July 11, 2006

posted by Deven Desai

Although the court says that it is a gender-neutral theory, others in the blogosphere have pointed out that it will usually only apply to men. (Women tend to have fewer chain of custody issues with eggs, fetuses, etc.) However, would this theory apply in the rare, but horrible, "switched at birth" cases? Say CoupleA gives birth to BabyA at the UVa hospital at the same time that CoupleB gives birth to BabyB(hypothetically). BabyA and BabyB are switched. Let's say that three months later, CoupleB are tragically killed in an accident, but BabyA survives. CoupleA is told that BabyB is not their baby, but BabyA is. Can either parent of CoupleA disclaim BabyB? Would estoppel preclude them from avoiding the obligations of raising both babies? (I believe in the actual case, in which the revelation took place some time later, CoupleA seemed perfectly willing to raise both children, and that might be the likely response in most, but not all, couples.) If FatherA found out he was not the biological father of either BabyA or BabyB, would he have a stronger argument to disclaim parentage to either baby? According to this theory, he might be able to disclaim his wife's baby, but not the stranger's baby.

The law is so interesting!

By the way one study seems to show that when a father is pretty certain about paternity the rate of finding non-paternity is low (median 1.7%) but when the father has questions about paternity the rate is high (median 29.8%).

Several years ago I read (or maybe heard on the Discovery Channel) about a study that tested the ability of fathers to detect paternity. What I can remember: people were given pictures of infants in the first months after birth and at some older age, and asked to determine whether the child looked more like the father or mother. Older children were judged to be equally likely to look like either parent. But infants were heavily skewed towards looking like Dad.

The researchers suggested this is an evolved survival feature: babies that didn't look like dad in the first 24 hours tended to be tossed into the camp fire or bashed into the cave wall at a high rate. I would guess different genes control facial resemblance at various stages of growth, and only the infant ones were selected for paternity recognition.

I have just one hypothetical: what if the (presumptive) father has no reason to doubt paternity until a few years down the road?

Example: A wife has an affair but covers it up. She passes the baby off as her husband's. Five years later the other man confesses the affair to the husband in a fit of remorse, who then has a DNA test performed and finds that he is not, in fact, the child's father. Is he then estopped from denying paternity?

The majority opinion holds that, "he may either put the doubts aside and initiate a parental relationship with the child, or insist on a scientific test of paternity before initiating a parental relationship," but in this example the husband had no doubts and thus no opportunity until well after initiating the parental relationship.

Does the husband's financial situation matter? What if the couple weren't very well off and the baby was an onerous burden he felt honor-bound to bear? Now that the child is known to not be his own is he still subject to the burden?

If five years is too much, is four? two? one? Where is the line to be drawn?

John,

You've identified the glaring problem I see with this decision -- it encourages a defrauding mother to do the best job she can to make sure the defrauded man has NO doubts that the child is his. It's almost as if this decision encourages sublimely executed deception -- if you trick him thoroughly, the jurists seem to say, we'll guarantee that you get your child support payments for the next 18 years.

The only avenue of protection suggested to the man by this decision is to remove any and all doubt that he is the father of the child. The only way to do this is to demand a paternity test. And of course, this action shakes the foundation of trust upon which marriages are built (as pointed out by a previous commenter), runs completely counter to a man's natural instinct to trust his wife, and may even be prohibited by separate privacy legislation that prohibits a paternity test unless the mother consents!

This decision encourages paternity fraud and, despite the panel's stated interest in protecting the "best interests of the child," will harm countless children yet to be born by making it less likely that they will know their true fathers.

JR

Seems to me there's three issues. The desire to punish the fraud of the mother (ASSUMING it was intentional -- otherwise, the mother's "bad behavior" is nothing more than sleeping around, and the only reason to punish it would be heavily retrograde beliefs about the sexuality of women), the desire to avoid an unfair financial injury to the father, and the desire to provide for the needs of the child. They are not, however, irreconcilable.

In a case where the mother actually committed fraud, there's no reason in principle why the guy couldn't get a money judgment for the amount of child support paid, enforceable only on the child's 18th birthday and against the mother.

It seems to me that the majority is being extremely dishonest. This case is about money. It is not, contrary to what the majority suggests, about the child's "psyche" or the relationship between putative father and child. Neither the legislature nor the court can force the "father" to have any relationship with the child -- indeed, as the dissent points out, there is no such relationship any longer in this case. This is just about whether the court can extract support payments from the non-father for the next 18 years.

