Hinshaw v. Hinshaw, __ S.W.3d __ (Ky. App. 2006), 2006 WL 2519221 (Ky. App.)
This is Hinshaw #1, motion for discretionary review pending.
Issues and Holdings:
1) Whether the former husband could have custody rights to former wife’s child even though he was not the child’s biological father. The Court held yes, the former husband had such rights.
2) Whether the doctrine of equitable estoppel could be applied to prevent the former wife from arguing that the former husband was not the father. The Court held yes, the doctrine applied since the former husband relied on the former wife’s misrepresentations of his paternity to his detriment.
3) Whether the record supported the award of attorney fees to the former husband. The Court held yes, the record supported the award.
The parties were married in December 1988. One child was born in the marriage in June 1999. The former husband was present in the delivery room and cut the umbilical cord, and the birth certificate lists the former husband as the father. The former wife filed for divorce in January 2003 and stated in her petition that the parties were the parents of the child. Later, she amended her petition and alleged that the former husband was not the father and requested a court-ordered DNA test to prove it.
The DNA test indicated that the former husband was not the father. The former wife then filed another amended petition, naming a third party as the father and asking the court to deny the former husband custody rights to the child.
The court ordered a custodial evaluation, which showed a strong father-son relationship existed. Evaluator opined that child would be devastated if father was not in his life. The former wife never revealed that the former husband was not the biological father of the child until after filing for divorce. Moreover, she always encouraged the strong father-son relationship.
The court found that equitable estoppel applied to prevent the former wife from challenging the father’s custody rights based on the DNA test. The court found the former husband was the child’s legal father and therefore ordered the parties to share joint custody, with the former husband being the primary residential custodian. The court also ordered the mother to pay $25,000 of the former husband’s attorney’s fees. The mother appealed.
On appeal, the former wife argued that the court erred in applying KRS 406.011 and KRS 406.111. She claims that since the DNA test results conclusively rebut the presumption of paternity, the former husband should not stand on equal footing with her in a custody dispute. The Court began by noting that her argument ignores the fact that the case is not about paternity, but about custody between husband and wife. The fact that the former husband is not the biological father of the child does not preclude his custody rights.
Next, the former wife argued that the lower court erred in applying equitable estoppel. Relying on the analysis in Pettinato v. Pettinato, 582 A.2d 909 (R.I. 1990), the Court held that the trial court did not err in considering the doctrine of equitable estoppel. Further, the Court held that the lower court did not err in its application of the doctrine. Because the former wife withheld the truth about the former husband’s relationship with the child, she prevented him from seeking legal advice about his obligations to the child and/or seeking to terminate the biological father’s rights to the child and legally adopting the child as his own. The former husband relied on the mother’s misrepresentations to his detriment.
Finally, the Court held that the award of attorney fees is entirely within the discretion of the trial court. Since the former wife earned a substantially higher income than the former husband and currently experienced a higher standard of living than before, the Court found that the lower court did not abuse its discretion in awarding fees.