Fall 2009 open memo pleadings arkansas law ai sperm donor parental rights

IN THE CIRCUIT COURT OF PULASKI COUNTY, ARKANSASDIVISION 5

In the Matter of the Paternity of: )CARSON L. WARREN and )CATALYN M. WARREN, by and )Through Their Natural Father )and Next Friend, )

)DAVID R. COVINGTON, )

)Petitioner, ) Case No. 09-D-7419

)and )

)SARAH R. WARREN, )

)Respondent. )

____________________________________)

PETITION TO ESTABLISH PATERNITY AND CUSTODYAND FOR CHANGE OF NAME

COMES NOW, the Petitioner, David R. Covington , by and through his counsel,

Benjamin Swank, and hereby states and alleges as follows:

1. Petitioner is a bona fide resident of the State of Arkansas, and the Petitioner

currently resides in Pulaski County, Arkansas, at 7115 S.W. Forest Drive, North Little

Rock, Arkansas 72114.

2. Two (2) children were born to the parties:

Catalyn M. Warren, d/o/b October 12, 2009, and

Carson L. Warren, d/o/b October 12, 2009.

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3. Petitioner, David R. Covington, upon information and belief, is the

biological father of the aforementioned children, and genetic testing should be ordered for

the parties to confirm the Petitioner’s paternity of the children.

4. If, as Petitioner alleges upon information and belief, he is determined by

genetic testing to be the father of the children, Petitioner alleges that they were conceived

in Hot Springs, Arkansas, by means of artificial insemination.

5. At the time the children were conceived, Petitioner resided in Mountain

Home, Arkansas. Petitioner moved to his current residence in North Little Rock, Arkansas

on or about September 4, 2009, in anticipation of the children’s birth.

6. Petitioner is a fit and proper person to be awarded joint legal custody of

the minor children and is financially capable of providing for the needs of the children.

7. No child support order or schedule of parenting time has yet been

established.

8. Petitioner further states:

a) The children’s present address is 3629 S.W. Auburn Road, Sherwood, Arkansas.

b) The name and present address of the person with whom the children live is as follows:

Sarah R. Warren, 3629 S.W. Auburn Road, Sherwood, Arkansas.

c) The Petitioner knows of no person not a party to the proceedings who has physical custody of the children or claims to have custody or visitation rights with respect to the children.

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9. Because the minor children reside within the State of Arkansas and both

parties currently reside in Pulaski County, Arkansas, this Court has jurisdiction and venue

over this matter under Ark. Code Ann. § 9-10-102 (2009).

10. Should genetic testing confirm that Petitioner is the father of the children, as

Petitioner believes in good faith, the children were conceived by artificial insemination in

Hot Springs, Arkansas. Therefore, Arkansas law applies with respect to the parental rights

of the Petitioner.

11. If it is determined, once genetic testing is complete, that David R.

Covington is in fact the biological father of the children, as he believes in good faith,

Petitioner requests that Catalyn M. Warren’s name be changed to Catalyn M. Covington,

that Carson L. Warren’s name be changed to Carson L. Covington, and that David R.

Covington be named the natural father on both children’s birth certificates.

WHEREFORE, Petitioner prays this Court to enter an Order for genetic testing to

establish paternity of the minor children; for joint custody of the minor children; for an

order of child support and a schedule of parenting time; and upon the Court’s determination

of paternity, for change of the children’s names to Catalyn M. Covington and Carson L.

Covington respectively; for David R. Covington to be named as the natural father on the

children’s birth certificates; and such further relief as the Court deems just and equitable.

Respectfully submitted,

Dated: October 28, 2009 ___________/s/____________________Benjamin SwankArkansas Bar #189192913 S.W. Wanamaker RoadLittle Rock, Arkansas 72210(501) 297-8002

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)and )

)SARAH R. WARREN, )

)Respondent. )

____________________________________)

AFFIDAVIT ACKNOWLEDGING PATERNITY

STATE OF KANSAS )) ss:

COUNTY OF PULASKI )

I, DAVID R. COVINGTON, who is of lawful age, being first duly sworn on oath,

depose and state the following:

1. I am an individual presently residing at 7115 S.W. Forest Drive, North Little

Rock, Arkansas 72114.

2. I hereby acknowledge the paternity of my son Carson L. Warren and

daughter Catalyn M. Warren, both born on October 12, 2009, in that I am their biological

father.

3. Sometime in late 2008, Sarah Warren asked me to donate sperm to allow her

to conceive a child by artificial insemination. At first reluctant, I ultimately agreed, with

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the understanding that I would have access to the children and would play a significant role

in their upbringing.

