Susan S. Perry, Esq.
K. Bruce Lazenby, Esq.
Acting General Counsel Beckley, West Virginia
Bureau for Child Support Enforcement Attorney for Appellee
Charleston, West Virginia
Attorney for Appellant West Virginia
Department of Health and Human Resources
Fayetteville, West Virginia
Appellant, Pro se
JUSTICE STARCHER delivered the Opinion of the Court.
2. In considering the merits of a challenge to a paternity acknowledgment
made pursuant to W.Va. Code, 48A-6-6 
, a court's decision whether to render the
acknowledgment invalid or ineffective is to be made only after consideration of all applicable
preferences, presumptions, and equitable principles established in our paternity
jurisprudence, with the best interests of the child being a paramount consideration. To the
extent that Syllabus Point 2 of State ex rel. W.Va. DHHR on behalf of Laura F. M. v. Cline,
197 W.Va. 79, 475 S.E.2d 79 (1996) differs from this holding, it is hereby modified.
In the instant case we find that a natural father has the duty to provide support
for his child, despite the fact that another man initially agreed to be listed as the child's father
on the child's birth certificate.
Two weeks after the child's birth, on October 12, 1994, Ms. P. and Mr. Robert C. (Mr. C) signed a notarized paternity acknowledgment, pursuant to W.Va. Code, 48A-6-6 See footnote 1 1 stating that Mr. C. was the biological father of the child. This resulted in the birth certificate of the child being amended by the State Bureau of Vital Statistics to show Mr. C. as the child's father, and to show the child's last name as C..
On December 1, 1994, Ms. P. and Mr. K. were divorced by order of the Circuit
Court of Raleigh County. The order granting the divorce, agreed to by Mr. K. and Ms. P.,
stated that there were no children born of the parties' marriage.See footnote 2
We do not know what triggered the subsequent involvement of the appellant State Child Support Enforcement Division (the Division) in seeking support for the child. Whatever the reason, in March of 1995, the Division instituted a legal proceeding in Raleigh County against Mr. C., to establish Mr. C.'s duty to pay support for the child.
In that proceeding, Mr. C. apparently requested blood testing on the issue of whether he was the child's biological father. Testing was ordered, and the results excluded Mr. C. as the child's biological father. The Raleigh County action against Mr. C. was voluntarily dismissed by the Division on October 6, 1996. The dismissal order did not address the issue of whether Mr. C.'s name should continue to be listed as the child's father on the child's birth certificate.
The Division then filed a paternity/child support action against Mr. K. in Fayette County -- in June of 1997. This is the case in which the instant appeal is taken. The Division's lawyer in the Fayette County action may not have known the details of the earlier legal action that the Division had filed against Mr. C. in Raleigh County.
In the Division's case against Mr. K., the Fayette County court ordered blood
testing. The test results showed that Mr. K. was in fact the biological father of the child. By
order entered June 30, 1998, the Fayette County court held that Mr. K. was the legal father
of the child, ordered Mr. K. to pay child support, and ordered that Mr. K.'s name be placed
on the child's birth certificate.
Subsequently, in July of 1998, the State Bureau of Vital Statistics, having received the Fayette County court order that required the listing of Mr. K as the child's father, advised Mr. K.'s counsel that there was already a father -- Mr. C. -- listed on the child's birth certificate. Based on this information, Mr. K. moved the Fayette County court to set aside the court's previous June 30, 1998 order, and to dismiss the Division's case against Mr. K.
On April 14, 1999, the Fayette County court granted Mr. K.'s motion, and vacated its previous order that established Mr. K. as the child's father and that required Mr. K. to pay child support. The Division excepted to this ruling and brings the instant appeal.
Standard of Review
In Chrystal R. M. v. Charlie A. L., 194 W.Va. 138, 459 S.E.2d 415 (1995), we discussed acknowledgment of paternity pursuant to W.Va. Code, 48A-6-6 (the text of the current statute is at note 1 supra; the statutory history is discussed at note 4 infra.) .
