Marital Presumption as an Absolute Bar Under the AUPA When the Husband Persists: Ex parte Jarrod Sessions

1. Introduction

Case: Ex parte Jarrod Sessions, Supreme Court of Alabama (Jan. 23, 2026), petition for writ of certiorari to the Court of Civil Appeals, arising from Jarrod Sessions v. Brittany Richey (DeKalb Circuit Court: DR-22-900112; Civil Appeals: CL-2023-0432).

Parties: Jarrod Sessions (putative biological father/petitioner) sought to adjudicate paternity of a child born to Brittany Richey (mother/respondent). Brittany Richey’s husband, Andrew Richey, was listed on the birth certificate and persisted in the marital presumption of paternity.

Background: Brittany and Andrew Richey divorced (June 2021) and remarried (May 9, 2022). The child was born July 7, 2022. The child was conceived when Brittany was not married. Sessions filed pre-birth (May 29, 2022) to establish paternity and custody; Brittany counterclaimed for DNA testing and child support, but later moved to dismiss on the ground that she was married to Andrew at the time of birth and Andrew persisted as presumed father.

Key Issue: Whether a man alleging biological paternity may maintain a paternity action under the Alabama Uniform Parentage Act (“AUPA”) when the child is born during the mother’s marriage to another man who persists in the presumption of paternity—especially where the putative father argues he can qualify as a “presumed father” (including via pre-birth conduct).

2. Summary of the Opinion

The Supreme Court of Alabama affirmed the Court of Civil Appeals, upholding dismissal of Sessions’s paternity petition. The Court held that the controlling authority is Ex parte Presse, 554 So. 2d 406 (Ala. 1989), not the plurality decision in Ex parte Z.W.E., 335 So. 3d 650 (Ala. 2021).

Under Presse and the AUPA’s statutory scheme—particularly the marital presumption and the persistence rule—the husband’s presumption prevails when the child is born during the marriage and the husband persists in his legal status. Consequently, whether Sessions could establish a competing presumption (including via pre-birth conduct) was deemed irrelevant in this posture.

The Court also noted that Sessions raised a constitutional argument only briefly, and certiorari was not granted on that issue; it was therefore not properly before the Court.

3. Analysis

3.1 Precedents Cited

Ex parte Presse, 554 So. 2d 406 (Ala. 1989) (controlling)

The Court treated Ex parte Presse as decisive. Presse addressed the “dispositive issue” of whether an alleged father has standing to establish paternity of a child born during the mother’s marriage to another man where the husband “persists in the presumption.” Presse held the alleged father cannot initiate such an AUPA action in those circumstances.

Crucially, the Sessions Court emphasized Presse’s reasoning on conflicting presumptions and the statutory command that the presumption “founded upon the weightier considerations of public policy and logic” controls. The Sessions Court read Presse as establishing a categorical rule: even if the alleged biological father could fit a “presumed father” category, the marital presumption controls when the husband persists.

Ex parte Z.W.E., 335 So. 3d 650 (Ala. 2021) (distinguished as non-dispositive here)

The trial court and Court of Civil Appeals relied on the plurality in Ex parte Z.W.E., which addressed whether “child” under the AUPA includes an unborn child, affecting whether pre-birth conduct can create a presumption under § 26-17-204(a)(5). The Supreme Court, however, held that question is not dispositive in a “husband-at-birth who persists” scenario because Presse forecloses the action regardless.

This is a doctrinal clarification: Z.W.E. may matter in cases without a persisting marital presumed father, but it does not matter when Presse applies.

Michael H. v. Gerald D., 491 U.S. 110 (1989) (policy/constitutional backdrop)

The main opinion referenced Presse’s reliance on Justice Scalia’s plurality discussion in Michael H. v. Gerald D. regarding social and legal traditions protecting the marital family. Justice Cook’s special concurrence further invoked Michael H. to reject Sessions’s due-process framing (while raising policy and equal-protection concerns).

R.D. v. S.S., 309 So. 3d 146 (Ala. Civ. App. 2020) (policy critique in concurrence)

Justice Cook cited R.D. v. S.S. as an illustration of how a rigid persistence rule can operate harshly—where the biological father may be the only stable paternal figure yet still be blocked if the marital presumed father persists. Although not part of the main holding, its inclusion signals judicial awareness of real-world tensions and potential legislative pressure.

Ex parte C.A.P., 683 So. 2d 1010 (Ala. 1996) (progeny referenced)

Justice Mendheim (concurring in the result) characterized § 26-17-607(a) as the legislature “ensconcing” Presse and its progeny, including Ex parte C.A.P., reinforcing that Alabama’s statutory parentage regime is intentionally aligned with Presse.

Other authorities referenced on procedural/precedential posture

  • State v. Boys & Girls Clubs of S. Alabama, Inc. (cited by Justice Shaw for the proposition that plurality opinions are not binding precedent).
  • Moore v. State (cited by Justice Shaw similarly).
  • Dykes v. Lane Trucking, Inc., 652 So. 2d 248 (Ala. 1994) (cited by Justice Mendheim regarding inadequate constitutional briefing).

