Comments:Who's Your Daddy?

Please note: I am updating this post as comments are received, so check back for updates. This is turning out to be a very interesting discussion.

There are many thoughtful comments to the Who's Your Daddy? post that I would like to highlight, so they are not overlooked. Would anyone like to weigh in on the side of the presumption of paternity in favor of a husband? Or should it depend on whether there is a bio-dad who is willing to step up to the plate financially and emotionally? What role should "best interests of the child" play?

From Bill Ross: Paternity cases are an everyday occurence throughout the United States, so what makes this story so unique? There are a couple of reasons why this story is ripe. First, it shows that law makers are finally taking notice of a growing problem - paternal fraud (only after a great deal of lobbying though). Second, it demonstrates that illegitimacy no longer carries a societal stigma (which is way overdue, for the child is innocent).

More and more women are having affairs, which can and does often result in the birth of an illegitimate child. In most cases, the affair is usually the result of a weakening marriage versus uncontrolled sexual impulses. It's been proven over and over again that the majority of such pregnancies result from lengthy affairs, whereas a child born from a "one night stand" represents a miniscule proportion. However, when a wife's fraud is detected they usually claim the latter, and the husband being unaware of the affair is usually unaware of the marital problems; so he unknowingly accepts the explanation (the lesser of two evils). Correspondingly, most women who engage in affairs, which have a child from the affair, recognize the loopholes in the law. These women know they can rely on the "presumption of paternity" in many states, which gives fathers the unenviable task of fighting long and costly legal battles. Remember, deception is intrinsic to an affair.

Rawes' article raises many questions: Why don't women divorce their husbands if they're not happy? Why don't we make DNA tests mandatory at the hospitals? Why have so many legislators been slow to change the laws? Why don't the wives consider everyone involved? Why don't the women consider the biological fathers?

The last question is the most interesting. Too long society has assumed the biological father prefers to disappear, which is not always the case. Mothers who commit paternity fraud against their husbands are also commiting fraud against the child's biological father.

From Chuck Smith: DNA tests have been traditionally used by mothers to hold fathers accountable, yet a new trend is emerging. The legal community is noticing a rise in the number of putative fathers using DNA results to establish parentage. Increasingly, this is a trend among cases regarding untruthful mothers.

Consider when a married woman conceives as the result of an extra-marital affair, especially when the marriage has already produced children. The mother usually prefers the willing biological father to remain a mystery. In many instances the mother deceives her husband, yet in some cases the husband knows (and actively participates in the deception).

Mothers who find themselves in such circumstances usually claim it is in the best interest of the child not to know the father. However, both psychology and science reveal a child's healthy development is increasingly improved with the participation of both biological parents. Not to mention, is it fair to the father or child to exclude the natural father? Moreover, is it healthy or moral to deceive the child? The scenario is increasingly disturbing when the husband participates in the deception.

There are many biological fathers who desire to be exactly what they are -- "fathers". The idea that only mothers use DNA results is a notion that should be dispelled. Trends increasingly demonstrate natural fathers are now using DNA tests/results to prove, establish, and maintain their rights as fathers. The idea of men proving their fatherhood with DNA results may initially seem foreign, however it's the new trend around the world. The days of married women claiming they are in intact marriages and natural fathers should be denied their natural "God given" rights are quickly disappearing.

Overwhelmingly, evidence concludes that children conceived as the result of an extra-marital affair can not and should not be considered the result of an intact marriage. The law and common sense should defend this as the truth. There should be no question that children are born "out of wedlock" when conceived as the result of an extra-marital affair.

Scientists, i.e. through DNA testing, have given us a tool to determine the truth regarding our offspring, and such a tool should be used in all cases where paternity is questioned. This should include and not be limited to cases where the mother and father are married, but should include cases when the father and mother are unmarried and in cases where the mother is married to another man besides the real father.

Our legal system is based on truth and justice. Isn't it about time the truth, as revealed through DNA, determines the identity of both willing and unwilling fathers? The trends say it is happening!

From Todd K. Bolus: I've been thinking that it might be wise to simply require the hospitals to do a DNA match of all at birth. In those cases where the parties are married or committed/involved, it would foreclose late, heartbreaking surprises.

The other statutory change I'd look for is that no decree for paternity could be entered without a DNA match. While an uncooperative paternity defendant could be subject to a temporary order, he could terminate it by showing that the DNA doesn't match.

And, from Nikki Stein: Although Todd's first idea initially seems very appealing, requiring DNA tests at the hospital may create less than desirable effects. Requiring mandatory DNA testing, i.e. after conception, would create all types of constitutional questions. Without question, medical utility would need to be proven before legislators would inact or even consider such a bill. And even adopting a Pollyanna outlook won't convince us that such a law would deter women from having affairs. Rather, mandatory DNA testing would probably increase the number of aborted pregnancies. Very few will think this is a viable solution, at least in Kentucky.

