Fatherhood, DNA and the Law

Recently a man was ordered to continue paying child support even though it was proven that he is not the father of the child. Here’s how I heard it on NPR:

A young man had a girlfriend. She became pregnant and told him that the child was his. He “does the right thing” and accepts paternity. He pays child support for years. Then he’s finally able to afford a paternity test. The child is not his. He sues to discontinue child support on the grounds that it’s not his child. The courts decided that since he had been paying child support, that makes him the father.

This, to me, seems unfair. Based on the story as I heard it, he was falsely and deliberately named the father. Since the case has been decided, he has no recourse there; but I’m wondering, hypothetically, how he would fare if he sued for damages arising from fraud? That is, if he could prove that the girl deliberately named him the father, or if she withheld the fact that he may not have been the father (which probably came out in the original case), could he successfully sue her for fraud? He may still have to pay child support, but could he win a settlement such that the woman would have to repay the amount he’s already given her, plus an amount equal to the amount he would pay until the child turns 18? What about bringing a suit against the actual father?

Is it fair that, having supported a child in good faith under the assumption of paternity, a man would have to continue to pay child support after he finds out that the child is not his and that he challenged the child support immediately after learning this? Who’s at fault here?

Suppose a man is convited of murder and is sentenced to death (or if you prefer, convicted of rape and is sentenced to a long prison term)? If DNA or other evidence proves beyond all doubt that he is not guilty of the murder (or rape), should he fulfill the sentence (or be executed) because he’d been sitting in prison for so long that he’s now considered the person who committed the act?

IIRC the case involved a relationship that resulted in a pregnancy and the couple then married or remained together for some years. After the couple separated, the father found that he was not the genetic father. The judgement was based on the fact that a parental relationship had built up between the father and the child, and that in law, once parental responsibility has been accepted, denying it subsequently because of a DNA test would be unjust for that child.

But what about justice for not-the-father? He accepted a responsibility based on a falsehood. The mother cheated on him and he’s been paying for something he didn’t do. The biological father gets off scot-free, and the mother is getting money from a person who is not responsible for her pregnancy.

It would be different if not-the-father knew that the child was not his. Then he would have given “informed consent” to supporting the child. If he knew that the child was not his, my guess is that he would not have become the virtual father and he wouldn’t have to pay.

Not-the-father is the injured party. Having cheated on him and lied to him, if the woman wants child support she should get it from the biological father.

The argument goes:

1/Parental relationships are important. Once entered into they must be respected
2/The ‘father’ entered into a parental relationship and so gave implied undertakings to the child by implicitly accepting it as his.
3/Although he was mistaken about the biological facts of the case, the social ‘facts’ - relationships- were considered to be more important.

I am more comfortable with a system of justice which puts a sense of fairness in social relationships before ‘scientific’ facts about the world.

The father implicitly gave up his rights to walk away from the child by accepting parental rights and responsibilities; later finding of ‘fact’ cannot change this.

Pjen is quite correct on the rationale for the law as is. But keep in mind that definitive paternity tests have only become possible at all in the last decade, and the law developed at a time when, as is sometimes still said, “Maternity is certainty. Paternity is probability.”

There’s also the consideration that a child needs to be supported. Sometimes, the ex-daddy will be able to identify the child’s actual father, but many times, he will not. There would be terrible consequences to the child if we were to take away her financial support without being able to ensure that someone would take up the slack.

I suspect that we’ll see these laws start to change, at least in limited circumstances. There have been bills in front of several states legislatures to allow late challenges to paternity, though I don’t think they’ve been successful yet.

“Maternity is certainty. Paternity is probability.”

It doesn’t seem unreasonable to expect the mom to have at least a clue as to who the real father is, even if she gets it wrong at first guess.
The rights of the actual father are also being ignored here. Perhaps the woman should be obligated to seek the guy out and pay reparations for depriving him of the joys of fatherhood ?

Put yourself in this man’s position. How would you feel if you were the one who was lied to and was forced to pay for a child you did not want (which would be your responsibility if you actually were the father) and which turns out not to be yours? Would you say, “Oh, okay. I was cheated on, lied to, and I’ve been paying money out for a child whose conception I had no part of; but I’ll keep paying so this woman I care nothing about can have her life at the expense of mine.”?

Yes, parental relationships must be respected; but they should not be used as a means of extortion.

Into which he probably would not have entered into if he had been told the truth. His acceptance was based on his being the biological father.