It's clear that it's in the "best interest of the child" to have more money, but it's hard to see how that naked fact can justify the decision.

Paul,

I agree, the three are not irreconcilable. But the one thing I never understand is why, in cases in which the mother actually--beyond any doubt--committed fraud, people feel that restitution is sufficient punishment?

Fraud is fraud is fraud! Restitution serves to make the victim financially whole -- but there need to be punitive measures as well just like there are to punish and deter other forms of fraud.

Remember, the man here has been emotionally devastated by learning that a child he has bonded with and raised as his own is not his (though the courts often characterize the relationship prior to the discovery as "enjoyment" for the man in order to mitigate the crime of the mother). The biological father has been deprived of years of participating in his own child's life. Paternity fraud is a crime that deeply, deeply harms it's victims (bio dad, cuckold, and children), and yet few states have any laws against it.

As far as how to compensate the children for the emotional devastation the mother has caused them by preventing them from knowing their real father? That's a good question.

I have a response to much of the discussion, but as it draws on Freakonomics by Steven Leavitt and Stephen Dubner I have sent an email to Leavitt in case he has thoughts he is willing to share. If he does not respond, I will take a crack at seeing where the ideas may intersect once I have retrieved the book from home. (Hint: I think the question relates to Christine's point and the points about when the father should be involved or wants to be involved).

Re: Paul's "the only reason to punish [the fraud of the mother] would be heavily retrograde beliefs about the sexuality of women" and also Christine's query about a "wife" situation.

I don't think we can conflate spousal and non-spousal "paternity fraud" cases. I doubt the Court of Appeals, especially given its other recent newsworthy ruling, would say fidelity IN MARRIAGE is "heavily retrograde." The instant case was of course non-spousal.

You can make an argument that in a spousal situation, a wife might be in a worse situation. One might think it is ironic that a defrauding wife would have less right to child support than someone one "dated." But I don't think it's ironic for two reasons. First is the analogy between trusting fiduciaries and arm's length dealing. Second is the idea, prevalent in divorce battles, that there is a kind of fairness of result owed each party to a marriage contract.

By contrast, the Court of Appeals could be defended here as saying, we're not going to create special rights for non-marital (non)parents who could have protected themselves by (a) getting a DNA test, or (implicitly under my theory) (b) by being married and thus entitled to trust a fiduciary without a DNA test.

This defense does rely on a somewhat traditional (a more neutral term than retrograde) notion of trust in marriage, but is thus at a piece with the Court's conclusion that the state constitution does not compel same-sex marriages.

Actually, married fathers are in an even worse situation than the father who was forced by the New York Court of Appeals to pay child support for a child he was falsely told was his.

For married men, there is a legal presumption that any child borne to the wife during marriage is his, even if DNA tests prove to the contrary. (A few states, like Ohio, Georgia, Maryland, and Virginia, allow that presumption to be rebutted after evidence of fraud is unearthed).

So if you want fidelity from your partner, you may actually be worse off getting married than just shacking up an "living in sin," since there's no legal presumption that children your girlfriend conceives while living with you are yours, whereas if she marries you, they're deemed yours even if their the product of adultery.

And under no-fault divorce laws, your wife can leave you at any time and collect alimony and child support for the child that really isn't yours. (Not surprisingly, given such legal incentives, about two-thirds of all divorces are initiated by the wife over the husband's opposition).

It's ironic, but the justices in the majority, who effectively stripped an entire gender (men) of its right not to be a parent (a right that women, by contrast, continue to enjoy under the Roe v. Wade, Skinner, and Griswold cases), include the very justices who objected to New York State law not allowing gays to marry. I guess they think that while it's not OK to discriminate against a small percentage of the population (gays), it is OK to discriminate against 50 percent of the population (men), even though gender-classifications are supposed to be subject to tough judicial scrutiny (see Craig v. Boren (1976)).

This ruling has a slippery slope, at the bottom of which is making ex-step-parents continue to be responsible for child support after a divorce, as the dissent points out.

That would discourage anyone from agreeing to be a step-parent, harming the best interests of children, the very justification given by the majority for its warped result.

