Child Support Issue Causes Split Decision in Supreme Court

Article excerpt

When Billy Joe Davis quit making his monthly child support payments in September 1980, he felt he had good reason - his exwife had taken their one-year-old daughter, Brandy Michelle, overseas to live with her new husband who was stationed in Germany while serving in the U.S. Army.

Davis had visitation rights according to the divorce decree, and was to have been able to see his daughter when his ex-wife, Dean Ann Davis, brought her back the United States for three weeks a year.

But as it turned out, the ex-wife would not allow him to see his daughter, according to court records, so Billy Davis stopped making the child support payments.

"I didn't get visitations rights, so I didn't feel it was right to pay," he told the court.

In February 1982, the ex-wife brought suit in Lincoln County District Court against Billy Davis in an attempt to revoke his parental rights for failing to pay the child support. Lincoln County District Judge Donald Powers agreed with the ex-wife, and issued an order revoking his rights as parent of his minor daughter.

The decision was overturned by the Court of Appeals. Dean Ann Davis appealed to the Oklahoma State Supreme Court, where in a split decision (5-4) recorded Oct. 22, the court agreed with Billy Davis, vacated the Court of Appeals decision and reversed Powers' order revoking Davis' parental rights.

- The "dispositive issue," Oklahoma Supreme Court Justice Marian Opala wrote for the majority, "is whether an involuntary termination of a parental bond may be affected in private interparental proceedings based upon the grounds" provided in Oklahoma statutes.

"The remedies provided in the so-called juvenile code," Opala wrote, "are to be viewed as restricted to public law contests in which the state may assert an interest qua parens patriae" - the rightof the government to take care of minors and other others who cannot legally take care of themselves.

"In a purely private interparental proceeding either to free a child of a parent's dominion or to effectuate the termination of parental bond, the plaintiff must resort to remedies provided" in statutes other than what Dean Ann Davis asserted in her petition, Opala wrote.

The state's interest, therefore, becomes implicated upon a finding of harm to the child - actual or potential - or of the custodial parent's unfitness.

"Absent that finding," Opala wrote, "public policy clearly favors preservation, not destruction, of a subsisting parent-child relationship."

The particular section of Oklahoma statutes in which the child's mother had sought to revoke Davis' parental rights "may be sought by the state only simultaneously with or after a prior adjudication of a child's deprived status," Opala said.

"The integrity of the family unit and preservation of the parent-child relationship command the highest protection in our society," Opala added. "Intrusion upon the privacy and sanctity of that bond can be justified only upon demonstration of a compelling state concern."

Opala stressed in his opinion that the public interest lies in protecting the child from harm and absent that harm, intervention by the state is impermissible.

"Resort to state-action remedies by private individuals would result in a gross distortion of the legal demarcation line that historically has separated purely private interspousal claims from the legislatively-sanctioned process governing state intrusion into the traditional. . .areas of family immunity," Opala wrote.

Those areas of family immunity have as their basis Oklahoma common law, Opala said, which "regards a parent's bond with the child as indestructible and not terminable by judicial decree."

The section of law under which the ex-wife sought to terminate Billy Joe Davis' parental rights is "in derogation of the common law," Opala wrote, and "statutes that abrogate the common law are to be liberally construed. …