Fox Family Lawyers
Cynthia Moseley Fox
Attorney at Law
7751 Carondelet Avenue,
Suite 700
Clayton, Missouri 63105
(St. Louis)
314.727.4880

Husband Barred From Seeing Child He Helped Raise Since Birth

James Warlop has just learned a painful lesson about how to work things out with your spouse during a divorce. It’s a lesson that cost him the right to see the little girl he helped raise since birth.

 

On June 3rd, the Missouri’s Court of Appeals upheld a lower court decision denying Mr. Warlop the right to visit with the child, even though he and the child’s mother had previously agreed in writing to allow just such visitation.

 

James and Angela Warlop were married in April 2000 and the little girl was born in October of that year. The birth certificate listed Mr. Warlop as the father.

 

Later, after Mrs. Warlop filed for divorce, two unusual events occurred. First, the couple created a “parenting plan”, outside the purview of the court but signed by both them, identifying times for Mr. Warlop to visit with the child. Second, Mr. Warlop asked for DNA testing, which subsequently determined that he was not the little girl’s father.

 

I can only guess at the parties’ motivations in taking these steps. Perhaps, the couple knew throughout the marriage that the child was not Mr. Warlop’s and thought that this was the fairest resolution. It would spare the husband the burden of financially supporting a child not his own, while providing him an avenue to maintain contact. Perhaps, but Mr. Warlop’s decision to disprove his paternity, combined with his reliance on the parenting agreement, sowed the seeds of his undoing.

 

In October 2004, the Warlop’s divorced. Predictably, the court found that Mr. Warlop was not the father, he was not required to pay child support and that Mrs. Warlop was to have sole custody. And, for reasons that may only have become clear to Mr. Warlop subsequently, the couple’s agreement was not a part of the judgment.

 

Even so, all appeared to have been settled amicably until February 2007 when the husband sued asking the court to enforce the “parenting plan” agreed to between him and the child’s mother. Mr. Warlop claimed that mom was no longer allowing him any contact with the child, then six years old.

 

After a hearing, the trial court issued its ruling, saying that it “lacks jurisdiction, statutory authority or case law authority” to grant the husband’s request. As the Appellant Court affirmed, when there are no children born of a marriage or adopted, and no allegations that the natural parents are unfit, the divorce court “does not have jurisdiction to determine the custody of one party’s child”.

 

Said another way, when Mr. Walrop’s self-initiated paternity test proved he was not dad, he no longer had standing vis a vis the custody of the child he had helped raise. And, what about the agreement with mom? Irrelevant since he was not a parent. He could not have made it a part of his divorce decree, unless he had proven that one or both of the natural parents was unfit or had abandoned the child.

 

Mr. Warlop’s only opportunity to establish his custody rights was to have focused his energies on adopting the child rather than on the visitation plan. This would not have been a slam-dunk, given that a divorce was pending, but he had a reasonable case to make. If the real dad was nowhere to be found, and assuming the mom was supportive, he could argue that formalizing his position as father would simply confirm what the little girl already believed and in her best interests.

 

Once named the adoptive father, the court would have insisted that he have a prominent role in the official parenting plan that would be a part of his divorce. Along with that, though, he would also have been assessed child support. I can only assume that Mr. Walrop would have preferred that outcome to where he is now…on the outside looking in.