And what relationship now exists? He’s a money machine. His visitations (if any) are tainted by the undercurrent of his non-fatherhood. Now that he knows the child isn’t his and that he is probably very resentful of being made the butt of his girlfriend’s infidelity, what sort of message may be passed on to the child? It could be that he’ll love it unconditionally, but it seems that he entered into a the relationship out of a sense of obligation, not love. Can a child sense it if not-the-father is thinking, “You’re a drain on me that I don’t deserve,” or, “I’ve been betrayed!”? Also, I wouldn’t say that he was “mistaken” about paternity. He was deceived.

It seems to me that the court is saying that the woman bears no responsibility for her deception and her promiscuity and that the biological father bears no responsibility for helping to create this child. The court is saying, “You’re a nice guy who tried to do the honourable thing, so you’re the one who will have to suffer. You have no rights.”

What? She can’t get a job? (You know, where you perform a function and get money for it.) No, I guess that’s too easy. Better to have some patsy give you money. And what about the biological father? He doesn’t have a job? He can’t get one? What about welfare and Aid to Families with Dependent Children?

I understand what you’re saying about the law; but the law is supposed to be fair, and this seems patently unfair.

FWIW I have no ulterior motives here. I’ve never gotten anyone pregnant (although I’d like to, after marriage – I should live so long). I just think the Scales of Justice are out of balance.

In reply to some of the points raised by Johnny LA:

1/ Whether or not the father was actually the biological father, he had acted this way for a number of years and this then set up a relationship with the girl that in most societies is seen as unbreachable- parenthood. Individual ‘fairness’ to the ‘father’ is seen as less important than the fairness to the child; after all, the father accepted his state with regard to the girl for a number of years. The law declines to breach this relationship in order to merely re-order a financial relationship. Tough on the guy for having to keep paying, but it would be even worse for the child should her parental support be withdrawn.

2/ The Child was IIRC only six or seven when this happened (I think that it was in England) and the financial reposibility of the father would extend to eighteen or to the end of college education.

3/ If it was decided under Englsh Law, there is a major difference in legal tenets of Parental Law between England and the US. The Children Act states clearly that the rights of the child are paramount. The court would only decide parental matters on the interests of the child; the ‘rights’ of the father to avoid future payments would not be given great weight. There is a general tendency fo English Law as it has developed in gradual separation from the common roots with US Law to give dreater attention to non-pecuniary matters- US Law is more often given to financial balancing as in a business relationship whereas English Law often decides on non-financia grounds.

In summary, Law can only reflect the mores of teh society in which it operates (although often it only reflects those of the powerful ruling group). If society believes that the rights of innocents are more important than the technical rights of adults, then the above decision is understandable. If the society has a major concern with the possession of money being fair, then the decision for which you are arguing would seem more likely. On this as on many other social issues, I am more comfortable with a socially based decision rather than a financially based one.

And BTW, the same argument goes for fatherhood as for lega-fiction fatherhood:

DEAD BEAT DAD- I didn’t really man to get her pregnant, she could have got an abortion. Why should I pay, it isn’t really my responsibility.

DNA BEAT DAD- I didn’t really mean to become a father to this child (now that I know she’s not biologically mine), my ex can seek support from the ‘real’ father. Why should I pay, it isn’t really my responsibility.

The law in both cases is saying, Fatherhood is Fatherhood, no excuses!

I’m with Johnny LA on this.

I understand that the law wants to see whats best for the child. And I’m down with that. But…

The women and scandalous sperm donors in our little scenario get off scott free while good, stand-up guys take it in the ***, with the State’s blessing. That should never happen.

I want to see some legal consequences for those who have acted without integrity.(like that’s gonna happen) If the good guy has to pay child support for 18 years for someone else’s child, the mom should at least have to do 6 months for fraud, and he should have some recourse against the sperm donor. This is a pipe dream of course, but it wuld be nice.

Suing the real dad for the dough is actually not a bad idea at all, spooje. I suspect it would even work, and under existing law at that. I don’t, however, know whether anyone has ever tried it.

It wouldn’t work all that werll where I live Minty. Here the voluntary parent’s obligations are not at all subordinate to the biological parent. Suing the real father simply means that both have to pay support.

One factor about this law people haven’t mentioned is that it makes women with children into poisen. It only takes a year of contributing to the welfare and maintenace of a child to create an obligation that lasts until they are 18 or even older if they are students or unable to support themselves.

