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Supreme  Court holds that Misrepresentation of Paternity in a Dissolution Proceeding is Extrinsic  Fraud

In Parker v Parker, No. SC05-2346 Supreme Court of Florida [February 1, 2007] the Supreme Court reviewed Parker v. Parker, 916 So. 2d 926 (Fla. 4th DCA 2005), in which the Fourth District Court of Appeal certified conflict with the First District Court of Appeal’s decision in M.A.F. v. G.L.K., 573 So. 2d 862 (Fla. 1st DCA 1990). The issue was whether a wife’s misrepresentation of paternity in a dissolution of marriage proceeding is extrinsic or intrinsic fraud. This differentiation was significant because of the one-year limitation for filing a motion for relief from judgment under Florida Rule of Civil Procedure 1.540(b). The Supreme Court agreed with the Fourth District that this type of misconduct is intrinsic fraud and, therefore, relief from any judgment based upon such fraud must be sought within one year. Consequently, it approved the Fourth District’s decision in Parker finding that the petitioner’s motion was time-barred, and it disapproved the First District’s conflicting decision in M.A.F. Richard Parker, petitioner, and Margaret Parker, respondent, were married in 1996. Almost two years later, a child was born to the marriage. During the parties’ dissolution of marriage proceeding in 2001, Margaret represented to the court as well as to Richard that he was the child’s biological father. On December 7, 2001, a final judgment was entered dissolving the parties’ marriage. This judgment incorporated a revised marital settlement agreement acknowledging Richard as the father of the couple’s minor child and requiring him to pay child support. In March 2003, Margaret filed a motion for contempt and a petition to enforce child support against Richard. In response, Richard had a DNA test conducted and discovered that he was not the child’s biological father. In June 2003, Richard filed an independent civil action against Margaret claiming fraud and seeking compensatory damages for past and future child support obligations. The trial court dismissed Richard’s civil action with prejudice. Richard appealed to the Fourth District, which, at Richard’s request, treated the claim as a motion for relief from the dissolution of marriage final order pursuant to Florida Rule of Civil Procedure 1.540(b). The Fourth District ultimately held that "the issue of paternity misrepresentation in marital dissolution proceedings is a matter of intrinsic fraud. It is not extrinsic fraud, or a fraud upon the court, that can form the basis for relief from judgment more than a year later." The Fourth District also certified conflict with the First District’s decision in M.A.F. Id. at 930. In M.A.F, the First District held that when a wife knows that her husband is not the father of her children, and the husband does not know, concealment of that knowledge in a divorce proceeding involving child support is extrinsic fraud upon the court. The husband’s petition was not barred by the doctrine of res judicata or the one year limitation of actions provision of Florida Rule of Civil Procedure 1.540(b). The Supreme Court agreed with the essential reasoning of the Fourth District and its conclusion that the former wife’s misrepresentation concerning paternity during the dissolution of marriage proceedings constitutes intrinsic fraud as well as the Fourth District’s conclusion that the petitioner’s rule 1.540(b) motion was barred because it was not brought within one year of the judgment dissolving the marriage and establishing paternity. The court agreed with the Fourth District’s reasoning in Parker that the balance of policy considerations did not require a different result, particularly with regard to the presumption of legitimacy. It found that the balance of policy considerations favors protecting the best interests of the child over protecting the interests of one parent defrauded by the other parent in the midst of a divorce. It noted that the Legislature did, in fact, address some of these policy considerations when it enacted section 742.18, Florida Statutes, in 2006, which provides the circumstances and procedures under which a male may disestablish paternity and terminate a child support obligation. However, it did not consider and do not address the applicability of this new statute to the petitioner’s circumstances.

Eleventh Circuit Holds that Irish Testamentary Guardians Have Rights of Custody Under Hague Convention

