appeal to Ronald Shane Crawford for which

execution, if necessary, may issue.

__________________________________

WILLIAM C. KOCH, JR., JUDGE

15

The Tennessee Supreme Court upheld this court’s reversal of the earlier finding by the circuit court that Mr.

Cihlar was Sean’s biological father. The effect of reversing and dismissing Mr. Cihlar’s earlier legitimation claim was

to vacate the circuit court’s parentage determination.

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