Voluntary Acknowledgment of Paternity Creates Standing to Sue for Parenting Time in Jackson, Tennessee: Baxter v. Rowan

January 6, 2021 K.O. Herston 3 Comments

Facts: Father was convicted of aggravated assault and sentenced to 17 years in prison in June. The following month, Child was born.

Father and Mother signed a voluntary acknowledgment of paternity (“VAP”), which states that Father is a legal parent of Child.

For two years, Mother took Child with her to visit Father in prison.

A year after Mother stopped visiting Father in prison, Father petitioned for parenting time.

Mother moved to dismiss because Father lacked standing to seek parenting time where no parentage order had been entered.

Father argued the VAP gave him standing to sue for parental rights whether or not a parentage order had been entered.

The trial court agreed, declaring Father to be Child’s father, granting him rights to communicate with Child, and awarding visitation rights to Paternal Grandmother so she could facilitate Child’s visitation with Father at the prison.

Mother appealed.

On Appeal: The Court of Appeals affirmed in part and reversed in part.

Tennessee Code Annotated § 24-7-113 provides a simplified procedure for unmarried fathers to legally establish their paternity over a child without a court order. This is known as the voluntary acknowledgment of paternity or VAP.

The statute provides that the VAP is conclusive of the father’s paternity without further order of the court unless it is rescinded within 60 days. Unless that happens, it can only be challenged based on fraud, duress, or material mistake of fact within five years of the VAP’s execution.

The Court agreed that the VAP gave Father standing to pursue parenting time:

[T]he VAP in this case was filed in 2011. There is no evidence nor assertions set forth by Mother indicating that the VAP has been rescinded, nor does she appear to challenge its validity. Therefore, the [VAP] shall be conclusive of that father’s paternity without further order of the court.

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[W]hile the VAP signed by both Mother and Father in the underlying cause of action does not confer visitation rights upon Father by mere dint of its execution, it does vest Father with standing to sue for those rights.

The trial court’s judgment regarding Father’s standing to seek parenting time was affirmed. The trial court’s award of visitation rights to Paternal Grandmother was reversed because she “was not a party and never petitioned the court to receive visitation rights with Child.”

K.O.’s Comment: Judge Armstrong wrote a concurring opinion to point out that Father erred by seeking relief per Tennessee Code Annotated § 36-6-301 because that statute doesn’t apply to custody and visitation proceedings for parents who have never been married. In cases such as these, the relief Father sought comes from Tennessee Code Annotated § 36-2-311.

Baxter v. Rowan (Tennessee Court of Appeals, Western Section, December 15, 2020).

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Voluntary Acknowledgment of Paternity Creates Standing to Sue for Parenting Time in Jackson, Tennessee: Baxter v. Rowan was last modified: January 6th, 2021 by K.O. Herston

3 People reacted on this

  1. I’m curious about whether the Appeals Court has, in effect, ordered Mother to bring Child to the prison for visitation. If not, could she just refuse to provide transportation and refuse to allow PGM to transport the child without running afoul of the Court’s ruling?

    1. The opinion only says the trial court granted Father “certain communication rights with the child, but it reserved the determination of any future visitation at the prison.” It does not elaborate on what “communication rights” the trial court ordered. My guess is it’s probably limited to written correspondence by mail or email, or telephone calls.

      Assuming the trial court orders that Mother transport the child to prison for visitation, it would be unwise—and contemptuous—to refuse. It’s common to allow a parent to designate a third party to transport the child, e.g., a stepparent or relative picks up or drops off a child while the parent is at work.

      This fact pattern raises interesting questions.

  2. I have seen courts take the “Milton” perspective and I’ve seen them take the “Baxter” perspective. So, the two (2) statutes can be a bit confusing. It seems odd that the legislature would place the “VAP Statute” in Title 24 as opposed to 36. Nonetheless, this is a great discussion on the actual effects of having a valid VAP.

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