I have heard that the Australian family courts have done just that: forced ex-step-parents to pay child support, even as the custodial parent simultaneously milks the natural father for child support, under the theory that a step-parent assumes obligations to a child (even one with two parents) by being a step-parent.

Men certainly do not, and should not, have the right to compel an abortion.

But outside the abortion context, they do have a constitutional right not to be made a parent against their will, and the U.S. Supreme Court has never suggested that they are barred by their gender from the general right rooted in the Fourteenth Amendment to procreate or not procreate.

The New York Court of Appeals has clearly violated that right.

Couldn't this problem be solved by mandatory paternity testing for all children at birth? This would probably be a good thing for a number of reasons -- it would establish ab initio legal parental responsibilities and, also, would provide an excellent data base for the tracking of genetic material (and disease).

JustaThought,

And where does the privacy rights of the child come in? Is big brother going to be watching everyone in the future?

With mandatory paternity testing, what do we do with false positives and false negatives? Do you really want to ruin previously happy, trusting marriages? "The baby isn't yours. Oops, it is; our bad."

mythago: With mandatory paternity testing, what do we do with false positives and false negatives? Do you really want to ruin previously happy, trusting marriages? "The baby isn't yours. Oops, it is; our bad."

Although we typically think of this problem in terms of paternity, it's also quite possible to have false negatives for mom.

I lied and cheated many years ago and now I wonder about the child's paternity. I am a deceitful person, but I do know that eventually what goes around comes around. Could the real father show up someday and then my fraud issues will come to light? Can I get into trouble for extortion? Please write to me.

what ever is on the birth certificate is what sould be used to determine if the man should pay or not

what ever is on the birth certificate is what sould be used to determine if the man should pay or not

what ever is on the birth certificate is what sould be used to determine if the man should pay or not ha ha ha ha

I am married and currently in separation and divorcing my husband (on the grounds of spousal abuse & battery). I live with another man and I am pregnant with his child. There is possible that the divorce from my husband will not be finalized until the baby is born. All 3 of us know that this baby does not come from the marriage because there was no cohabitation with my husband for a year. Will there be a problem to put his real father's name on its birth certificate (because I am married to someone else) if its born during marriage? I am from Virginia.

If there us any dubt about whether you are the natural father, then you should speak up from day one. As the saying goes, momma's baby, daddy's maybe. To be the proud father for years on end, and then split up, and claim that the child is not yours is just not right. I agree that if you have played the proud daddy, then you should be made to pay as the proud daddy after the relationship ends. It is not the child's fault, and they should not have to suffer the loss of their father due to him not having the balls to inquire about true paternity. Yes, the mother will lie and defraud the unsuspecting man in some cases, but she can only get away with it if he allows her to. If they are married and there is no reason for him to think it is not his, then that is another problem. But what does that say about a man, if after they split up, he does't want to pay for a child that he has raised and cared for as his own. What does it say about the dead beat man to walk out on a child for whatever reason, after loving and providing for that child before the doubts arose. A DNA test does not change the fact that you love a child and that child loves you. It's all about the money, first from the lie, then from the moment he claims it's not mine at the end of the relationship. It's all about the MONEY!

PATERNITY FRAUD REAWARDS DEADBEAT DADS AND HURTS GOOD FATHERS WHO HAVE TAKEN RESPONSABILITY FOR THE CHILDREN THEY BELIEVED TO BE THEIRS. VICTIIMIZING A MAN IN THIS WAY, IS AS EMOTIONALY DEVESTATING AS RAPING A WOMAN AND FORCING HER TO CARRY AND RAISE THE OFFSPRING FROM THAT VIOLENT ACT. A MAN IS LEFT UNABLE TO HEAL, BOMBARDED WITH GUILT AND SHAME, AND LEGALY BOUND TO SOMEONE ELSE'S CHILD.

PUTTING ASIDE THE VICTIMIZATION OF A MAN, THIS IS AN UNSPEAKABLE CRIME THAT HARMS A CHILD AND SHOULD BE PUNISHED WITH A LL THE SEVERITY OF THE LAW.
IT'S DISGUSTING , AND CRIMINAL WHEN A WOMAN SACRAFICES HER CHILD EMOTIONALY, AND PSYCOLOGICALLY FOR A FEW BUCKS AMONTH.
AS A MOTHER I CONSIDER THIS A HORRIFFYING FORM OF CHILD ABUSE, IT LEAVES THE CHILD DEVESTATED. REJECTED BY THE ONLY FATHER SHE'S EVER KNOWN, UNABLE TO FROM ANY BOND WITH HER REAL FATHER, AND SOLD TO THE HIGHEST BIDDER BY MOMMY.

