How “Open” Is “Openly”?

Normally, paternity issues are hashed out in contested adoption, paternity or dependency cases.  Yesterday’s opinion in Stennett v. Britel, G049161, sheds light on a little known corner of the Probate Code dealing with similar questions.  Although apparently-wealthy Amine Britel had fathered A.S. (born in 2001),  he did not want to be a father because he felt fathering a child out of wedlock would shame him, (although abandoning any semblance of parental responsibility seemingly would not cause any similar shame).  Mother, Stennett, apparently was content with this situation for years, never seeking support or a paternity determination, although contacting him in response to the child’s inquiries in 2006, only to be rebuffed, but still doing nothing to establish paternity or obtain support.

This changed in 2011 when Amine was killed while bicycling, dying intestate and prompting Stennett to seek to have A.S. declared Amine’s heir, which was rejected by the trial court after a finding Amine did not “opening hold out the child as his own” as required by Probate Code section 6453(b)(2).   The Court of Appeal affirmed, sorting through several dictionary definitions and very few case authorities to conclude “openly” holding out a child as one’s own required something more than passing acknowledgment.  Central to the Court’s decision was the Legislative intent that probate matters be resolved promptly and the decedent’s intent be carried out.  This is different from portions of the Family Code and case law in which the Legislative intent is to ensure provision for a child’s care.  Since a parent may disinherit a child, it is not unreasonable to conclude that a biological father who never has announced to all the world that he is the father, never intended a portion of his estate pass to that child.

While the Court’s ruling appears correct, it does seem a poor result in our modern age where, as here, DNA demonstrated without any doubt Amine was the father, and the child is still a minor, presumably with some need for support.  Justice Fybel recognizes this in his concurrence calling for Legislative action.  Moreover, there is room for disagreement in parsing the dictionary definitions and a decent Equal Protection argument.  We will see if this case piques the Supreme Court’s interest it certainly should.  Although mother Stennett can be charged with sleeping on her rights, certainly minor A.S. cannot, and it is A.S. who ultimately is injured.

Practically, however, the case is yet another example of the misguided desire to give “space” in the belief folks “will come around.”  Sometimes they just don’t. So, moms, get ye to the courthouse and file that paternity action, for your child’s sake if not for your own.