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Rubano v. DiCenzo9/25/2000
ULP, to illegitimize a child that had been presumed to be the child of Gregory Pettinato pursuant to G.L. 1956 § 15-8-3. This section presumed a man to be the natural father of a child if, after the child's birth, he and the child's natural mother have married, and, with his consent, he is named as the child's father on the child's birth certificate. It was undisputed that Gregory Pettinato had met all of the requirements to trigger the presumption of paternity. The genetic testing evidence would have been in derogation of this presumption which was designed primarily to protect the legitimacy of the child. The presumption of legitimacy is "one of the strongest and most persuasive known to the law." In re Findlay, 170 N.E. 471, 472 (N.Y. 1930); see also Miscovich v. Miscovich, 688 A.2d 726, 729 (Pa.Super. 1997). In Michael H. v. Gerald D., 491 U.S. 110, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989), the United States Supreme Court noted that the primary rationale underlying the legitimacy presumption has been "an aversion to declaring children illegitimate * * * thereby depriving them of rights of inheritance and succession * * * and likely making them wards of the state." Id. at 125, 109 S.Ct. at 2343, 105 L.Ed.2d at 107. A secondary rationale, the Court noted, was "the interest in promoting the 'peace and tranquillity of States and families.'" Id. In Miscovich, it was noted that " he presumption that a child born during a marriage is a child of the marriage 'arose from the reluctance of the law to declare a child "illegitimate," because the status "illegitimate" historically subjected a child to significant legal and social discrimination.'" Miscovich, 688 A.2d at 728. For example, illegitimate children were precluded from, among other things, entering certain professions, and were considered non-persons and not entitled to support from the father or inheritance from either parent. See id. At 728 n.2.
The law still retains "a strong bias against ruling the children of married women illegitimate." Michael H., 491 U.S. at 125, 109 S.Ct. at 2343, 105 L.Ed.2d at 107. In Michael H., the plaintiff sought to establish paternity to a child that was born of a woman who was married to another man. Despite the fact that blood tests indicated a 98.07 percent probability that Michael was the father, and the fact that Michael had established a parental relationship with the child, the Court recognized the woman's husband as the presumptive father of the child. " ven in modern times -- when * * * the rigid protection of the marital family has in other respects been relaxed -- the ability of a person in Michael's position to claim paternity has not been generally acknowledged." Id. The Court held that to establish paternity, Michael "must establish * * * not that our society has traditionally allowed a natural father in his circumstances to establish paternity, but that it has traditionally accorded such a father parental rights, or at least has not traditionally denied them." Id. at 126, 109 S.Ct. at 2344, 105 L.Ed2d 108. The Court held that no case had yet done so. See id.
The Pettinato court's use of equitable estoppel as a shield to prevent Mrs. Pettinato from attacking the presumption of paternity created by § 15-8-3 was for a totally different purpose than that for which the majority now attempts to employ equitable estoppel against DiCenzo, namely, to create jurisdiction in the Family Court over Rubano's complaint seeking visitation rights to a minor child against the wishes of DiCenzo, the child's biological mother. Consequently, Pettinato provides utterly no support for the majority's assertion that the Family Court has jurisdiction to entertain a petition for visitation by Rubano.
I submit that the
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