AS FOR THE PERSON WHO ATTEMPTED TO MINIMIZE THIS ISSUE WITH THEIR "WHAT'S A FEW BUCKS A MONTH ANYWAY?" MENTALITY- ASIDE FROM THE FINANCIAL DEVESTATION THAT 18 YEARS OF CHILD SUPPORT ( THINK DOWNPAYMENT FOR A HOME). WHAT ABOUT THE VICTIM'S OWN BIOLOGICAL CHILDREN SUFFERING? YES FINANCIALLY AND LEGALLY THE REPURCUSIONS ARE HARSH BU, THE MENTAL AND EMOTIONAL DAMAGE THAT CAN COME FROM DISCOVERING THAT THE SYBLING THEY LOVE , HAS NO REAL BIOLOGICALCONNECTION TO THEM. CAN BE UNSURMMOUNTABLE.

PUNISHING THIS OUTRAGEOUS CRIME HAS NOTHING TO DO WITH PUNISHING A WOMAN FOR SEXUAL PROMISCUITY-( HEY IF YOU KNOW HOW TO ENJOY LIFE -- MORE POWER TO YOU)- IT HAS TO DO WITH WHAT WE OWE OUR CHILDREN. THE LAST TIME I CHECKED SELLING YOUR CHILD TO THE HIGHEST BIDDER,, IS A CRIME WITH SEVERE LEGAL CONSEQUENCES, GIVING THEM AWAY TO THE DADDY WHO CAN MAKE THE HIGHEST CHILD SUPPORT PAYMENTS SHOULD BE TOO.

IT IS TRULY SAD, THAT AFTER ALL WE HAVE GONE THROUGH TO REACH THE GENDER EQUALITY WE HAVE TODAY, OUR LEGAL SYSTEM AND OUR SOCIETY PERPETUATES THIS CRIME. BY DOING THIS WHAT ARE WE TEACHING OUR CHILDREN ABOUT HONESTY, INTEGRITY, RESPONABILITY,AND SELF SUFFICIENCY? WHAT ARE WE TEACHING THEM ABOUT HOW WE VALUE THEM IN OUR SOCIETY. IT ALL COMES DOWN TO $$$$$$$$,IN FRONT OF THE EYES OF A BLIND COURT SYSTEM, AND A SELF SERVING, CHILD SERVICE BEAUROCRACY.

BUT I GUESS IF YOUR AN UNSCROUPULOUS MOTHER WHO DOESN'T MIND HAVEING A STRANGER BATHE, AND PUT YOUR CHILD TO BED-- IT'S THE PERFECT CRIME! AFTER ALL, WHAT OTHER CONARTIST GETS TO GET AWAY WITH THIER CRIME WITH IMPUNITY, AND IS GUARANTEED FUTURE INSTALMENTS FOR MANY, MANY, YEARS? WHO CARES IF YOUR CHILD'S PSYCHE'S WELL BEING SUFFERS?

I am doing research while I await the paternity test that I recently took with my soon to be 6 year old son. I love him dearly, yet scared of the outcome that the rumors are correct and my wife of 12 years lied to me and he is not my son. What can I do? How should I feel? How can the justice system expect a man to believe his wife yet ask for a partenity test? I have finally gotten to courage to find out if my son is mine, blood wise. In my heart he will always be my son, however, this test brings doubt to my older boys as we have three boys during our marriage. What can I do, the courts will make me pay. However, if a woman lies, and decits her husband is the husbands fault, he should have asked for a paternity test. If the man cheats and has a child outside of his marriage, he pays too and of course the wife has grounds for divorce. I can't wait for my divorce to be final, hopefully in the next three months, but God knows how scared I am to receive the test results within the next few days.

I am 4months pregnant and i told my then boyfriend within the first 5 weeks abt the pregnancy.He was never happy abt the pregnancy and that's when we started to fight.Now at fourth month he is saying he will see after the baby is born if its his child as he can not be sure what i was doing with him.Before his denial he told mi he will voluntarily pay maintenance fr the child but will never be a father meaning he will never play the father figure.Can I compell him to test partenity during pegnancy or shud wait till baby is born.

