“Never” Means Never, and “Openly” Means Publicly: Delaware Supreme Court Clarifies the § 8-607(b)(1)(b) Exception to the Two-Year Parentage Limitations Period

Introduction

In Kelly Oscar and Jack Oscar v. Larry Lafferty, the Delaware Supreme Court addressed a recurring but undertheorized question under Delaware’s Uniform Parentage Act (UPA): when may a biological father challenge the marital presumption of paternity outside the two-year statute of limitations in 13 Del. C. § 8-607(a)? The decision answers two critical interpretive questions about the statutory exception in § 8-607(b)(1)(b), which permits challenges “at any time” if the presumed father “never openly held out the child as his own” and did not cohabit or have sexual intercourse with the mother at the probable time of conception.

The case arises from a complex family situation. The mother, Kelly Oscar (“Mother”), remained married to her husband, Jack Oscar (“Oscar”), when she began a relationship with Larry Lafferty (“Lafferty”), who is uncontestedly the biological father of the minor child, Audrey. Audrey was born during Mother’s marriage to Oscar, rendering Oscar the “presumed father” by statute. More than two years after Audrey’s birth, Lafferty petitioned for custody. The Family Court first adjudicated parentage and ruled that, notwithstanding the passage of time, Lafferty could proceed because Oscar had never “openly held out” Audrey as his child. Mother appealed, arguing the Family Court (i) improperly confined its “holding out” analysis to the two years after birth and (ii) clearly erred in finding that Oscar never openly held out Audrey as his own.

The Supreme Court affirmed, clarifying the meaning and temporal scope of “never openly held out” and thereby setting a significant interpretive benchmark for parentage disputes in Delaware.

Summary of the Opinion

The Court affirmed the Family Court’s adjudication that Lafferty is Audrey’s legal father notwithstanding his petition being filed outside the two-year window in § 8-607(a). Two holdings anchor the decision:

Temporal scope: The word “never” in § 8-607(b)(1)(b) is unambiguous and means “at no time.” Accordingly, the inquiry is not confined to the first two years after the child’s birth. Courts must assess whether the presumed father ever, at any point up to the time of litigation, openly held out the child as his own.
Content of “openly held out”: The Court adopted the ordinary, plain-meaning definitions of “openly” (publicly; free from concealment) and “hold out” (to represent to be). Thus, to defeat the exception, a presumed father’s conduct must amount to a public-facing representation of paternity.

Applying those interpretations, the Court concluded the record supported the Family Court’s finding that Oscar never openly held out Audrey as his child. It emphasized that Oscar’s care for Audrey was undertaken in his role as Zoe’s father (Audrey’s older sister) and not as a public acknowledgment of paternity. Administrative listings of Oscar by Mother on daycare and gymnastics paperwork did not amount to Oscar’s own public holding out.

Analysis

Precedents Cited

The Court’s analysis relied on well-established Delaware canons of statutory interpretation:

Dennis v. State, 41 A.3d 391 (Del. 2012): When statutory text is unambiguous, courts apply the statute’s literal meaning without resort to extrinsic aids. This case supplied the interpretive baseline for reading “never” and “openly” by their ordinary meanings.
Eliason v. Englehart, 733 A.2d 944 (Del. 1999): Reinforces that unambiguous text controls and requires application of the plain meaning.
Riad v. Brandywine Valley SPCA, Inc., 319 A.3d 878 (Del. 2024): Confirms that statutory interpretation is reviewed de novo. The Court exercised that de novo review to correct the Family Court’s initial two-year framing while ultimately affirming the outcome.
Long v. Division of Family Services, 41 A.3d 367 (Del. 2012): Establishes standards of review—legal rulings are reviewed de novo; if the Family Court correctly applied the law, remaining review is for abuse of discretion; factual findings stand if supported by the record and not clearly erroneous. The Court applied these standards in upholding the Family Court’s factual determination that Oscar never openly held out the child as his own.

The Court also anchored its analysis in the relevant statutes within Delaware’s UPA:

13 Del. C. § 8-204(a)(1): Establishes the marital presumption—children born during a marriage presumptively have the husband as the father.
13 Del. C. § 8-201(b)(1): The father-child relationship is established by an unrebutted presumption under § 8-204.
13 Del. C. § 8-607(a): Sets a two-year limitations period for bringing a proceeding to adjudicate parentage where a presumed father exists.
13 Del. C. § 8-607(b)(1): Provides an exception permitting challenges “at any time” if (a) the presumed father and mother neither cohabited nor engaged in sexual intercourse during the probable conception window, and (b) the presumed father “never openly held out” the child as his own.

Legal Reasoning

The Supreme Court proceeded in two steps: interpretive clarification and application to the record.

First, the Court clarified the statutory terms:

“Never” is unambiguous and means “not ever” or “at no time.” The Court expressly rejected confining the “holding out” inquiry to the initial two-year period after birth. The analysis necessarily spans the entire timeline up to the litigation because if the presumed father publicly represented paternity at any time, the exception in § 8-607(b)(1) is unavailable.
“Openly” means publicly, or free from concealment, exposed to general view or knowledge. An “open” holding out is a public-facing representation, not private or ambiguous conduct.
“Hold out” means to represent a fact to be true. In the parentage context, the presumed father must have represented, in a public-facing way, that the child is his child.

