Breaking and associated brands will be offline for scheduled maintenance Saturday May 8 3 AM US EST to 12 PM EST. We apologize for the inconvenience.


Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS: Although they never married, Kevin Shockley and Monica Smith engaged in a sexual relationship between 1992 and mid-1996. In late May and early June 1996, Monica was sexually intimate with both Kevin and with Damin Guthrie. Kevin was unaware of Monica’s involvement with Damin, but Damin knew about Kevin. Monica learned that she was pregnant in October 1996. Kevin asked her if there were any possibility that the child was not his, but Monica denied having sexual relations with any other men. She never told anyone about her sexual liaison with Damin until March 2001. Regan was born on Feb. 24, 1997, in San Angelo. Kevin attended the birth and signed the necessary documents to be named as the father on the birth certificate. Monica acquiesced in Regan’s surname being listed as Shockley. Damin recognized there was a possibility that he was Regan’s father and on more than one occasion, he confronted Monica. Damin even asked for genetic testing, but Monica refused his request, persisting in her claim that Kevin was Regan’s father. Indeed, as the trial court specifically found, Monica intended for Kevin to assume the rights and duties of fatherhood. Kevin began paying child support soon after Regan was born and visited regularly. After Regan was weaned from breast feeding, Kevin began keeping her one or two nights a week. In July 1998, Kevin married Misti Evans and moved to Midland. Kevin and Monica agreed that Regan would alternate weeks between Midland and San Angelo. Between July 1998 and May 1999, Regan split her time equally between Monica and Kevin. Because Misti was employed as a teacher and was not working during the summer, Regan began to stay in Midland on a continuous basis. Once school began, Misti returned to work and Regan started day care. From June 1999 until this lawsuit was filed, Regan lived with Kevin and Misti in Midland on almost a continuous basis, with Monica seeing Regan on a few occasional weekends. She began seeing her more often around the end of November 1999. On Feb. 8, 2000, Monica filed a paternity suit in San Angelo alleging Kevin to be Regan’s father. The very same day, Kevin filed suit in Midland alleging that he was Regan’s biological father and seeking sole managing conservatorship. Monica filed an answer in which she admitted Kevin’s paternity. On May 30, 2000, the court in San Angelo entered temporary orders pursuant to which Kevin and Monica alternated weeks of possession. In June, Monica’s lawsuit was transferred to Midland and consolidated with Kevin’s action. The visitation arrangements continued with Kevin and Misti regularly delivering Regan to Monica and paying for the transportation costs. There were frequent occasions when Monica would call and ask that Kevin and Misti keep Regan an extra week. On March 20, 2001, without Kevin’s knowledge and without the benefit of a court order, Monica, Damin, and Regan obtained parentage testing. The results revealed Damin could not be excluded as the biological father and a 99.8 percent probability that Damin was the biological father. This disclosure marked the first time that Kevin became aware that he may not be Regan’s father. On April 9, Damin filed a petition in intervention seeking to establish his parentage, to be named as a joint managing conservator, to change Regan’s surname to Guthrie, and to recover attorney’s fees. On April 27, Monica amended her pleadings, alleging for the first time that Damin was Regan’s father and joining Damin as an additional respondent to the suit. On May 21, she again amended her petition, requesting an order that would terminate or restrict Kevin’s relationship with the child. In furtherance of this goal, Monica told four-year-old Regan that Kevin was not her father. On May 30, Damin filed “Intervenor/Cross-Respondent’s Original Answer.” In response to Kevin’s motion for summary judgment based upon the statute of limitations, Damin nonsuited his intervention. The motion, filed on June 21, 2000, was granted by the court on June 22. He filed no subsequent pleadings although he remained a respondent to Monica’s lawsuit. Following a bench trial before the Honorable Dean Rucker, the trial court adjudicated Kevin as Regan’s father and appointed him as the sole managing conservator. In response to Monica’s request for findings of fact and conclusions of law, Judge Rucker found that Kevin is the only father Regan has ever known; that Damin had nonsuited his intervention; that Monica should be estopped from denying Kevin’s paternity and from seeking an adjudication that Damin is the child’s biological father; that it was impossible for Monica and Kevin to share parental rights and duties; and that it was not in Regan’s best interest for Monica and Kevin to be appointed joint managing conservators. Neither Monica nor Damin requested additional or amended findings and both have appealed. HOLDING: Affirmed. While Monica may complain of the trial court’s failure to establish Damin’s parentage, Damin may not. Inasmuch as he has no standing to appeal, the court does not address the issues he raises. Damian’s intervention was voluntarily nonsuited. Because no parent-child relationship was ever established between Damian and Regan, there is no factual basis for Monica’s complaint that his parental rights have been terminated in violation of state and federal constitutional protections. Consequently, the only issue for consideration is whether Judge Rucker rightly determined that Monica was estopped from asserting Damian’s parentage. On these facts, the court concludes that he did. Having upheld Judge Rucker’s ruling that equitable estoppel applies and that sufficient evidence supports his finding that Monica should be estopped from denying Kevin’s parentage, Kevin is a parent. As a parent, he may be appointed Regan’s sole managing conservator provided the evidence rebuts the presumption that it is in the best interest of the child for the parents to be appointed joint managing conservators. Texas Family Code �153.131(b). Because Monica has not challenged Judge Rucker’s finding that the appointment of Monica and Kevin as joint managing conservators is not in Regan’s best interest, the court does not detail the evidence supporting it. OPINION: McClure, J.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 1 article* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

Reprints & Licensing
Mentioned in a story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.