2007-844, IN THE MATTER OF KEVIN GENDRON & JODY PLAISTEK

The petitioner and putative father, Kevin Gendron, brings

the brief and orally), for the respondent. Basbanes & Chenelle, of Groton, Massachusetts (Kevin A. Chenelle on to press. Errors may be reported by E-mail at the following address: Saben on the brief and orally), for the petitioner. Phillips, Gerstein & Channen, LLP, of Haverhill, Massachusetts (Lynne A.

page is: http://www.courts.state.nh.us/supreme.

IN THE MATTER OF KEVIN GENDRON AND JODY PLAISTEK

editorial errors in order that corrections may be made before the opinion goes No. 2007-844 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Derry Family Division Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as who deserves closure on this issue. He needs to know

p. 2 whatever the results might be. [The child] is the one

certificate and acknowledgement were subsequently filed in Lawrence City Hall.

possible so the parties can try to move forward child] is to have this matter resolved as quickly as best interests of the child. The best interest of [the

father to submit to genetic marker testing. 2 post-hearing motion. On September 17, 2007, the trial court ordered the acknowledgment, and, on September 6, 2007, submitted it to the court in a

acknowledgement of paternity.” Pursuant to Massachusetts law, the birth

not dispute that the child has developed a paternal relationship with the father.

The purpose of the statute, NH RSA 461-A is about the

denied the father’s motion for reconsideration, explaining: certificate, but not the acknowledgement. The father later located the testing [had] already [been] ordered.” On October 31, 2007, the trial court post-hearing motion to accept the acknowledgement because “[p]aternity

indicated that they understood “the process for rescinding (canceling) th[e] to give full faith and credit to that determination of paternity. same binding effect as a court judgment of paternity.” The parties further certificate”; and the acknowledgment constituted “a legal document with the the court order DNA testing to establish paternity. The mother, however, did

of the Parenting statute must also be given weight. be given some weight, the court finds that the purpose While the court finds that the [acknowledgement] must

parenting petition. At the hearing, the father submitted the child’s birth A:2, II (Supp. 2007). On October 3, 2007, the trial court denied the father’s

signed and filed the acknowledgement, and that New Hampshire was required argued that paternity was established in Massachusetts when the parties certificate[;] the names of both par[ties] w[ould] be on the child’s birth asserted that the father is not the child’s biological father, and requested that On September 27, 2007, the father moved for reconsideration. He parenting petition seeking custody of the child. In response, the mother obtained a domestic violence order against the mother. He also filed a

On August 31, 2007, the court held a temporary hearing on the

“underst[oo]d that th[e] acknowledgement w[ould] be filed with the child’s birth acknowledgment to establish the child’s paternity.” In so doing, they as the child’s father. Both parties affirmed that they “voluntarily sign[ed] th[e] The parties lived together until June 2007. At that time, the father

See Mass. Gen. Laws ch. 209C, §§ 2, 11(a) (2007).

parents of” the child. The acknowledgement specifically names Kevin Gendron (acknowledgement), in which they “acknowledge[d] that [they] are the biological p. 3 Hampshire. statutory rescission period, a challenge to an affidavit of paternity filed in New which allows a court of competent jurisdiction to decide, after the sixty-day

may challenge that presumption pursuant to RSA 5-C:28, III (Supp. 2007),

what extent that presumption may be challenged. The mother asserts that she

acknowledgment in resolving this appeal.

paternity, and that New Hampshire law applies in determining whether and to not produce a final judgment, but created only a rebuttable presumption of 522:1. The application of a statute presents a question of law, which we review acknowledgement is part of the record, the mother claims that its signing did testing. Resolution of this issue requires us to apply RSA 168-A:2 and RSA

(Emphases added.) If paternity has been established in that manner, the acknowledgement of paternity, or by operation of another state’s law.” established by court or administrative order, through voluntary acknowledgement, but gave it “some weight.” Accordingly, we will consider the and credit to a determination of paternity made by another state, whether RSA 168-A:2, II provides: “The courts of this state shall give full faith

de novo. ElderTrust of Fla. v. Town of Epsom, 154 N.H. 693, 696 (2007).

court did not allow its late submission. Second, assuming the marker testing. We now address whether the trial court properly ordered genetic marker father, the mother maintains that the trial court properly ordered genetic in the proceedings in the trial court” (emphasis added)). the record on appeal shall include all “papers and exhibits filed and considered

later motion for reconsideration, the trial court not only considered the hearing motion to accept the acknowledgement, in ruling upon the father’s part of the record. Although the trial court initially denied the father’s post- We first reject the mother’s contention that the acknowledgement is not

because the father did not submit it at the temporary hearing and the trial the acknowledgement and, specifically, whether the father is the child’s natural