The second idea Todd presents is much more viable. The increasing workload of our judicial branch could create the legs needed to get such a bill through the legislature. But this approach even creates numerous problems. For example, would a bill of this nature need to be retroactive? If so, how far back?

Something must be done, for too many lives hang in the balance. The most important being the child.

One solution is to convince and educate mothers about the harmful effects of paternity fraud. And provide support systems when women find themselves in these difficult situations. Finally, the best solution is for mothers to tell the truth! We can't expect our children to tell the truth if we don't set the example.

Marcia Oddi has posts on putative fathers at Indiana Law Blog, N.Y. High Court Says Mistaken Avowal of Fatherhood Imposes an 'Equitable Paternity' and Documents trump DNA in Illinois paternity suit. Indiana has a putative father registry.

Michael Stevens of Kentucky Law Blog comments:Family law is tough because the choices hard, the emotions high, and the consequences grave for all concerned.

First, the mother presumably knows or would have reason to suspect the paternity of the child is not conclusive just because of the presumption of conception during wedlock.

Second, allowing that presumption to continue to thrust obligations and responsibilities on the non-biological dad also allows for the creation of an emotional attachment that goes both ways with the child and the non-biological father.

Third, the Kentucky decisions thus far have their blinders on by simply analyzing it as the dealings with mom and non-biological dad such that the presumption exists until rebutted, and if there is a paternity action by the mom against the non-biological dad or during the divorce then the resultant decree constitutes res judicata on these two people as to the parentage. And, it is not uncommon for the non-biological dad to acquiesce or not challenge the determination. A creation of legal rights and responsibilities upon which the child has no input.

Fourth, this happy little deception then can go assunder when the truth is outed and the non-biological father has been the victim of a fraud, and the biological dad has been the victim of a deceptive silence.

Now, legally speaking the focus has always been on the relationship between the mom and non-bio dad as to support and custody issues as they relate to the three. Since the paternity action or divorce action may constitute a determination of the custody and support issues relative to mom and non-bio dad, it is not necessarily a legal 'termination' of the biological dad's status as the bio-dad as may be the case in an adoption. Since bio-dad was never aware of his child, it can't be said he is estopped or has otherwise waived his parental status over that child, and thus any actions by mom (either one-sided or collusively with the non-bio dad) are not binding on bio-dad (eg., a wrongful death action?).

This outing of the real paternity is a devastating situation for all concerned, but as Todd Bolus suggests should a DNA test be de rigeur in all legal actions which possess legal determinations of paternity (eg., divorce, custody, paternity, etc actions)? The upside is a medically conclusive determination greater than the law's presumption of paternity. The downside is the outing of an issue which can affect multiple families, parents, step-siblings, etc.

However, the facts are what they are with few divorces having no emotional trauma for those concerned.

Although Kentucky's courts have recognized that these divorce and paternity proceedings have more legal baggage than what we usually encounter, they have not ventured into that area yet. For example, non-bio dad and mom may allow the fiction to function, but sooner or later the child has rights and is entitled to know his or her 'real' father. Furthermore, any decision by the putative parents to 'off' the bio-dad should not be binding on the bio dad. What if the child dies and there is a wrongful death action? There can only be one father, and which one is it? And what if the child has step-siblings through the bio-dad? A tangled web we weave once we start to deceive.

And by "off", I do not mean a fatality but simply removing him legally, emotionally, geographically, and knowingly.

Hard facts make hard decisions, but they do not get any less hard as time goes by, they simply get ignored.

Editor's note: The notion that a child can only have two parents is subject to debate: Legal Rights Of Three Parents Over One Child Recognized By Ontario Court of Appeals

From Amanda Hash: Defining the best interest of a child should be our main focus when considering the birth of an illegitimate child. And this is exactly what our justices are required to do when evaluating the best interest. One problem is the best interest persistantly changes from case to case. Time is usually the main culprit behind such changes. Regardless, justices are faced with the difficult task of considering every relevant factor.

And determining a childs best interest includes many important variables. How old is the child? Does the child have sibilings? Is the husband aware of the infidelity? How long has the husband been led to believe he is the bio-dad? Is the bio-dad part of the picture? Does the bio-dad want to be the father? And on and on the questions can be asked.

But what if the secret is discovered or revealed quickly, i.e. within the first year? A scenario in which the courts are dealing with an infant (cases of this nature should seem much simpler?). For even the brightest attorney would be hard pressed to argue that it's not in the infants best interest to establish a loving relationship with the bio-dad when such dad desires a relationship. In addition, it's presumed the mother will seek support from the bio-dad once the husband begins divorce proceedings. But even infant cases include twists.