In Hanley v Roy , --- F.3d ----, 2007 WL 1238537 (11th Cir.( Fla.)) the Hanleys, were the maternal grandparents and testamentary guardians of Roy's children--D.R. (born 1988), C.R. (born 1992) and R.R. (born 1997). The Hanleys' daughter, Margaret, married Roy, a United States citizen, in England in 1986 and the two resided in England together. Margaret and Roy separated in 1995, attempted to reconcile in 1996, and then separated again that same year. In 1997, shortly after the separation and the birth of their third child, Margaret was diagnosed with cancer and wanted to return to Ireland. The Hanleys bought Margaret and the children a house in Ireland and, at Margaret's request, moved in with Margaret and the children to help care for them. Roy remained in England. A few years later, when Margaret's and Roy's marital home in England had to be sold, Roy rejoined the family in Ireland and moved into the Hanleys' home. In March 2000 Margaret executed a will, designating the Hanleys as trustees of her estate and testamentary guardians of the children. Margaret died in November 2000 and her will was probated in August 2003. Roy and the children continued to live with the Hanleys until July 29, 2005, when Roy suddenly moved the children from Ireland to Florida without the Hanleys' knowledge or consent, leaving only a note behind. The Hanleys instituted this action in December of 2005 by filing a petition for the return of their grandchildren pursuant to the Convention and ICARA. On March 14, 2006, Roy wrote a letter to the Hanleys, objecting to their acting jointly as guardians of his children. On March 16, 2006, Roy filed a motion to dismiss the emergency petition, arguing that the Hanleys did not have any "rights of custody" over the children under Irish law. The court granted Roy's motion to dismiss the petition, finding that Roy's removal was not wrongful under Irish law. In re Roy, 432 F.Supp.2d 1297, 1298 (S.D.Fla.2006) because the Hanleys' testamentary guardianship did not confer "rights of custody" under the Convention because: 1) "the mother appointed the grandparents to be guardians and not custodians, which she could have done"; and 2) Roy objected to joint guardianship with the Hanleys.
 

The 11^th Circuit reversed. It found that the Hanleys were appointed "testamentary guardians" of the children by Margaret's will and, pursuant to section 7 of the Guardianship of Infants Act of 1964 were authorized under the laws of Ireland to act as guardians of the children jointly with Roy, unless Roy objected. Upon Roy's objection, the Hanleys could seek a court determination enforcing their joint guardianship rights. Guardianship of Infants Act of 1964, 7(4), (5). In Ireland, "guardianship" encompasses "the duty to maintain and properly care for a child and the right to make decisions about a child's religion and secular education, health requirements and general welfare." Guardianship under Irish law is further described as follows: Guardianship is a concept often confused with custody. In fact, it is not necessary that the guardian of a child be also its custodian and day-to-day caregiver. Guardianship is altogether a more global responsibility. The concept of guardianship relates not to the specific matters of a child's daily life, but to its overall welfare and upbringing. Guardianship, in other words, concerns matters of overriding seminal importance to a child's upbringing, e.g. where he or she is educated, according to which religious belief he or she is to be reared, and whether the child should undergo serious medical treatment. Guardianship should not be seen solely as a right. It entails both rights and duties, in particular the duty to ensure that a child is properly cared for and that decisions relating to the child are made with his or her best interests at heart. Geoffrey Shannon, Child Law, 2-40, p. 46 (2005). See also Geoffrey Shannon, The Family Law Practitioner, <section> I-034, p. 118 (2000) (providing same definition of guardianship). The district court concluded, because the Hanleys were appointed "guardians," and not "custodians" of the children, they could not have "rights of custody" under the Convention. The 11^th Circuit held that the district court erred in narrowly defining "rights of custody" so as to exclude testamentary guardianship from its purview. "Rights of custody" is a term of art under the Convention and is "expressly defined" therein, as "rights relating to the care of the person of the child," Convention, art. 5. The Court pointed out that it has cautioned that, in applying the Hague Convention, "we must look to the definition of 'rights of custody' set forth in the Convention and not allow our somewhat different American concepts of custody to cloud our application of the Convention's terms." Furnes, 362 F.3d at 711. In making this determination, this Court has further cautioned that: it is crucial to note that the violation of a single custody right suffices to make removal of a child wrongful. That is, a parent need not have  "custody" of the child to be entitled to return of his child under the Convention; rather, he need only have one right of custody. Further, he need not have a sole or even primary right of custody.