3.2 Legal Reasoning

(a) The statutory architecture: marital presumption + persistence rule

The Court grounded its decision in the AUPA’s provisions:

  • § 26-17-204(a)(1): A man is presumed father if he and the mother are married and the child is born during the marriage. Andrew meets this presumption because he was married to Brittany at the child’s birth.
  • § 26-17-204(b): If conflicting presumptions arise, the one founded upon “weightier considerations of public policy and logic” controls. The Court read Presse as effectively resolving the balancing in favor of the marital presumption in the husband-persists scenario.
  • § 26-17-607(a): If the presumed father persists, “neither the mother nor any other individual may maintain an action to disprove paternity.” This is the AUPA’s “persistence bar,” and the Alabama Comment expressly states it “follows Ex parte Presse.”

(b) Why Presse makes Z.W.E. irrelevant on these facts

Sessions’s litigation strategy focused on demonstrating presumed-father status via pre-birth conduct under § 26-17-204(a)(5), and on urging the Court to reject the plurality analysis in Ex parte Z.W.E. that limited that pathway. The Supreme Court responded that this entire debate does not change the outcome: even if Sessions could establish a presumption, Presse requires the marital presumption to prevail when the husband persists.

In effect, the Court treated the presence of a persisting marital presumed father as a threshold condition that forecloses the putative father’s claim regardless of competing presumptions or proof of biology.

(c) Constitutional arguments: expressly not reached as a certiorari issue

The main opinion declined to consider the AUPA’s constitutionality because certiorari was not granted on that ground. The concurrences nevertheless reveal fault lines:

  • Justice Cook agreed due-process challenges fail under the logic associated with Michael H. v. Gerald D., but questioned the policy and hinted that equal-protection concerns could arise.
  • Justice Mendheim emphasized that Sessions’s constitutional argument, to the extent it mattered, was inadequately developed.

3.3 Impact

(a) Doctrinal clarity for Alabama courts

The decision clarifies that in “child born during marriage + husband persists” cases, Ex parte Presse controls and the contested issue in Ex parte Z.W.E. (whether “child” includes an unborn child for pre-birth presumed-father status) does not affect the outcome. Trial courts can dismiss earlier and with more confidence when § 26-17-607(a) is triggered.

(b) Practical consequences for putative biological fathers

The ruling reinforces a strong gatekeeping function: a putative biological father cannot obtain genetic testing or adjudication if the marital presumed father persists, even where biology is undisputed or conceded by the mother. It also incentivizes litigation over whether the husband “persists” (and what conduct constitutes persistence) because that becomes the decisive factual pivot.

(c) Legislative pressure and judicial signals

Two special concurrences (Justices Cook and McCool) explicitly questioned whether Presse is sound policy and called attention to scenarios where the rule forces courts to treat as legally true what all parties know is biologically false. Justice Cook urged legislative reexamination and suggested a more fact-sensitive, rebuttable marital presumption model.

While the Court applied existing law, the concurrences may be read as an invitation for legislative reform rather than judicial revision—especially given that § 26-17-607(a) is understood as codifying Presse.

4. Complex Concepts Simplified

  • “Presumed father”: A legal status created by statute based on defined circumstances (e.g., marriage at birth, being named on the birth certificate, receiving the child into one’s home and holding the child out as one’s own). It is a shortcut to legal parentage without immediate proof of biology.
  • “Marital presumption” (§ 26-17-204(a)(1)): If the mother is married at the child’s birth, her husband is presumed the father.
  • “Persisting” (§ 26-17-607(a)): If the presumed father continues to accept/maintain his legal status as father, others are barred from bringing actions to disprove it. Persistence functions as a legal shield against third-party paternity challenges.
  • “Conflicting presumptions” (§ 26-17-204(b)): Sometimes multiple statutory presumptions could point to different men. The statute says courts should choose the presumption supported by “weightier” public policy and logic. Sessions reads Presse as having already chosen the marital presumption as the “weightier” one whenever the husband persists.
  • Plurality opinion vs. controlling precedent: A plurality opinion lacks a majority rationale and is typically not binding as precedent. The Court here bypassed the debate about Ex parte Z.W.E.’s precedential force by deciding the case on Presse, which is a majority decision.

5. Conclusion

Ex parte Jarrod Sessions cements a practical rule for Alabama parentage litigation: when a child is born during a marriage and the husband persists in his presumed-father status, Ex parte Presse and § 26-17-607(a) bar a putative biological father’s paternity action—even if the putative father claims an alternative presumption (including one grounded in pre-birth conduct).

The decision narrows the operational significance of Ex parte Z.W.E. in this common fact pattern, while the concurring opinions highlight growing discomfort with the rigidity of Alabama’s persistence-based marital presumption and underscore that any modernization is likely to come from the Legislature, not the courts.