02/09 Family Law Question

Fourteen years ago, Mom and Dad had a brief romance while Dad was on vacation in State A, where Mom lived. Nine months after Dad returned to his home in State B, Mom telephoned Dad. Mom told Dad that she had just given birth to Child and that Dad was Child’s father. Mom also told Dad that, if he would agree to waive his right to establish his paternity of Child, she would sign a release waiving all rights to seek child support from him. Dad agreed to Mom’s proposal, and they signed a written contract containing the terms outlined by Mom.

Mom is a college graduate and had an excellent job when Child was born. However, she has developed a chronic disease and is no longer able to fully provide for herself and Child, now age 14.

Mom brought an action against Dad in State A seeking to establish his paternity of Child and obtain child support, claiming that the contract waiving her right to child support is unenforceable. She served Dad by registered mail in State B, where he has continued to live since Child’s birth. Dad has not visited State A since his vacation there more than 14 years ago and has never met Child.

State A’s long-arm statute provides that a court has personal jurisdiction over an alleged parent for purposes of determining paternity and support obligations if the alleged parent "engaged in sexual intercourse in this state and the child may have been conceived by that act of intercourse."

Dad moved to dismiss Mom’s petition on the ground that the State A court’s assertion of personal jurisdiction over him to determine paternity and child support would violate due process requirements. The trial court denied the motion, and Dad entered a special appearance, preserving his right to appeal on the jurisdictional claim.

On the merits, Dad argues that the contract he and Mom made shortly after Child’s birth should be enforced. In the event that the court declines to enforce the contract, Dad argues that the equities of the case require that the value of any child support awarded to Mom be calculated based on state public-assistance benefit levels or, in the alternative, that he be awarded custody of Child. Dad also seeks liberal visitation with Child in the event that the court awards custody to Mom.

1. Was the court’s assertion of personal jurisdiction over Dad to determine Dad’s paternity and support obligations consistent with due process requirements? Explain.

2. Assuming the court has personal jurisdiction over Dad, how should the court rule on the child support, custody, and visitation issues? Explain.