4. On the day of the children’s birth, I went to the Arkansas Children’s

Hospital to await their arrival. After their birth, hospital staff refused to allow me to see

my children, claiming that their mother, Sarah Warren, had ordered them to keep me away

from the children.

5. I have made additional efforts to maintain contact with my children and to

establish a paternal relationship with them. Sarah Warren refuses to allow me to see my

children, contrary to the verbal agreement upon which I relied when I agreed to donate my

sperm to her for artificial insemination purposes.

6. I hereby acknowledge my obligation to provide for the needs and expenses

related to the care and wellbeing of my son Carson L. Warren and daughter Catalyn M.

Warren.

7. I hereby acknowledge my obligation to provide for the prenatal and natal

care of my son Carson L. Warren and my daughter Catalyn M. Warren.

8. I hereby assert my parental rights to joint custody or court-ordered visitation

with my son Carson L. Warren and my daughter Catalyn M. Warren.

FURTHER AFFIANT SAYETH NOT.

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VERIFICATION

David R. Covington, who is of lawful age, being first duly sworn on oath, states:

He is the Petitioner in this matter; he has read this document and knows its content; and the statements and allegations contained in this document are truthful and accurate.

___________/s/___________________David R. Covington, Petitioner

STATE OF ARKANSAS )) ss:

COUNTY OF PULASKI )

On this 29th day of October, 2009, David R. Covington, who is personally known to me to be the same person who executed this document, personally appeared before me, a notary public in and for Pulaski County and the State of Arkansas.

In witness of his signature, I have set my hand and seal on the date last above written.

___________/s/___________________Notary Public

My Appointment Expires: _9/30/10__

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)and )

)SARAH R. WARREN, )

)Respondent. )

____________________________________)

APPLICATION FOR APPOINTMENT OF NEXT FRIEND

Petitioner, David R. Covington, upon information and belief, asserts that he is the

natural father of Carson L. Warren and Catalyn M. Warren, minor children; that Carson L.

Warren and Catalyn M. Warren currently reside with Respondent in or near Sherwood,

Arkansas; that Petitioner desires to institute an action on behalf of the minor children in the

Circuit Court of Pulaski County, Arkansas, to establish by genetic testing that he is in fact

the natural biological father of Carson L. Warren and Catalyn M. Warren, and that he, the

Petitioner and the children’s putative father, be appointed as their next friend for the

purpose of instituting this action.

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VERIFICATION

David R. Covington, who is of lawful age, having been first duly sworn, states:

He is the Petitioner; he has read this document and knows its content; and his statements and allegations in the document are truthful and accurate.



COUNTY OF PULASKI )



___________/s/___________________Notary Public


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)and )

)SARAH R. WARREN, )

)Respondent. )

____________________________________)

CONSENT OF NEXT FRIEND

I, DAVID R. COVINGTON, consent and am willing to serve as the Next Friend of

Carson L. Warren and Catalyn M. Warren, minor children, for the purpose of instituting an

action to determine their paternity.

VERIFICATION

David R. Covington, who is of lawful age, having been first duly sworn, states:

He is the Petitioner; he has read this document and knows its content; and his statements and allegations in the document are truthful and accurate.


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COUNTY OF PULASKI )



___________/s/___________________Notary Public


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)and )

)SARAH R. WARREN, )

)Respondent. )

____________________________________)

ANSWER AND RESPONSE TO PETITION TO ESTABLISHPATERNITY, CUSTODY, AND CHANGE OF NAME

Sarah R. Warren, by and through her attorney, Susan Anderson, for her Answer and

Response to the Petition, denies each of the allegations unless specifically admitted below.

1. Respondent is without sufficient information or knowledge to form a belief as to

the truth of the allegations in Paragraph 1.

2. Respondent admits that she has two children, namely Catalyn M. Warren and

Carson L. Warren, but denies that a relationship existed between Respondent and

Petitioner. Respondent challenges Petitioner’s acknowledgement of paternity on the basis

that Petitioner was a sperm donor only, and no written agreement ever existed between

Petitioner and Respondent regarding artificial insemination. Therefore, Petitioner is not

considered in law to be the natural father of Catalyn M. Warren and Carson L. Warren.

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3. Respondent denies the allegation in Paragraph 3 in its entirety and asserts that

Petitioner is not considered in law to be the birth father of Catalyn M. Warren and Carson

L. Warren.

4. Respondent denies the allegation in Paragraph 4 that Petitioner is the natural

father of Catalyn M. Warren and Carson L. Warren. Respondent admits the allegation in

Paragraph 4 that the children were conceived in Hot Springs, Arkansas, by means of

artificial insemination.