We stated in
Chrystal R. M.
that the purpose of
. . . allowing for acknowledgment of paternity by written agreement [under 48A-6-6], is to enable the biological father to acknowledge this fact without going through an expensive and often protracted hearing to establish paternity [by filing an action in court under other statutory provisions].See footnote 3 3
194 W.Va. At 141, 459 S.E.2d at 418
We have been somewhat reluctant to find that a 48A-6-6 paternity acknowledgment may be successfully challenged. For example, in State ex rel. W.Va. DHHR on behalf of Laura F. M. v. Cline, 197 W.Va. 79, 475 S.E.2d 79 (1996), a paternity acknowledgment pursuant to W.Va. Code, 48A-6-6  was completed by the mother and Mark Edward C., acknowledging that Mark Edward C. was the father of a recently born child. A short time thereafter, the mother filed a child support action against Mark Edward C., and the family law master refused to order blood tests at Mark Edward C.'s request. The circuit court overruled the family law master, and ordered that blood tests could be performed.
This Court reversed the circuit court, holding that the Legislature had established that [t]he only way the father's acknowledgment of paternity can be revoked would be through a finding that it was obtained from him under fraud or duress, and that no such duress or fraud had been shown or alleged. 197 W.Va. at 83, 475 S.E.2d at 83.See footnote 4 4
In State ex rel. David Allen B. v. Somerville, 194 W.Va. 86, 459 S.E.2d 363 (1995), we held that while blood tests may be admissible to challenge the paternity that is established by W.Va. Code, 48A-6-6, the challenge must be made in the first instance by a person who has standing to make such a challenge. We said in Syllabus Point 3 that while an alleged biological parent may have standing to challenge paternity that has been established under W.Va. Code, 48A-6-6, a grandparent does not have such standing. Additionally, in Simmons v. Comer, 190 W.Va. 350, 357, 438 S.E.2d 530, 537 (1993), we stated that a mother would not ordinarily have standing to assert that a father whose paternity was established pursuant to W.Va. Code, 48A-6-6 was not the biological father.
In the instant case, the circuit court ruled that the biological paternity of Mr.
K. that was shown by the blood test results did not overcome the legal paternity of Mr. C.
that was established by the W.Va. Code, 48A-6-6 acknowledgment.
To the extent that the circuit court's ruling in the instant case recognized that blood test results are not a trump card that establishes or dictates legal paternity in all cases, the circuit court correctly applied the law that we have developed in our cases.
For example, in Michael K. T. v. Tina L. T., 182 W.Va. 399, 387 S.E.2d 866 (1989), we held that while the legal presumption of paternity that arises from birth or conception in wedlock is rebuttable, blood test results that factually exclude the biological paternity of a man who is legally presumed to be a child's father because of the child's birth in wedlock are not necessarily admissible to rebut the legal presumption. We held that if a person has held himself out as the father of a child for such a time that disproof of paternity would result in undeniable harm to the child, blood test results may be ruled to be inadmissible. (We also held that whenever a court faces a claim seeking to disprove a child's paternity, a guardian ad litem should be appointed to represent the interests of a minor child.)
Additionally, in State ex rel. Roy Allen S. v. Stone, 196 W.Va. 624, 474 S.E.2d 554 (1996), we held that a putative biological father might in certain circumstances be permitted to prove his biological paternity by blood tests, and to seek to rebut the legal presumption of paternity that arises in a child's mother's husband. However, we emphasized that [t]he preeminent factor in deciding whether to grant or deny blood testing is the child's best interests. Id., 196 W.Va. at 638, 474 S.E.2d at 568. We recognized that in paternity cases involving conflicting bases or presumptions for paternity, a court's decisions require the exercise of sensitivity and discretion in the analysis of a range of factors that can vary widely from case to case in terms of their applicability and importance. Id. 196 W.Va. at 639, 474 S.E.2d at 569. See footnote 5 5
in addressing the issues raised in the instant appeal,
we find that we
must re-examine this syllabus point; and we conclude that upon such re-examination, we
must modify it for several reasons.See footnote 7
First, this syllabus point does not take into account the 1997 statutory inclusion of material mistake of fact as an additional named equitable ground that allows a court to consider a challenge to the validity or effectiveness of a W.Va. Code, 48A-6-6 paternity acknowledgment. Nor does this syllabus point take into account the fact that the statute was also changed in 1997, to remove the term irrevocable.
Additionally, this syllabus point does not take into account of or incorporate our consistent and long-standing jurisprudence that recognizes a court's duty to weigh a broad range of equitable and public policy factors in all paternity cases, as discussed at III.B. hereinabove, see, e.g. State ex rel. Roy Allen S. v. Stone, supra.
