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DNA card pulled in competing wrongful death suits

 

It has gotta be a kick in the gut to learn that the boy you raised is not your real son.

To learn that fact in a lawsuit over the boy’s death is the stuff of Greek tragedy.

This tale begins in typically sad fashion: A drunk driver killed Michael Thompson as he rode his bicycle along the Pacific Coast Highway in California.

Michael’s dad, Russel Thompson, filed a wrongful death suit against the driver, the vehicle’s owner, and the City of Dana Point. (Michael’s mother had died after she and Russel divorced.)

Michael’s half-sister, Rhonda Scott, had other ideas and thought she had a family secret that would place her in the catbird seat.

Rhonda filed her own wrongful death suit, adding a claim to rebut Russel’s status as Michael’s presumed father.

You bet Rhonda knew the family secrets. She obtained a court order for DNA testing which revealed that Russel was not Michael’s biological father.

Yes, even though Michael was born during Russel’s marriage to Michael’s mother, and even though Russel had raised Michael as his son for six or seven years until his marriage broke up, some other guy had fathered the boy.

So that fact killed Russel’s standing to bring his wrongful death suit, right?

Not so fast.

As it turns out, Rhonda is on the outside looking in.

Orange County Superior Court Judge Geoffrey Glass granted a summary judgment to Russel nixing Rhonda’s claim.

Glass declared that “even if [Russel] is not the biological father of Michael Thompson – and that’s what the DNA showed – he is presumed to be the father by virtue of what happened after the birth and therefore he is entitled to have the rights of a father.”

Wednesday, the California Court of Appeal affirmed Russel’s standing to sue for the wrongful death of Michael.

The court concluded that, under state law, it was Rhonda who lacked standing to challenge Russel’s status as Michael’s presumed father.

The court looked to §7630 of California Uniform Parentage Act (UPA) to decide the issue.

“Section 7630(a) vests standing to determine paternity under the marital presumption in a ‘child, the child’s natural mother, a man presumed to be the child’s father … , an adoption agency to whom the child has been relinquished, or a prospective adoptive parent of the child’ to challenge presumed fatherhood established under section 7611(a)’s marital presumption. …

“[Rhonda] does not fall within any of these categories,” the court said.

Apart from not fitting into one of the statutory categories for contesting paternity, the court also found that Rhonda’s challenge to Russel’s fatherhood was time-barred.

You see, state law limits a person’s right to bring such challenges to “a reasonable time after obtaining knowledge of relevant facts.” 

In Rhonda’s case, the court observed that while she “hints in her briefs that she, Michael, and his family knew during Michael’s childhood that [Russel] was not Michael’s birth father, [Rhonda] fails to explain how her present challenge falls within [the statute's] time limitation.”

Wrapping it up, the court said that “because the wrongful death statute incorporates the Probate Code’s intestacy chain of succession to determine proper plaintiffs, and the intestacy statutes in turn incorporate the UPA to determine presumed fatherhood, and [Rhonda] has no standing under the UPA to deny or rebut that [Russel] is Michael’s presumed father, her action for a declaratory judgment rejecting [Russel's] paternity fails as a matter of law.” (Scott v. Thompson)

- Pat Murphy

patrick.murphy@lawyersusaonline.com

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