Second, the Court applied those meanings to the facts:

The parties did not dispute that Mother and Oscar neither cohabited nor had sexual intercourse during the probable time of conception. That satisfies § 8-607(b)(1)(a).
The contested element was § 8-607(b)(1)(b)—whether Oscar never openly held out Audrey as his own. Though the Family Court initially “focused” on the first two years after birth, the Supreme Court viewed the entire record and determined that the conclusion still stands.
The Family Court’s core factual finding—that “from the time Audrey was born, [Oscar] acted as Zoe’s father and [Lafferty] acted as Audrey’s father”—was supported by the record. Oscar described his caretaking of Audrey as a function of his role as Zoe’s father; he picked up both girls, provided for both on his custodial days, and occasionally referred to Audrey as his “youngest daughter” or “Zoe’s sister.” The Court treated these statements in context as reflecting caretaking within a sibling-care framework rather than a public claim of paternity.
Administrative acts by the Mother—listing Oscar on daycare or gymnastics paperwork—did not constitute Oscar’s public representation of paternity, and thus did not defeat the “never openly held out” requirement.

On this record, the Supreme Court held it was not clear error to find that Oscar never publicly represented Audrey to be his child. Accordingly, the exception in § 8-607(b)(1) applied, and Lafferty’s petition could proceed outside the two-year window.

Impact

This decision provides authoritative guidance on two foundational issues under Delaware’s UPA:

Temporal scope decisively resolved. Courts must examine whether the presumed father ever openly held out the child as his own, not merely within two years after birth. Practically, this means presumed fathers remain capable of foreclosing the exception by publicly acknowledging the child at any point; conversely, their failure to do so leaves the door open for biological fathers to bring parentage actions “at any time,” provided the no-cohabitation/no-sex requirement is also met.
“Openly” is a public-facing standard. Private caregiving, ambiguous references, or administrative listings by someone else do not inherently amount to “openly holding out” the child as one’s own. Practitioners should develop evidence of public representations—such as social media posts, public introductions, official school and medical records where the presumed father himself designates or signs as father, religious ceremonies, public acknowledgments at family or community events, or legal documents reflecting paternal claims.
Strategic behavior going forward.
- Presumed fathers who wish to preserve the two-year bar should make timely, public, and consistent acknowledgments of paternity.
- Biological fathers seeking to use § 8-607(b)(1) should build a record that the presumed father avoided public representations of paternity throughout the child’s life, not just in the early years.
- Mothers cannot create “open holding out” by proxy; the statute focuses on the presumed father’s conduct and representations.
Custody and parentage are distinct. The Supreme Court’s order adjudicated parentage; custody and placement determinations (e.g., best-interests analysis) remain separate inquiries that may follow once legal parentage is established.
Stability versus truth-of-parentage. Delaware’s framework balances the marital presumption’s stability with biological reality, but this decision emphasizes that stability gives way where the presumed father has never publicly embraced the child as his own and where conception conditions under § 8-607(b)(1)(a) are met.

Complex Concepts Simplified

Presumed father: By law, a husband is presumed to be the father of a child born during the marriage. This presumption provides initial legal parentage unless rebutted.
Adjudicated parentage: A court process that determines the child’s legal parents. This can solidify, rebut, or reassign legal parentage based on statutory criteria and evidence.
Two-year limitations period (§ 8-607(a)): Generally, actions to adjudicate parentage when a presumed father exists must be filed within two years of birth, encouraging early resolution and stability.
The § 8-607(b)(1) exception (“at any time”): This is a carve-out from the two-year limit. If (a) the presumed father and mother did not cohabit or have sexual intercourse during the probable conception period, and (b) the presumed father never publicly claimed the child as his own, then a parentage action may be brought at any time.
“Openly held out”: Requires public-facing conduct by the presumed father representing the child to be his child. It is not satisfied by private caregiving, ambiguous remarks, or forms completed by others. The touchstone is public representation, “exposed to general view or knowledge.”
Standards of review: Legal interpretations are reviewed de novo. If the trial court correctly states the law, the appellate court defers absent abuse of discretion. Factual findings stand if supported by the record and not clearly erroneous.

Conclusion

The Delaware Supreme Court’s decision in Kelly Oscar and Jack Oscar v. Larry Lafferty establishes a clear interpretive rule for § 8-607(b)(1)(b): “never” means “at no time,” and “openly” means publicly. Courts must evaluate whether the presumed father ever publicly represented the child as his own—not just within the first two years after birth. Applying these principles, the Court affirmed that Lafferty could adjudicate parentage “at any time” because the record supported the finding that Oscar never openly held out Audrey as his child and did not cohabit or have sexual intercourse with Mother during the probable time of conception.

This opinion fills a gap in Delaware parentage law by defining the content and scope of “openly held out” and harmonizing the two-year limitations period with its statutory exception. Going forward, litigants and courts have clearer guidance: the exception turns on the presumed father’s own public conduct, evaluated across the child’s life, and not on private caregiving or unilateral administrative acts by others. The ruling will shape both litigation strategies and real-world family decisions about public acknowledgment of parentage in Delaware.