It concluded that the Hanleys had "rights of custody" under the Convention. As noted earlier, joint guardianship under Irish law involves "matters of overriding seminal importance to a child's upbringing, e.g. where he or she is educated, according to which religious belief he or she is to be reared, and whether the child should undergo serious medical treatment," and entails "the duty to ensure that a child is properly cared for." These rights are analogous to the rights it previously found sufficient to create "rights of custody" under the Convention in Furnes v. Reeves. As in Furnes, the Hanleys' status as joint testamentary guardians is sufficient to create "rights of custody" under the Convention. As guardians, the Hanleys were endowed with joint decision-making authority over the children's education, health, and religious life, see, e.g., F.N. and E.B. v. C.O., 4 IR at 318, and the Hanleys indisputably exercised their rights to care and to provide for the children pursuant to their lawful guardianship status. Although the Irish guardianship rights afforded to the Hanleys are different rights than the Norwegian right of joint parental responsibility and corresponding ne exeat right afforded to the petitioner in Furnes, both rights necessarily involve the "care of the person of the child" within the meaning of the Convention. Importantly, Irish courts agree, holding that guardianship rights under Irish law qualify as "rights of custody" under the Hague Convention. See, e.g., R.C. v. I.S., [2004] 2 I.L.R.M. 285, 294 (High Court, Ir.) (stating that a "guardian" may not have "custody of the child under Irish law" but is still "a person who has 'rights of custody' ... within the meaning of art. 5 of the [C]onvention"). See also Response of Ireland to the 2006 Questionnaire concerning the practical operation of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, 1 (2006), available at http://www.hcch.net/upload/abd_2006_ie.pdf (equating guardianship rights under Irish law with "rights of custody," and commenting that some countries "which have no equivalent in Irish law" "have difficulties with the understanding of the notion" that persons afforded guardian status under Irish law "have guardianship rights and thus custody within the meaning of Article 3 of the Hague Convention."). Accord H (Abduction: Rights of Custody), [2000] 1 F.L.R. 201 (House of Lords, Eng.) (holding that an Irish court possessed "rights of custody" over removed child by virtue of petitioner's guardianship application, which had been pending in that Irish court one month before removal). Thus, the substantive rights the Hanleys enjoyed as testamentary guardians under Irish law were sufficient to create "rights of custody" under the Convention.

The 11^th Circuit rejected the holding of the district court held the Hanleys' "rights of custody" were abrogated when Roy objected to the joint guardianship arrangement. The district court characterized Roy's removal of the children from Ireland as a "constructive" objection to the joint guardianship arrangement with the Hanleys, thus, terminating the Hanleys' guardianship. The district court then reasoned that because the Hanleys failed to go to an Irish court to confirm or enforce their guardianship, they were no longer guardians of the children and, therefore, did not possess the requisite "rights of custody" necessary for the return of their grandchildren. Under the Guardianship Act, the testamentary guardian acts jointly with the surviving parent "unless the surviving parent objects to his so acting." If the surviving parent objects, "the testamentary guardian may apply to the court for an order under this section." Guardianship of Infants Act of 1964, 7(4). A court has three possible responses to a guardian's application: (1) refuse to make an order, whereby the surviving parent remains sole guardian; (2) make an order that the guardian act jointly with the surviving parent; or (3) make an order that the guardian be solely responsible for the child to the exclusion of the surviving parent. Guardianship of Infants Act of 1964, 7(5). The district court determined that an objection by Roy to the Hanleys' testamentary guardianship status automatically abrogated their status--as opposed to merely putting the Hanleys on notice that they should seek, if they so wished, a judicial determination pursuant to section 7 of the Guardianship Act. The legislative debates and legal commentary on the Guardianship Act support this conclusion. Assuming that an objection by Roy would have precluded the Hanleys from exercising their testamentary guardianship pursuant to section 7 of the Guardianship Act, and, thus, their "rights of custody" under the Convention until they obtained a court order, the timing of this objection is critical. The Convention makes clear that "rights of custody" are measured at the time of the removal. It was un disputed that Roy had not objected to the Hanleys' guardianship at any time before the removal and his letter formally objecting to the guardianship was dated almost eight months after the removal. This left the act of removal itself--what the district court dubbed Roy's "constructive" objection--as the only objection that could have terminated the Hanleys' guardianship, and, thus, their "rights of custody," at the time of removal. The court held that Roy's removal of the children to Florida cannot be considered a "constructive" objection sufficient to terminate the Hanleys' guardianship status under Irish law and, therefore, their "rights of custody" under the Convention. Permitting the very act which the Convention seeks to prevent--namely, flight--to constitute a constructive objection sufficient to terminate the Hanleys' "rights of custody" would make a mockery of the Convention. To express an objection by removing children from their place of habitual residence with no prior notice to their guardians must be, and is, in clear violation of the Convention. For the district court to deem this wrongful behavior as a "constructive" objection, and, therefore, allow the act of wrongful removal itself to nullify the Convention of its power to return wrongfully removed children rewards abduction and thwarts the Convention's very purpose. The Court found that under Irish Law Roy could not evade Irish law and that he could not evade the Convention by giving notice of his objection to the joint guardianship arrangement by the act of removal. The removal of the children to Florida was insufficient to terminate the Hanleys' guardianship at the time of removal. Accordingly, the Hanleys both had and were actually exercising their "rights of custody" at the time of removal, rendering Roy's removal wrongful.