It seems discovering the truth early should eliminate many difficulties, but what if there are siblings and/or the husband wants to stay? What if the husband wants to remain married knowing DNA reveals he's not the father? Many husbands desire to maintain a facade to save face? What if a pychological bond has been formed or the husband wants to exact revenge? Whatever the case, should the truth be hidden from the child if the bio-dad wants to be the child's father? Most rational human beings say no! It's hypocrisy of the highest magnitude when society says a bio-dad has no rights, for society continually desires/forces fathers to be accountable.

Our scenario has all the ingridients of a Lifetime movie. It includes an untruthful mother/wife, an illegitimate infant, siblings (presumably near the age of the infant), a husband, and a bio-dad. What do you do if you're a justice determining the best interest of a child whom everyone wants? Hopefully her job, i.e. the justice, is made easier by adults who are sophisticated enough to act like adults. This means adults who desire to do what is best for the child. Unfortunately, this rarely happens.

The research of child psychologists and other child experts maintain it is repeatedly shown a healthy relationship with the natural father is in the childs best interest. These and other studies continue to support the importance of the genetic connection between father and child (even more important when the child is a boy). Family counsellors report that it is in everyone's benefit to reveal the truth early. Waiting until the children reach pre-adolescence or adolescence can cause irreparable damage, for both the illegitimate child and sibilings. At this point physical disimmilarities become profound and questioned by siblings. How does the mother deal with the deception then? One doesn't even need to imagine the emotional scars and trauma this causes. And what happens if the husband decides to pursue a divorce because the physical changes continually remind him of the infidelity?

The answer is seen repeatedly among successful nuclear families. Everyone swallows their pride. This is done because the childs best interest is at stake. The child should make abandoning pride easy.

Jeanne Hannah at Updates In Michigan Family Law has written more on this topic than anyone in the blawgospehere:
Parentage Issues: Here We Go Again!
Why We Need a Federal Putative Father Registry
Acknowlegments of Parentage: Can They Protect Parent-Child Relationships?
Barnes v Jeudevine: How to Deprive a Child of a Father
Can a putative father protect his parental rights by filing a Notice of Intent?
How can a man protect his paternity rights if the mother wants to place the child for adoption?
Another Look at Paternity Issues: This time Boyfriend has Standing to Sue
What Rights Does an Unwed Biological Father Have When a Mother Wants to Give up a Child for Adoption?
What are the Rights of a Biological Father if the Mother is Married to Another Man?

Like Michigan, Kentucky has not adopted the Uniform Parentage Act.

From George Alen: According to the "Duped Dads..." article the mother has a child and knows it is not her husband's child, which makes it paternity fraud. The husband initially presumed his paternity but later believed this to be incorrect. Upon suspicions the child was not his, the husband divorced the wife and got a DNA test or vice versa.

But in order to show fraud the mother must already have some type of knowledge or conclusive evidence, validating the husband was not the father, whereas demonstrating fraud actually took place. Let's assume the mother has said knowledge, which clearly illustrates fraud. Possibily the knowledge is based on blood types. But can the mother be held culpable for fraud if in fact she was uncertain herself (if blood types did not determine paternity)?

Let us speculate a bit further. What if the mother and biological father conducted DNA testing (proving the husband is not the father)? Then there is strong evidence indicating fraud. If the biological father petitions the courts in a timely manner, then fraud falls squarely on the mother.

This takes us to the comments of previous posters. Once the mother knows the husband is not the father, i.e. from DNA results, the child is considered an "out of wedlock" child. Even though the child was born during wedlock the child was conceived with another man making the child "out of wedlock". Subsequently making the biological father the putative father.

But if the husband contends under the "presumption of paternity" the child can not be considered "out of wedlock," then who is the putative father? If it is after the husband is made aware that another man is clearly the father (based on DNA testing conducting by the mother and biological father), then the biological father is indeed the putative father. This is even more convincing if the blood typing excludes the husband. Therefore, if the husband contends he is the putative father when DNA says he is not the father, then the husband is committing paternity fraud.

It seems paternity fraud can yeild its ugly head in many different ways. In its most basic form fraud is deceit.

Aren't you glad The Kentucky Chapter of the American Academy of Matrimonial Lawyers in hosting its 10th annual seminar April 19-April 20, 2007 in Louisville? Highlighting the roster is Prof. Mary M. Beck, Missouri University Law School presenting "Fathers' Registries - Why Every State Needs One" and "Putative Fathers or Pop Up Pops." This one will sell out quickly. Check back mid-February for an online brochure to register.