There is no doubt that when possible, paternity statutes must
be carefully read
and applied so as not to unfairly prejudice or burden the fundamental rights of children and
parents. If a paternity statute cannot be so read, it is vulnerable to being judicially limited
or modified on constitutional grounds. This Court, for example, has modified statutes of
limitation in paternity statutes because of equal protection and due process considerations,
see, e.g., State ex rel. S.M.B. v. D.A.P., 168 W.Va. 455, 284 S.E.2d 912 (1981); and has held
that indigent persons are entitled to state-compensated counsel in paternity proceedings on
constitutional grounds, see State ex rel. Graves v. Daugherty, 164 W.Va. 726, 266 S.E.2d
Moreover, as a remedial statute (see note 1, supra), we must be guided in reading W.Va. Code, 48A-6-6 by the principle that [t]hat which is plainly within the spirit, meaning and purpose of a remedial statute, though not therein expressed in terms, is as much a part of it as if it were so expressed. Syllabus Point 1, Hasson v. City of Chester, 67 W.Va. 278, 67 S.E. 731 (1910). We believe that the well-established principles of giving paramount concern to the best interests of the child, and the duty of natural fathers to support their children, are plainly within the spirit, meaning and purpose of W.Va. Code, 48A-6-6.
Guided by such an approach to paternity-related statutory construction, we must look closely at the portion of 48A-6-6  that is directly pertinent to the issue presented in the instant case, which states:
After the sixty-day period has expired, the acknowledgment [of
paternity] may thereafter be challenged only on the basis of
fraud, duress or material mistake of fact, upon a finding of clear
and convincing evidence by a court of competent jurisdiction.
The statute says that a W.Va. Code,
48A-6-6 acknowledgment may . . . be
challenged [if there is proof of fraud, duress, or a material mistake of fact]. But the statute
does not say that upon such proof, the acknowledgment must be voided.
Rather, while proof of inequitable circumstances like fraud, etc., is stated to be a threshold or prerequisite for bringing a challenge to the efficacy of a W.Va. Code, 48A-6-6 paternity acknowledgment, proof of such circumstances is not a guarantee that the (permissible) challenge will necessarily be successful.See footnote 8 8 Rather, that ultimate decision should involve the consideration and weighing of all applicable preferences, presumptions and equitable principles that must be applied in paternity cases -- including, as a paramount factor, the best interests of the child.
For the foregoing reasons, we hold that after the statutory period of time during which a paternity acknowledgment made pursuant to W.Va. Code, 48A-6-6  may be rescinded has passed, proof by clear and convincing evidence of fraud, duress, material mistake of fact, or similar circumstance raising serious equitable concerns is a necessary prerequisite for a court to entertain a challenge to the validity and effectiveness of such a paternity acknowledgment. In considering the merits of a challenge to a paternity acknowledgment made pursuant to W.Va. Code, 48A-6-6  , a court's decision whether to render the acknowledgment invalid or ineffective is to be made only after consideration of all applicable preferences, presumptions, and equitable principles established in our paternity jurisprudence, with the best interests of the child being a paramount consideration. To the extent that Syllabus Point 2 of State ex rel. W.Va. DHHR on behalf of Laura F. M. v. Cline, 197 W.Va. 79, 475 S.E.2d 79 (1996) differs from this holding, it is hereby modified.
Applying the foregoing principles to the instant case, we conclude that the Fayette County court's reasoning in the instant case understandably but erroneously gave a preclusive or trump card effect and validity to Mr. C.'s W.Va. Code, 48A-6-6 acknowledgment of paternity.
The correct approach, under the foregoing principles, would have been that, if grounds were established to consider invalidating Mr. C.'s W.Va. Code, 48A-6-6 paternity by acknowledgment, the court should have engaged in a weighing process.
We conclude that as a matter of law, the Fayette County circuit court did have grounds to consider a challenge to the validity of Mr. C.'s W.Va. Code, 48A-6-6 paternity. One ground, of course, was that his paternity had already been voided (at least as to establishing his duty of child support) by another circuit court. Additionally, the blood test results and the circumstances of the Mr. K./Ms. P. relationship suggested strongly that Mr. C.'s acknowledgment of paternity may have been based on at least a material mistake of fact.
