HERMANSON VS. HERMANSON (PATERNITY)

Statutes cited

Key holdings

Practitioner summary

The court applied the substantial-relationship test for choice of law (Sievers v. Diversified Mtg. Investors, 95 Nev. 811, 815, 603 P.2d 270, 273 (1979)): the state whose law applies must have a substantial relationship to the transaction, and application must not violate a strong Nevada public policy. California's only connection was that James was born there and the parties briefly resided there years earlier; California had repealed former Evidence Code section 621 (effective January 1, 1994) and its current law allows paternity actions 'at any time.' Applying section 621's conclusive presumption also violated Nevada public policy under NRS 126.081, which bars a paternity action only three years after the child reaches majority. (The court noted Michael H. v. Gerald D., 491 U.S. 110 (1989), upheld section 621 against a due process attack, but that did not compel its application here.) On estoppel, the court applied the four elements from Southern Nev. Mem. Hosp. v. State, 101 Nev. 387, 391, 705 P.2d 139, 142 (1985), and found substantial evidence did not support the second element (that Cindy intended David to rely on an assertion of paternity) or the third (that David was ignorant of the true facts), since Cindy told David the child was not his and David admitted knowing he was not the biological father. Equitable estoppel is grounded in fairness (Topaz Mutual Co. v. Marsh, 108 Nev. 845, 853, 839 P.2d 606, 611 (1992)) and would work unfairly here. Equitable adoption (Frye v. Frye, 103 Nev. 301, 738 P.2d 505 (1987)) was inapplicable. Because NRS 126.051 creates a rebuttable presumption, the court reversed and remanded for a merits determination; the derivative custody award to David was also reversed.

In plain language

Cindy married David when she was six months pregnant with another man's child. She says she told David the child was not his; David admits she never told him he was the father. James was born in 1982, with David's name on the birth certificate. The relationship was turbulent - Cindy repeatedly sought battered women's shelters - and she eventually moved to Iowa and raised James largely alone. After a brief attempted reconciliation, Cindy filed for divorce, asserting there were no children of the marriage. The district court applied California's former conclusive presumption of legitimacy (former California Evidence Code section 621) and the doctrine of equitable estoppel to declare David the legal father, even though blood tests conclusively proved he was not James's biological father. The custody award to David followed from that paternity ruling. Cindy appealed. The Nevada Supreme Court reversed. Applying Nevada's 'substantial relationship' choice-of-law test, it held Nevada law governed: California had no substantial interest (the family had left a decade earlier) and had itself repealed section 621, and applying a conclusive presumption violated Nevada public policy, which lets a child litigate paternity until three years after reaching majority (NRS 126.081). Equitable estoppel did not apply because the record did not support its elements - Cindy had told David he was not the father, and David knew he was not. Nevada's marital presumption of paternity (NRS 126.051) is rebuttable, so the case was remanded to decide paternity on the merits.