See also RSA 5-C:24 (Supp. 2007). Thus, because she challenged mother should be equitably estopped from contesting paternity.

years to come. inevitably be an undercurrent of their relationship for

The mother first argues that we cannot consider the acknowledgement

mother from challenging paternity. Alternatively, the father contends that the that determination. He asserts that the doctrine of res judicata now bars the Massachusetts, and that New Hampshire must afford full faith and credit to On appeal, the father argues that paternity was established in

lingering issue between [the parties] which will who his parents are and not be plagued with the understood when she signed it, the acknowledgment now has the same force

p. 4 paternity was established on December 30, 2004, and, as the mother

county where the child lives.” acknowledgment within the delineated time periods. Accordingly, the father’s lives in the same county as the child, then such complaint shall be filed in the Despite this understanding, the mother never rescinded nor challenged the understood the process for rescinding and challenging the acknowledgement.

agreement at some later time.”

which the child and one of the parents resides,” but “[i]f neither of the parents the acknowledgement. The mother further affirmed that she read and

accepted that the father is the child’s

a voluntary signatory to a paternity agreement to challenge the validity of that

acknowledgment, file a petition in the probate and family court in the county in Gen. Laws ch. 209C, § 5(b) (2007), she did not seek such testing before signing presumably had notice that genetic marker testing was available, see Mass. foregoing provisions, “no judicial proceeding shall be required or biological father. Even though she By signing the acknowledgement, the mother, by her own volition,

(Mass. 2001).

legislature’s “clear intention [in enacting this statute was] to limit the ability of Gen. Laws ch. 209C, § 11(a) (emphases added). The Massachusetts respect to the child without further proceedings to establish paternity.” Mass. acknowledgment, a party must, “within 60 days of signing the as a sufficient basis for seeking an order of support, visitation or custody with ratify [the] acknowledgement,” and the acknowledgement “shall be recognized

If the acknowledgement has not been challenged in accordance with the

pertaining to venue, not jurisdiction). (Mass. 1987) (interpreting similar statutory language in same chapter as mother and shall have the same force and effect as a

the child’s birth. Under Massachusetts law, Mass. Gen. Laws ch. 209C, § 11(a) (emphases added). To rescind the

mistake of fact . . . . year only on the basis of fraud, duress or material judgment of paternity, subject to challenge within one

date it has been signed by such putative father and acknowledgment shall establish paternity as of the within 60 days of the date of signing . . . , the Unless either signatory rescinds the acknowledgement

Here, both parties voluntarily signed the acknowledgement within days of

A:2, III. father’s liabilities, including necessary support, may be enforced. RSA 168acknowledgment.

p. 5 when Massachusetts provided her with no opportunity to rescind the

during oral argument, its decision. We generally decline to address issues raised for the first time 5

argument and then surprise opposing counsel with a new issue not previously

fundamentally unfair for us to give the acknowledgement full faith and credit

asserted it to the trial court, and the trial court did not consider it in reaching

appeal in a reply brief), because, otherwise “a party [could] wait until oral and credit, we conclude that paternity has been established in this case. 617-18 (1987) (court will not address an issue raised for the first time on has been signed and filed). Accordingly, giving the acknowledgement full faith time at oral argument); cf. Panas v. Harakis & K-Mart Corp., 129 N.H. 591, Hampshire, not Massachusetts. Thus, the mother argued that it would be (declining to reach merits of State’s harmless error argument raised for first petition for lack of jurisdiction because the child has always resided in New first time at oral argument); State v. Scovill, 144 N.H. 409, 414 (1999) rescission in Massachusetts, a Massachusetts court would have rejected her (2004) (declining to reach the merits of an argument raised by the appellee for

The mother did not present this argument in her brief. She also never

of a child, and not including instance where an acknowledgement of parentage

Mass. Gen. Laws ch. 209C, § 11(a). She asserted that, had she petitioned for did not create a presumption of paternity in Massachusetts, but, rather, filed in the probate and family court in the county where the child lives. See time period because Massachusetts law requires a petition for rescission to be effect” it has in Massachusetts, precluded from rescinding the acknowledgement within the statutory sixty-day For the first time at oral argument, the mother contended that she was

§ 6(a) (setting forth circumstances in which a man is presumed to be the father (“acknowledgement shall establish paternity”) with Mass. Gen. Laws ch. 209C, established paternity. Compare Mass. Gen. Laws ch. 209C, § 11(a)

