APPEAL FROM THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT ROBERTS COUNTY, SOUTH DAKOTA THE HONORABLE JON S. FLEMMER Judge
The opinion of the court was delivered by: Zinter, Justice
[¶1.] Bradley DeBoer sued Tara DeBoer for divorce. Tara counterclaimed for custody and support of a child she had from a prior relationship. The circuit court granted Tara custody of the child, but denied Tara's request for child support. Tara appeals. She argues that a duty of support arose under Texas presumption of paternity statutes. We agree that a duty of support arose under the Texas statutes, and we reverse.
Facts and Procedural History
[¶2.] Tara DeBoer, formerly Tara Koliba, resided in San Antonio, Texas. On July 13, 2003, she gave birth to a son, Taiton Koliba. Tara only knew Taiton's biological father by his first name, and Tara did not identify a father on Taiton's Texas birth certificate.
[¶3.] Tara met Bradley DeBoer in December 2004. They married shortly thereafter. Tara and Taiton moved to rural Corona, South Dakota, to live with Bradley and his son (Caleb DeBoer). Caleb was Bradley's son from a prior marriage.
[¶4.] In January 2006, Bradley executed a will. In his will, Bradley indicated that he had two children: "Caleb DeBoer" and "Taiton DeBoer." Two weeks later, Bradley and Tara decided to change Taiton's last name from "Koliba" to "DeBoer." Because they thought it was too expensive, they did not utilize an attorney to assist them. Instead, they decided to execute a Texas "Application for New Birth Certificate Based on Parentage."
[¶5.] The application required applicants to attach evidence of parentage.
Three options were available: a certified copy of a court decree, an acknowledgment of paternity, and a "certified copy of the BIOLOGICAL parents' marriage license." Bradley and Tara chose the "BIOLOGICAL parents' marriage license" as their evidence of parentage.
[¶6.] Bradley and Tara signed the application and had it notarized. Printed language immediately below Bradley's signature indicated that the person signing the application was the "FATHER or Legal Guardian swearing to this affidavit." A warning on the application, directly above Bradley's signature, stated: "[t]he [p]enalty for knowingly making a false statement in this form can be 2-10 years in prison and a fine of up to $10,000." Although Bradley knew he was not Taiton's biological father, he testified that by executing the application, he thought he was going to become Taiton's father.
[¶7.] The parties submitted the application to the Texas Department of State Health Services--Vital Statistics Unit. In March 2006, the Department issued an amended birth certificate naming Bradley as the father of "Taiton DeBoer." The parties later obtained a new social security card with Taiton's new name. During the marriage, Bradley also identified Taiton as his child on tax returns and health insurance documents. Bradley further held Taiton out as his child, rather than his stepchild, in some church and school activities.
[¶8.] Bradley filed for divorce in 2010. Tara counterclaimed for custody of Taiton and child support. Bradley and Tara stipulated to ...