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In re Welfare of C. F. N. A. S.

Court of Appeals of Minnesota

December 31, 2018

In re the Welfare of: C. F. N. A. S., petitioner, Respondent,
K. C.-W. n/k/a K. N., et al., Appellants.

          Olmsted County District Court File No. 55-FA-16-979

          Thomas R. Braun, Brenton M. Tunis, Restovich Braun & Associates, Rochester, Minnesota (for respondent)

          Susan A. Daudelin, Henschel Moberg, P.A., Minneapolis, Minnesota (for appellants) Jill I. Frieders, O'Brien & Wolf, L.L.P., Rochester, Minnesota (for guardian ad litem)

          Considered and decided by Ross, Presiding Judge; Johnson, Judge; and Tracy M. Smith, Judge.


         If one man has executed a recognition of parentage of a child, see Minn. Stat. § 257.75 (2018), and another man seeks to establish that he is the legal father of the child on the ground that he is the child's biological father, the second man may commence and maintain a paternity action under the Minnesota Parentage Act, Minn. Stat. §§ 257.51-.74 (2018), without seeking or obtaining a vacatur of the recognition of parentage.


          JOHNSON, JUDGE

         This is a parentage action to determine who is the father of a four-year-old boy. One man, who signed a recognition of parentage, was presumed to be the father because he was living with the boy's mother when the boy was born and represented to others that he was the boy's father. Another man was presumed to be the father because genetic testing showed that he is the boy's biological father. The district court resolved the competing presumptions of paternity by concluding that the biological father should be adjudicated the child's legal father. The district court also awarded the biological father and the mother joint legal custody. The mother and the other presumed father appeal. For the reasons stated below, we affirm.


         In August 2013, K.N. learned that she was pregnant. The district court found that K.N. knew that she had become pregnant because of sexual intercourse with A.S. At that time, she was married to but separated from K.W. In addition, she was sharing a home with J.N., who had been a friend and a business partner and later became her intimate partner, and in January 2017, her husband. As their relationship progressed in 2013, K.N. and J.N. decided to raise the child together after K.N. gave birth.

         In April 2014, K.N. gave birth to a baby boy, C.F.N. At the hospital, K.N. and J.N. signed a recognition of parentage (ROP), in which they stated under oath that they are the biological parents of C.F.N. Soon thereafter, K.W. executed a voluntary statement of nonpaternity, which was filed with the state registrar along with the ROP. K.N.'s marriage to K.W. was dissolved in December 2015.

         In January 2016, when C.F.N. was two years old, A.S. received a message via social media from a person he did not know stating that A.S. likely is the biological father of K.N.'s child. Before receiving that message, A.S. was aware that K.N. had a young child but did not know the age of the child and assumed that J.N. was the child's father and, thus, had no reason to believe that he might be the biological father of the child. A.S.'s mother and sister attempted to communicate with K.N. about the child on A.S.'s behalf, but K.N. refused to engage in such communications.

         In February 2016, A.S. commenced this paternity action. He alleged that he is the biological father of C.F.N. and sought an order adjudicating him as the boy's legal father. He also sought an award of sole legal custody and sole physical custody of C.F.N. He named K.N. as the sole respondent.

         In March 2016, the district court held an initial hearing. A.S. requested an order authorizing genetic testing. K.N. voluntarily agreed to genetic testing, which made it unnecessary for the district court to rule on A.S.'s request. The genetic test determined that, based on certain unchallenged assumptions, the probability of A.S.'s paternity is 99.99999999 percent.

         In June 2016, A.S. moved to vacate the ROP that had been executed by K.N. and J.N. Meanwhile, K.N. and J.N. separately moved to dismiss A.S.'s paternity action on the grounds that A.S. did not join J.N. and that A.S. did not have standing to commence or maintain the action. In the alternative, J.N. moved to intervene. After a hearing on the motions, the district court filed an order in November 2016 in which it denied the motions to dismiss and granted J.N.'s motion to intervene. In January 2017, the district court filed an order in which it appointed a guardian ad litem "to advocate for the best interests of the . . . minor child." In February 2017, the district court formally joined C.F.N. as a party and appointed a different guardian ad litem.

         The case was tried to a referee on two days in April 2017. A.S. testified that he and K.N. were in a romantic relationship from June 2013 until August 10, 2013, when they agreed to terminate their relationship. He testified that they voluntarily had sexual intercourse approximately 20 times during that time period. A.S. called two additional witnesses, his mother and his sister, who testified about their knowledge of his relationship with K.N. and A.S.'s ability and willingness to be a father. K.N. testified that she saw A.S. only six or seven times in the summer of 2013 and that she did not have a romantic or intimate relationship with him. She testified that they had sexual contact on only one occasion, on July 27, 2013, but that it was not consensual. The district court found that K.N.' s testimony was not credible. J.N. testified that he knew that he was not the biological father of C.F.N. when he signed the ROP. K.N. and J.N. also called J.N.'s step-mother and K.W.'s mother as witnesses to testify about their knowledge of C.F.N.'s paternity and K.N.'s and J.N.'s parenting abilities. A.S. called two rebuttal witnesses. His roommate in the summer of 2013 testified that A.S. and K.N. appeared to be in an intimate relationship and that K.N. spent the night with A.S. at their apartment approximately 15 times. A mutual acquaintance testified that K.N. told her in August 2013 that she had become pregnant because of sexual intercourse with A.S. but that she was not going to tell him about the pregnancy.[1] The guardian ad litem testified that J.N. should be adjudicated the father of C.F.N. and that A.S. should be introduced to C.F.N. at a later date, after consultation with a therapist.

         In July 2017, the referee issued a 39-page order with findings of fact, conclusions of law, a recommended order, and a memorandum. The referee recommended that A.S. be adjudicated the legal father of C.F.N., that C.F.N.'s birth certificate be changed to reflect that A.S. is the father, that K.N. and A.S. be awarded joint legal custody, and that K.N. be awarded temporary sole physical custody. The referee's recommendation also stated, "This order has the effect of vacating the Recognition of Parentage signed by Mother and [J.N.]." The referee's analysis was reflected primarily in the memorandum. The referee reviewed the law governing competing presumptions of paternity, applied the statutory best-interests factors, and discussed additional policy considerations, such as A.S.'s biological connection to C.F.N., the relevance of K.N.'s relationships with her former husband and her present husband, and the fact that K.N. and J.N. signed the ROP despite knowing that J.N. was not the biological father. The referee concluded that "the weightier considerations of logic and policy require that Petitioner be adjudicated the legal father of C.F.N." A district court judge approved the recommendation, and judgment was entered. K.N. and J.N. appeal and raise multiple issues.


         I. Did the district court err by ruling that A.S. had standing to commence and maintain this paternity action?

         II. Did the district court err in its analysis of the applicable statutes and in its conclusion that A.S. should be adjudicated the legal father of C.F.N.?

         III. Did the district court err by awarding joint legal custody of the child to K.N. and A.S.?

         IV. Did the district court commit reversible error by not joining J.N. and C.F.N. as parties at an earlier stage of pre-trial proceedings and by not joining K.W.?


         This appeal arises under the Minnesota Parentage Act (MPA), which spans 26 sections of the Minnesota Statutes. See ...

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