(quotation omitted). Contrary to the mother’s assertion, the acknowledgement

168-A:2, II, we must give the acknowledgement “the same credit, validity and Gen. Laws ch. 209C, § 11(a) and 41 Am. Jur. 2d, supra § 42. Pursuant to RSA III (Supp. 2007) and Ely v. DeRosier, 123 N.H. 249, 251 (1983), with Mass. challenging the validity of the acknowledgement itself. Compare RSA 5-C:28, the father is not the child’s biological father, the mother alleges no facts Besides her assertion two and one-half years after the child’s birth that

acknowledged father all of the rights and duties of a parent.”). equivalent to an adjudication of paternity of a child and confers upon the (2005) (“A valid acknowledgement of paternity filed with the proper agency is ch. 209C, § 11(a); see also 41 Am. Jur. 2d Illegitimate Children § 42, at 2 p. 6 61 and effect as a Massachusetts court judgment of paternity. Mass. Gen. Laws 6

responsibility.” (citation omitted)). spouse from the belated resort to scientific proof in an effort to escape parental would contravene the policy of this State’s law to protect the child and the

request for custody.

paramount interests are certainty and finality.

without challenge for over fifteen years.”

of uninterrupted acquiescence, with several opportunities to raise the issue, upon whether genetic marker testing is “contested and relevant.” RSA 522:1, I. not depend upon the party seeking to reopen paternity, but depends instead Therefore, genetic marker testing was irrelevant to determining the father’s 772, 77 p. 6 6 (2002). Thus, whether genetic marker testing should be ordered does the oral presentation of the case.” Cf. In re Baby Girl P., 147 N.H. reaching a different result. Whether the mother or father is the petitioner, the paternity in this instance, the mother has proffered, and we see, no reason for blood tests because the “defendant ha[d] acknowledged the children as his own Although it is the mother who is attempting to disprove the father’s

to disprove paternity through blood tests.

permit the husband to raise the question of paternity after an eight-year period responsibilities.” Id.; see also McRae v. McRae, 115 N.H. 353, 355 (1975) (“To tests would be to ignore his lengthy, voluntary acceptance of parental paternity, thus dispensing with the need for additional proof of paternity. that “[t]o allow [the] defendant to escape liability for support by using blood that the parties and the court may be prepared to fully discuss them during

“in which paternity is a contested and We held that the presumption of paternity in that case could not be rebutted by

years later, relying upon an earlier version of RSA 522:1, the defendant sought two children as his own since their birth. Watts, 115 N.H. at 187. Over fifteen Watts, 115 N.H. 18 p. 6 6 (1975). There, the defendant father had acknowledged reach the merits of this argument. See id. Indeed, we reached a similar result in Watts v.

Here, the unchallenged acknowledgement established the father’s arguments known to the parties should appear at least once in the briefs so added).

and putative father are required to submit to such testing only in civil actions the motion of any party or upon its own initiative.” However, the mother, child, Under RSA 522:1, I(a), a “court may order genetic paternity testing upon

this new substantive question for the first time at oral argument, we do not

N.H. p. 7 723, 725 (2001) (quotation omitted). Thus, “all of the substantive the brief and waiting until oral argument to clarify it.” State v. Tucker, 145 fundamental unfairness in not adequately and fully presenting one’s position in addressed in that party’s brief,” Scovill, 144 N.H. at 414. “There is a 7

is not in fact his father.” (citations omitted)). trauma that may come from being told that the father he has known all his life

child, the child should not be required to suffer the potentially damaging

father’s estoppel argument.

testing.

BRODERICK, C.J., and DALIANIS, GALWAY and HICKS, JJ., concurred.

acknowledgement must be afforded full faith and credit, we do not reach the v. Pettinato, 582 A.2d 909, 913 (R.I. 1990). Because we find that the

Cf. Watts, 115 N.H. at 188-89; Tregoning, p. 7 782 A.2d at 1004; Pettinato

legal father. Accordingly, the trial court erred in ordering genetic marker In this case, the acknowledgement established the father as the child’s

to order genetic marker testing when that issue remains relevant, best interests generally should be given consideration in determining whether

that children have the right to certainty in their relationships with their Wiltschek, p. 7 782 A.2d 1001, 1004 (Pa. Super. Ct. 2001) (“Public policy demands Paternity of Cheryl, 746 N.E.2d at 495 (citations omitted); see also Tregoning v. support, both emotional and financial, are essential to a child’s welfare.” important in paternity determinations because “stability and continuity of interests required such testing. Certainty and finality are particularly (1976), we find that the trial court erred in finding that this child’s best Brooks, 141 N.H. 508, 512 (1996); Hansen v. Hansen, 116 N.H. 329, 331

because it would be in the child’s best interests. While we agree that a child’s The trial court apparently found that genetic marker testing was relevant