5. Respondent admits the allegation in Paragraph 5 that at the time the children

were conceived, Petitioner resided in Mountain Home, Arkansas. Respondent has

insufficient information to either admit or deny the second sentence of Paragraph 5.

6. Respondent denies the allegation in Paragraph 6 in its entirely and does not

believe that Petitioner is entitled to any type of legal custody or court-ordered visitation.

7. Respondent admits the allegation in Paragraph 7 that no child support order or

schedule of visitation has been established and alleges that neither should be established, as

Petitioner is not considered in law to be the natural father of Catalyn M. Warren and

Carson L. Warren.

8. Respondent admits the allegations in Paragraph 8.

9. Respondent admits the allegation in Paragraph 9.

10. Respondent denies the allegation in Paragraph 10 that the Petitioner is the father

of the children. Respondent admits that the children were conceived in the State of

Arkansas as the Respondent’s fertility doctor is located in Hot Springs, Arkansas and the

artificial insemination took place in Hot Springs, Arkansas.

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11. Respondent denies the allegation and request in Paragraph 11 for a name change

in its entirety because David R. Covington is not considered in law to be the natural father

of Catalyn M. Warren and Carson L. Warren. Further, Respondent objects to Petitioner’s

request to change the children’s surname to Covington. Respondent does not consent to

such a name change for a number of reasons, including but not limited to the fact that it is

not in the best interest of her children. Respondent contends that absent her consent,

Arkansas law supports her objection to changing the minor children’s name from Warren

to Covington.

_________/s/__________________Susan Anderson, #15897Attorney for Respondent

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COUNTY OF PULASKI )

I, Sarah R. Warren, of lawful age, being first duly sworn upon my oath, according

to law, state that I am the respondent in the above matter and that the allegations and

averments contained in my Answer and Response to Petition are true and correct to the best

of my knowledge and belief.

_________/s/__________________ Sarah R. Warren

SUBSCRIBED AND SWORN before me this 29th day of October, 2009.

_________/s/__________________ ________12/31/11_____________Notary Public My Appointment Expires

CERTIFICATE OF SERVICE

Susan Anderson hereby certifies that on the 29th day of October, 2009, that she served a copy of the above and foregoing Answer and Response to Petition to Establish Paternity, Custody, and Change of Name, by U.S. Mail, first class, postage prepaid, addressed as follows:

Benjamin SwankAttorney at Law2913 S.W. Wanamaker RoadLittle Rock, AR 72210

_______________________________Susan Anderson, #15897

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)and )

)SARAH R. WARREN, )

)Respondent. )

____________________________________)

MOTION TO DISMISS

Respondent, Sarah R. Warren, by her attorney, Susan Anderson, respectfully asks

this Honorable Court to issue an Order dismissing the captioned action by virtue of

Arkansas Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can

be granted. In support of this Motion, Respondent alleges as follows:

1. Petitioner lacks standing to file a paternity action because he is not the legal

father of the children.

2. Petitioner David R. Covington’s acknowledgement of paternity is invalid in

that Carson L. Warren and Catalyn M. Warren were not conceived as the result of a sexual

relationship between the Petitioner and Respondent. Rather, Petitioner was only the donor

of semen provided to a licensed physician for the purpose of inducing Respondent’s

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pregnancy by artificial insemination. Moreover, Respondent has never been Petitioner’s

wife, and the parties had no written agreement concerning this matter as provided by Ark.

Code Ann. § 20-10-202(b).

3. In order for the donor of sperm to be treated in law as the natural father of a

child born to a woman who is not the donor’s wife, Respondent contends that Arkansas law

requires a written agreement to that effect between the sperm donor and the woman who is

impregnated by artificial insemination with the donor’s sperm.

4. Because Petitioner David R. Covington is not considered to be the birth

father and next friend of Catalyn M. Warren and Carson L. Warren as a matter of law, this

action should be dismissed with prejudice.

WHEREFORE, Respondent prays the Court issue an Order dismissing Case No.

09-D-7419 with prejudice, and granting Respondent such other and further relief as the

Court deems just and equitable.

Respectfully submitted,

___________________________Susan Anderson, #15897Attorney for Respondent

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CERTIFICATE OF SERVICE

I, Susan Anderson, do hereby certify that I have served a true and correct copy of the above and foregoing document on counsel of record by placing the same in the U.S. mail, postage prepaid, on the 29th day of October, 2009, addressed to:

Benjamin Swank2913 S.W. Wanamaker RoadLittle Rock, Arkansas 72210Attorney for Petitioner

_______________________________Susan Anderson, #15897Attorney for Respondent

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Fall 2009 open memo pleadings arkansas law ai sperm donor parental rights

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