Felder v. Allsopp

Opinion for the Court by NEWMAN, Chief Judge.

NEWMAN, Chief Judge:

This is an appeal by the mother of a minor child, Ralph Latae Allsopp, from an order of the trial court finding paternity, awarding visitation rights, and requiring payments for support of the child in an action brought by the putative father. Appellant contends on appeal: (1) the trial court lacked jurisdiction to entertain the action below because appellee failed to bring his cause of action prior to the running of a jurisdictional time limitation; (2) the trial court erred in making a finding of paternity and permitting visitation where the child’s best interest would not be served thereby; and (3) the trial court erred by not appointing independent counsel for the child.1 We affirm.

*245Appellant contends that appellee’s action failed to meet jurisdictional time limitations imposed by D.C.Code 1973, § 16-2342. Section 16-2342 provides in pertinent part:2

Proceedings ... to establish parentage and provide for the support of a child born out of wedlock may be instituted after four [4] months pregnancy, or within two [2] years after the birth of the child, or within one year after the putative father or mother, as the case may be, has ceased making contributions for the support of the child. [Emphasis supplied.]

Since the child was born on January 21, 1974, and appellee’s action was not instituted until April 14, 1977, over three years after the birth of the child, his action would be barred if the time limitation in § 16-2342 applies. Section 16-2342 is applicable by its terms to parentage and support proceedings brought under D.C.Code 1973, § 11 — 1101. In the case of a parent suing to establish paternity in order to enforce a support obligation, filing within this time limit is a jurisdictional prerequisite. Lindsay v. District of Columbia, D.C.App., 298 A.2d 211 (1972).

Appellee contends, however, that the statute is not applicable to the type of proceeding with which we deal here. We agree. The jurisdiction of the trial court over this action stemmed from the general equitable powers of the Superior Court, see D.C.Code 1973, § ll-921(a), rather than from § 11 — 1101. Appellee sued to establish the right to visitation, in essence an equitable domestic relations action, such as an action for custody or divorce. This action does not involve an impermissible one merely to establish parentage, Harrison v. District of Columbia, D.C.Mun.App., 95 A.2d 332 (1953), nor does appellee seek to enforce on anyone a duty of support. Rather, parentage is here a relationship that must be proved solely in order to allow a proper consideration of the request for visitation rights. This court would hardly deny a forum to enforce such visitation rights on behalf of the married parent of a child living apart from the spouse with whom the child resides. The sole jurisdictional basis for such an action where neither divorce nor custody is at issue would be the general equity jurisdiction of the trial court. See generally D.C.Code 1973, § 11-1101. We cannot here deny a forum to the unwed parent of a child seeking visitation rights without raising the specter of a denial of equal protection. See Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1971). As we have said, “the right to visitation — the right to be with one’s child — is the preeminent parental right . . . .” In re H.M., J.M., K.M., D.C. App., 386 A.2d 707, 709 (1978). All of the normal equitable doctrines (e. g., laches or unclean hands) will be available to the defending party in the determination of visitation rights.

Appellant argues that it would be inconsistent to bar women from bringing suit but not to bar men similarly, especially since the District’s Anti-Sex Discriminatory Language Act3 has made § 16-2342 parentage proceedings equally applicable to both mothers and fathers. We see no such inconsistency. A mother seeking visitation rights in the case of a child born out of wedlock and left in the care of the putative father would be free to bring such an action without bar from § 16-2342.

*246The duty to support, which is the underlying purpose for the proceedings, is distinct from the right to visitation; the former arises automatically upon establishment of parentage by sufficient proof. See D.C.Code 1977 Supp., § 30-320. We hold that the jurisdiction of the trial court in this case arose from its general equity jurisdiction and that the time limitations of § 16-2342 are not applicable.

We turn now to the second of appellant’s allegations: that the trial court erred in permitting visitation because the best interest of the child would not be served thereby. Appellant argued in the trial court and now argues on appeal that visitation by the natural father at this late date would intrude into the child's world, which for three years has consisted of the mother and her husband, and be detrimental to the child's best interest.

The trial court after considering these arguments found “[t]here was not one scintilla of evidence presented to indicate to the Court any reason, other than the desires of the Defendant, to refuse this father visitation with his child.” The trial court’s findings as to the best interest of the child were carefully considered and based upon firsthand observation and evaluation of the evidence and credibility of the parties involved. We are bound by these findings and must affirm unless they are plainly wrong or without evidentiary support. D.C.Code 1973, § 17-305(a). On this record, we cannot so hold.

Affirmed.

. Independent counsel may be appointed at the discretion of the trial court. In this case, such an appointment was requested only after the close of testimony. There is no indication in *245the record that the interests of the child were not adequately represented to the court by all counsel, and failure to appoint a guardian ad litem does not deny the child due process of law. See Beckwith v. Beckwith, D.C.App., 355 A.2d 537 (1976). The argument is thus without merit.

. Despite recent changes in the District of Columbia family law, e. g., Act of Oct. 1, 1976, D.C.Law No. 1-37, these time requirements have remained virtually unchanged since the enactment of the predecessor of the present law, Act of June 18, 1912, ch. 171, § 2, 37 Stat. 134, codified at D.C.Code 1929, § 18-282.

. Act of Oct. 1, 1976, D.C.Law No. 1-87.