PR 01015.005 Arkansas

A. PR 00-061 Arkansas State Law on Application of Lord Mansfield's Rule

DATE: January 28, 1999

1. SYLLABUS

Since July 2, 1989, Arkansas no longer follows the Lord Mansfield Rule

2. OPINION

This memorandum responds to your request for our opinion as to whether the State of Arkansas follows Lord Mansfield's Rule in light of Ark. Code Ann. §16-43-901 (Michie 1994 Repl.); and whether Programs Operations Manual System (POMS) GN 00306.026, which lists whether a state follows Lord Mansfield's Rule, needs to be updated. In our opinion, Arkansas has not followed Lord Mansfield's Rule since July 2, 1989, the effective date of Ark. Code Ann. §16-43-901. A proposed revision of POMS GN 00306.026 is provided herein.

As discussed in POMS GN 00306.025A, Lord Mansfield's Rule bars a biological mother and her husband at the time the child is conceived from giving testimony that might prove that the child is illegitimate. See Thomas v. Pacheco, 740 S.W.2d 123, 124-125 (Ark. 1987). Prior to the passage of section 16-43-901 of the Arkansas Code, Arkansas followed Lord Mansfield's Rule. Id. at 124 (Arkansas Supreme Court refused to abandon the Rule in 1987, noting that it had been followed in Arkansas since 1915).

Section 16-43-901 of the Arkansas Code pertains to the competency of witnesses to testify in any court proceeding or administrative hearing in which paternity or child support is or may become an issue./ Among other things, a biological mother may provide direct testimony as to who is the biological father, the time and place of conception, access by her husband or the putative father, and any other matters necessary to the establishment of paternity or a support obligation of the child. Ark. Code Ann. §16-43-901(a). The husband of the biological mother may testify as to the period of cohabitation with the biological mother, a period of nonaccess with the biological mother, and a date of separation from the biological mother. Id. at §16-43-901(b). The putative father may testify as to a period of cohabitation with the biological mother, a period of nonaccess with the biological mother, and a lack of sexual contact with the biological mother. Id. at §16-43-901(c). The effective date of the statute was July 2, 1989./

Clearly, the passage of section 16-43-901 of the Arkansas Code did away with the adherence to Lord Mansfield's Rule in Arkansas./ The purpose of the section is to enable the courts to receive into evidence relevant facts concerning the paternity of a child. Id. at §16-43-901(g)(1). A biological mother may provide direct testimony as to who is the biological father of her child, which would have been barred under Lord Mansfield's Rule. Id. at §16-43-901(a). See Gallagher v. Wade, 1995 WL 745051 at 3-4 (Ark. App. 1995)(not designated for publication)(court noted that testimony of biological mother that would bastardize the child would be admissible under Ark. Code Ann. §16-43-901).

Thus, we believe that POMS GN 00306.026 should be modified. We recommend that POMS GN 00306.026 for the State of Arkansas be changed to read as follows:

Arkansas Does not follow the rule, effective 7/2/89.