I know of no jurisdiction in the country that would impose child support obligations on two separate fathers, Ned, so I’d be interested to see anything you have that says that’s how it would work where you live.

Here’s how I think it would work. Just as in the OP, Not-Dad is ordered by the courts to pay child support because he’s accepted the kid as his own for many years, even though DNA says he ain’t Daddy. So Not-Daddy sues Actual-Daddy because Not-Daddy is paying an obligation that, by rights, ought to be his. This is not an action to determine paternity, which is the thing that Not-Daddy is estopped from denying. It’s a tort suit (or maybe one sounding in quasi-contract) to recover for an obligation that Not-Daddy has incurred on Actual-Daddy’s behalf. Not-Daddy is still liable at all times for the support of the kid, but Actual-Daddy can be made to pay back Not-Daddy for the payments.

Like I said, I don’t know that anybody has actually tried this. But I know that judges are aware of the difficult circumstances Not-Daddy is in, and I bet they would be quite open to the possibility of making Actual-Daddy pay up, since Not-Daddy’s suit does not muck about with the concerns about family stability that led to child support in the first place.

Minty, I just finished looking at this casually for a close friend who is currently in that situation. He is, after just over a year living together, being sued for child support where the biological father already pays. I am in Canada by the way.

It will be interesting to see how the case plays out as the new child support guidelines mean he could even have a larger monthly obligation than the amount that could be construed as the contribution which is being argued to have made him liable in the first place.

I haven’t got the cites saved but if its important to you I would be happy to dig up a case or two discussing the principles.

My recollection on the case includes this twist: The not-father believed he was the father, and lived with and supported the child by choice for several years. Then he and she separated, and he refused to pay child support, not because he believed he was not the father but because he was a jerk. It was not until later that the DNA thing came up.

Perhaps that doesn’t make it right, I don’t know. I just remember the guy on Howard Stern and thinking he really was a jerk.

I gotta tell ya, Ned, that seems awful darned bizarre to me. I just can’t imagine anything like that ever happening in the States, unless this is a breach of contract suit due to an explicit promise to pay for the child’s upkeep. But I don’t know anything about Canadian family law, so I’ll be happy to take your word for it.

This issue just won’t go away. It keeps coming up on this board (find the links yo damn self ;)), and it keeps coming up in court. I think there are enough consitutional implications that this will eventually come up to the Supreme Court.

My take on this is – the only thing that has changed once a DNA test is taken is the knowledge level of the father. So what? He could have had that knowledge earlier, and choose not to.

The father in the case in the OP had an opportunity to challenge paternity, when the child was born. The fact that the dad didn’t think he had a reason to challenge paternity is irrelevant - he voluntarily waived that right. And waiver of a right does not equal denial of a right.

So, in point of fact, this father has not been denied anything, and did voluntarily enter into a paternal relationship. The simple fact that he voluntarily entered into that relationship based on an untested assumption is immaterial.

This makes sense both in law and morality. Let’s take another example - you (assuming you knew/know your dad, etc.). Your father has assumed all of his life that he’s your father. But he doesn’t know.
Let’s say, at age 15, you needed a bone marrow transplant or something similar. Dad volunteers and gets checked to see if he is a suitable donor. It turns out he is not, and further, he is not your biological father. This would certainly affect his relationship with your mother, but why should it affect his relationship with you? He’s been the only father you’ve ever known. Would your father have a moral leg to stand on if he were to cut you off? My personal moral code does not allow for the harming of an innocent, and I think most people share that morality. In this case, you are the innocent.

Sua

Here’s a question for the lawyers on the board. Do any States still have the ‘presumption of paternity’. As I understood it, if a child is born in wedlock, the paternity of said child cannot be challenged in court by the ‘father’. Does this still go, or did I completely misunderstand?

You misunderstand. AFAIK, all the states have rules about “presumed fatherhood,” but they act as a bar to people other than the presumed father challenging paternity. The presumed father himself can challenge paternity if he acts within a certain time–under section 6 of the Uniform Parentage Act, it has to be “within a reasonable time after obtaining knowledge of relevant facts, but in no event later than five years after the child’s birth.” Local laws may vary, but that’s probably a decent guide to the general state of the law in the U.S.

It seems the “father” in the OP acted “within a reasonable time after obtaining knowledge of relevant facts”, but how long after the child’s birth was it?

Thanks, minty green!