Some of you are completely blowing this out of the water. There is another side to the issue of paternity by estoppel. My daughters father has never been a part of her life. I am seeing a man right now that is a father figure in her life. If her biological father stays out of her life for another year or so he will lose all rights over his daughter due to paternity by estoppel. In this instance I think it is important that there is such a clause that will prevent her biological father coming into her life and destroying her very existence.

I was wondering if there is anyway to have your biological fathers name put on your birth certificate. I am 28 and married. I was born in AL, my mother got married a week before I was born and put her husbands name on my birth certificate. I have gotten in contact with my biological father and was wondering if there is any way of putting his name on my birth certificate and how to go about doing it if it is possible.

If a man is forced to pay for a child not his own that he discovers thru the process of divorce is not his own, he might still never take part in a relationship with this child. This will make the child feel guilty about being born and being a "trouble to his parents",even if the child only knows one parent.
Likewise, it will make the child's mother look like a whore to the child, and this will harm the relationship when she doesn't tell the little one just who the real father is (presuming she even knows who it is).
Women must be MADE to see and understand both through their upbringing and through the Courts that the only way to help the child is through telling the truth. And the Courts should be forced to see this also!Where is the benefit to a child in enforcing a relationship where is IS NONE?
It benefits NO ONE to force an unwilling man to continue in a relationship, financial or otherwise with a child where there is no feeling for it on the part of the man. The major hurt though, goes to the child.
The child gets caught in the middle of two warring "adults" willing to wage an emotional war using the little one as a pawn! Does the Court mean to say that their "enlightened rulings" mean to allow for this??? I do NOT think so!!!
And they do not! JUST tell the truth and let the courts make the decision. And guys: if you even THINK that she's been with another person, then let her know and get down to brass tacks the right way; head-on and to the point!
Let her know what you think. The truth hurts no one, but does serve to help the baby.And you will be showing both the woman and the baby respect; respect enough to tell them both what you think, believe and your need to find the truth.
Afetr all is said and done; you DON'T trust her! So what's the harm in asking the question? And if you have to "keep it on the down low" for reasons of legalities (serving divorce paper, changing the locks, divvying up the bank accts, etc)okay then! Do what you gotta and expedite it all! But always, take care of number one" first.

I'm a recent divorcee & also an ex-stepfather of a soon to be 6yr.old for whom i have raised & cared for the 1st 5yrs.of his life.his mother is engaged to a man who recently got out of prison & as of 1.5yr.ago his bio-father has gotten split custody!My ex-stepson is seeing a psycologist(go figure!!!)Right before my divorce I went to several of his appts.His bio-father & stepmom refused to show up!Fortunately my ex-wife brings him by to see me as well as his "grammy",my mother who lives next door.He almost always ask if he can spend the night with his grammy & daddyjeff & ever since my ex got a fiance she tells him NO!I as well as my mother thinks that is a little harsh considering everything he's been through & continues to go through such as going to his fathers & stepmums 1 week & then his mothers house the next week & occasionally the babysitters!I really wish I had some legal rights over him because it seems like when he's here at my house or next door at his grammys'he feels comfortable & relaxed (at ease)I do remember the 1 school night a year ago he spent here he got right out of bed and said "BOY DADDY I REALLY GOT A GOOD NIGHTS SLEEP!"I gave him a hug & asked him what he wanted for breakfast & he said I get my breakfast in school as he raced upstairs to use the bathroom & brush his teeth.After he did that he got himself dressed & asked his grammy if she would take him to school.His grammy did take him to school & I rode along to take him to his class room.Later that day his mother called & thanked me for getting him to school.This boy is a good kid who will always be a son to me no matter what! He told me shortly after my wife left me that his father told him "after u & mommy get an avorce you won't be my stepdad anymore" holding back his tears!I put my arm around my stepson & said"He should'nt have told you that!,you should'nt even know what divorce means.let me ask you a question.Do YOU want me to be your stepdad? he said"I want you to be my daddy,forever!"It took everything I had not to shed tears!I just said "then I will be as long as you want me to be!I thank GOD everyday i'm still fortunate to still be a somewhat big part of my ex-stepsons life!