Presumption of paternity vs DNA
In the most recent edition of Findlaw's Writ, Prof. Joanna Grossman of Hofstra University School of Law argues that the Florida court of appeals ruled correctly when it "held that a man can, against his will, be deemed a father and obliged to support a child born to his wife during their marriage, despite the fact that the two have no biological or adoptive relationship." (Joanna Grossman, Paternity Misrepresentation: A Florida Court Rules That a Husband Waited Too Long to Disprove Fatherhood, and Reaffirms His Status as the Child's Father, Writ, December 27, 2005). I respectfully disagree.
The presumption of paternity is an ancient rule that arose in the context of a particular scientific reality: paternity could not be proven with certainty. Circumstances have changed dramatically, however: now certainty *is* possible. It would seem, therefore, that the presumption is obsolete. A rule that would choose fiction over fact seems to me unjustifiable.
To her credit, Grossman does not dispute that the original justification for the rule is no longer valid. She argues, however, that the presumption should remain applicable, on the basis of a justification that had lain the background but that should now move to the fore: that the "best interests" of the child are served by enforcing the presumption against contrary DNA evidence and the husband's interests.
From a formal standpoint, the argument is not invalid, because it is not inherently illogical to argue that the interests of the child can sometimes trump those of his or her parents. Nevertheless, a heavy burden lies on those who would argue that the best interests of the child should trump the rights of a cuckolded husband. Given the importance of the issue, I would have expected this argument to be developed to some length. Instead, however, Grossman disposes of it in one sentence:
"While it is easy to see Richard's side of the story here, let's not forget another party's side: As the Parker court noted, disestablishment of paternity might satisfy Richard, but would likely also trigger 'the psychological devastation that the child will undoubtedly experience from losing the only father he or she has ever known.'"
At best, this is a woefully inadequate discussion. But in addition, the justification seems wrong - why would we *ever* suppose that the child will not otherwise find out that the "father" is not his or her biological parent? It would seem that in typical circumstances, the child is almost certain to find out - and it is THAT discovery, and not the judicial determination of paternity, that would cause "psychological devastation". The causal nexus is clearly missing here. No court decision can force a father to love a child that is not his.
In sum, it seems to me that the rule followed by the Florida Appeals Court is obsolete and should be jettisoned: instead, it should have held that a father's right to rebut the presumption of paternity is not defeasible.
And yet... what to do about the child support payments? That is another matter altogether. In THAT context, the interests of the child are much stronger. The key here is to disaggregate the fact of paternity from the obligation to pay child support.
As a matter of public policy, it is much less objectionable to tell a man that, even if a child is not biologically his, he must pay child support if the child was born during his marriage. After all, the man's decisions were to some degree voluntary, whereas the child's are clearly not. There is a residual degree of unfairness here, of course, because the cuckolded husband is likely to resent having to make the payments. But having a financial liability for child support payments does not infringe on his rights to the same extent as having to live with a court order saying that he is the father of a child that is not his.
Moreover, there are ways to mitigate the unfairness: for example, the biological father could be brought in as a third party, declared the father, and ordered to make the child support payments, and so on... (if he were unable to pay the full amount, the husband might have to make up the difference, but again, these are adults, and with respect to finances, the child's interests should come first).
In the most recent edition of Findlaw's Writ, Prof. Joanna Grossman of Hofstra University School of Law argues that the Florida court of appeals ruled correctly when it "held that a man can, against his will, be deemed a father and obliged to support a child born to his wife during their marriage, despite the fact that the two have no biological or adoptive relationship." (Joanna Grossman, Paternity Misrepresentation: A Florida Court Rules That a Husband Waited Too Long to Disprove Fatherhood, and Reaffirms His Status as the Child's Father, Writ, December 27, 2005). I respectfully disagree.
The presumption of paternity is an ancient rule that arose in the context of a particular scientific reality: paternity could not be proven with certainty. Circumstances have changed dramatically, however: now certainty *is* possible. It would seem, therefore, that the presumption is obsolete. A rule that would choose fiction over fact seems to me unjustifiable.
To her credit, Grossman does not dispute that the original justification for the rule is no longer valid. She argues, however, that the presumption should remain applicable, on the basis of a justification that had lain the background but that should now move to the fore: that the "best interests" of the child are served by enforcing the presumption against contrary DNA evidence and the husband's interests.
From a formal standpoint, the argument is not invalid, because it is not inherently illogical to argue that the interests of the child can sometimes trump those of his or her parents. Nevertheless, a heavy burden lies on those who would argue that the best interests of the child should trump the rights of a cuckolded husband. Given the importance of the issue, I would have expected this argument to be developed to some length. Instead, however, Grossman disposes of it in one sentence:
"While it is easy to see Richard's side of the story here, let's not forget another party's side: As the Parker court noted, disestablishment of paternity might satisfy Richard, but would likely also trigger 'the psychological devastation that the child will undoubtedly experience from losing the only father he or she has ever known.'"
At best, this is a woefully inadequate discussion. But in addition, the justification seems wrong - why would we *ever* suppose that the child will not otherwise find out that the "father" is not his or her biological parent? It would seem that in typical circumstances, the child is almost certain to find out - and it is THAT discovery, and not the judicial determination of paternity, that would cause "psychological devastation". The causal nexus is clearly missing here. No court decision can force a father to love a child that is not his.
In sum, it seems to me that the rule followed by the Florida Appeals Court is obsolete and should be jettisoned: instead, it should have held that a father's right to rebut the presumption of paternity is not defeasible.
And yet... what to do about the child support payments? That is another matter altogether. In THAT context, the interests of the child are much stronger. The key here is to disaggregate the fact of paternity from the obligation to pay child support.
As a matter of public policy, it is much less objectionable to tell a man that, even if a child is not biologically his, he must pay child support if the child was born during his marriage. After all, the man's decisions were to some degree voluntary, whereas the child's are clearly not. There is a residual degree of unfairness here, of course, because the cuckolded husband is likely to resent having to make the payments. But having a financial liability for child support payments does not infringe on his rights to the same extent as having to live with a court order saying that he is the father of a child that is not his.
Moreover, there are ways to mitigate the unfairness: for example, the biological father could be brought in as a third party, declared the father, and ordered to make the child support payments, and so on... (if he were unable to pay the full amount, the husband might have to make up the difference, but again, these are adults, and with respect to finances, the child's interests should come first).
posted by Tulio | 5:05 PM
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