Looking next to the weighing process, we recognize that the circuit court in essence faced a conflict between two competing paternities -- in the context of a claim brought by the state for a minor child seeking support by the legal father of the child (as determined by the court.)See footnote 9 9
Supporting a finding of Mr. C.'s paternity is (1) Mr. C.'s presumably voluntary (but also quite possibly mistaken) W.Va. Code, 48A-6-6 acknowledgment; and (2) the consequent fact that he was named as the child's father on the child's birth certificate. Mr. C.'s paternity is undermined by (1) biological fact; (2) by his relatively prompt action to dispute his paternity; and (3) by the ruling of the Raleigh County court that he does not owe child support.See footnote 10 10
Supporting a finding of Mr. K.'s paternity is (1) the child's birth to a woman
to whom he was married at the time of the child's birth; and (2) biological fact. Mr. K.'s
paternity is undermined by (1) his being excluded in the divorce action as the child's father;
and (2) by some delay, apparently not attributable to Mr. K., in the bringing of the paternity
claim against him.
Under our cases, it is significant that there was relatively little time (6 months or so) between Mr. C.'s initial
acknowledgment of paternity and his contesting it. It seems unlikely that Mr. C. had held himself out as the child's father to such an extent as to make permitting Mr. C. to deny paternity inequitable because such denial would be undeniably harmful to the best interests of the child. See Michael K. T., supra. We cannot say from the record before us that Mr. C. acted in such a way that he should have been equitably estopped from disputing his paternity.
Mr. K. argues that it is unfair that Mr. K. should have to assume the responsibilities of legal paternity. Mr. K. claims that Ms. P. did everything she could for several years to hide the parentage of the child from Mr. K. Assuming arguendo that this is the case, we doubt that such concealment behavior by a mother, even if inequitable vis-a-vis the father, can ordinarily be attributed to an innocent child so as to weigh substantially on behalf of freeing a biological father from the responsibilities of supporting his offspring.
Mr. K. points to the implicit decree of non-paternity (no children born of the marriage) that the Raleigh County court issued in connection with Mr. K.'s and Ms. P.'s divorce. But like Ms. P.'s alleged concealment, our cases have consistently held that such decrees or determinations are not res judicata and do not inure to the benefit of a putative parent in an action brought on behalf of the child to obtain support. See, e.g., Shelby G. S., supra.
Finally and most importantly, Mr. K.'s marriage to the child's mother at the time of the child's birth, and the fact of Mr. K.'s factual, biological parentage, are both weighty factors. Cf. Kathy L. B. v. Patrick J. B., 179 W.Va. 655, 658, 371 S.E.2d 583, 585 (1988); Shelby J. S. v. George L. H., 181 W.Va. 154, 155-56, 381 S.E.2d 269, 270-71 (1989); Kessell v. Leavitt, 204 W.Va. 95, 199, 511 S.E.2d 720, 824 (1998); and Michael K. T. v. Tina L. T., 182 W.Va. 399, 387 S.E.2d 866 (1989).
We could remand this case to the circuit court for a final weighing of the applicable factors that we have discussed. But we believe that the outcome of such a weighing is foreordained, and it is in the child's best interest for paternity to be settled sooner rather than later.
We conclude that the Fayette County court erred in setting aside its initial
determination that Mr. K. is the legal father of the child Robert Early. We affirm that initial
determination. This case is remanded for further proceedings consistent with this opinion.
Reversed and Remanded.
(c) Failure or refusal to include all information required by subsection (b) of this section shall not affect the validity of the written acknowledgment, in the absence of a finding by a court of competent jurisdiction that the acknowledgment was obtained by fraud, duress or material mistake of fact, as provided in subsection (d) of this section.
(d) An acknowledgment executed under the provisions of this section may be rescinded within the earlier of sixty days from the date of execution or the date of an administrative or judicial proceeding relating to the child in which the signatory is a party. After the sixty-day period has expired, the acknowledgment may thereafter be challenged only on the basis of fraud, duress or material mistake of fact, upon a finding of clear and convincing evidence by a court of competent jurisdiction. The legal responsibilities, including child support obligations, of a signatory to the acknowledgment may not be suspended during any challenge, except for good cause shown.
(e) The original written acknowledgment should be filed with the state registrar of vital statistics. Upon receipt of any acknowledgment executed pursuant to this section, the registrar shall forward the copy of the acknowledgment to the child support enforcement division and the parents, if the address of the parents is known to the registrar. If a birth certificate for the child has been previously issued which is incorrect or incomplete, a new birth certificate shall be issued.
these two men is likely going to be held responsible for child support. Therefore, even though Mr. C. is not presently before a court, this case is fairly seen as a conflict between two paternities.