Hypothetical situation: a married woman becomes pregnant by a man other than her husband. If she decides to keep the child (and lets assume her husband knows the whole story) is the childs biological father obligated to pay child support?
In most states, the woman’s husband will be presumed to be the father. The mother, the true father, or sometimes her husband (especially if they get divorced) can rebut the presumption. Once paternity is established, the lover will be required to pay child support.
ftg
October 24, 2005, 4:18pm
3
There was an infamous case regarding this in Florida a couple years ago. A man found out “his” kids were really another guys. Divorce ensues, the ex moves in with the biological father. The guy is still stuck with child support payments. The case went all the way to the SCOTUS. He’s still stuck paying money to someone else’s kid.
Think of having a kid when married as de facto adoption. It’s yours from then own, DNA tests don’t matter.
It is up to each state to change its laws to have DNA overrule common law, but don’t hold your breath.
ftg:
There was an infamous case regarding this in Florida a couple years ago. A man found out “his” kids were really another guys. Divorce ensues, the ex moves in with the biological father. The guy is still stuck with child support payments. The case went all the way to the SCOTUS. He’s still stuck paying money to someone else’s kid.
Think of having a kid when married as de facto adoption. It’s yours from then own, DNA tests don’t matter.
It is up to each state to change its laws to have DNA overrule common law, but don’t hold your breath.
Here is more than you ever wanted to know about Florda paternity and parentage law. http://www.law.fsu.edu/journals/lawreview/frames/262/altetxt.html
Here is an excerpt from the current Florida statute on DNA test results in paternity cases:
742.12 Scientific testing to determine paternity.–
(1) In any proceeding to establish paternity, the court on its own motion may require the child, mother, and alleged fathers to submit to scientific tests that are generally acceptable within the scientific community to show a probability of paternity. The court shall direct that the tests be conducted by a qualified technical laboratory.
(2) In any proceeding to establish paternity, the court may, upon request of a party providing a sworn statement or written declaration as provided by s. 92.525(2) alleging paternity and setting forth facts establishing a reasonable possibility of the requisite sexual contact between the parties or providing a sworn statement or written declaration denying paternity and setting forth facts establishing a reasonable possibility of the nonexistence of sexual contact between the parties, require the child, mother, and alleged fathers to submit to scientific tests that are generally acceptable within the scientific community to show a probability of paternity. The court shall direct that the tests be conducted by a qualified technical laboratory.
(3) The test results, together with the opinions and conclusions of the test laboratory, shall be filed with the court. Any objection to the test results must be made in writing and must be filed with the court at least 10 days prior to the hearing. If no objection is filed, the test results shall be admitted into evidence without the need for predicate to be laid or third-party foundation testimony to be presented. Nothing in this paragraph prohibits a party from calling an outside expert witness to refute or support the testing procedure or results, or the mathematical theory on which they are based. Upon the entry of the order for scientific testing, the court must inform each person to be tested of the procedure and requirements for objecting to the test results and of the consequences of the failure to object.
(4) Test results are admissible in evidence and should be weighed along with other evidence of the paternity of the alleged father unless the statistical probability of paternity equals or exceeds 95 percent. A statistical probability of paternity of 95 percent or more creates a rebuttable presumption, as defined by s. 90.304, that the alleged father is the biological father of the child. If a party fails to rebut the presumption of paternity which arose from the statistical probability of paternity of 95 percent or more, the court may enter a summary judgment of paternity. If the test results show the alleged father cannot be the biological father, the case shall be dismissed with prejudice.
http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=Ch0742/SEC12.HTM&Title=->2005->Ch0742->Section%2012#0742.12
ftg:
There was an infamous case regarding this in Florida a couple years ago. A man found out “his” kids were really another guys. Divorce ensues, the ex moves in with the biological father. The guy is still stuck with child support payments. The case went all the way to the SCOTUS. He’s still stuck paying money to someone else’s kid.
Do you happen to know the name of the SCOTUS case?
Kimstu
October 24, 2005, 5:44pm
8
I think ftg might be thinking of the “paternity fraud” case brought by Carnell Smith of Georgia in 2002, but SCOTUS declined to hear the case.
astro
October 24, 2005, 5:55pm
9
According to the class I took on California law (YSMV) last semester, child support is based on legally established paternity. Marriage and DNA testing are both valid ways to establish paternity, and DNA testing overrides marriage. That is, if a married woman has a child, it’s assumed to be the husband’s. But if testing proves otherwise, the husband has to battle the biological father in court to be determined the father of the child. If he wants to be the father, that is.
Gfactor
October 24, 2005, 6:36pm
11
astro:
The story
Well, there it is. But this is a bit different.
Case law is pretty clear that once a court has determined the issue of paternity, the parties may only relitigate the issue under very limited circumstances.
http://www.divorcesource.com/research/dl/paternity/98sep169.shtml (some courts recognize a fraud exception; others don’t. Many impose time limits on fraud claims).
Ohio is another state where paternity appears to be irrefutably and permanantly legally conferred on the wife’s husband, regardless of the biological father.
Gfactor
October 24, 2005, 10:35pm
13
Ohio is another state where paternity appears to be irrefutably and permanantly legally conferred on the wife’s husband, regardless of the biological father.
Only if the wife was artificially inseminated:
§ 3111.95. Recipient’s husband considered natural father; status of donor.
(B) If a woman is the subject of a non-spousal artificial insemination, the donor shall not be treated in law or regarded as the natural father of a child conceived as a result of the artificial insemination, and a child so conceived shall not be treated in law or regarded as the natural child of the donor. No action or proceeding under sections 3111.01 to 3111.18 or sections 3111.38 to 3111.54 of the Revised Code shall affect these consequences.
http://onlinedocs.andersonpublishing.com/oh/lpExt.dll/PORC/14e97/15367/1553b/15561?f=templates&fn=document-frame.htm&2.0#JD_311195; and see , O.R.C. 3111.03(B) (which says exactly that):
§ 3111.03. Presumption of paternity.
(A) A man is presumed to be the natural father of a child under any of the following circumstances:
(1) The man and the child’s mother are or have been married to each other, and the child is born during the marriage or is born within three hundred days after the marriage is terminated by death, annulment, divorce, or dissolution or after the man and the child’s mother separate pursuant to a separation agreement.
(2) The man and the child’s mother attempted, before the child’s birth, to marry each other by a marriage that was solemnized in apparent compliance with the law of the state in which the marriage took place, the marriage is or could be declared invalid, and either of the following applies:
(a) The marriage can only be declared invalid by a court and the child is born during the marriage or within three hundred days after the termination of the marriage by death, annulment, divorce, or dissolution;
(b) The attempted marriage is invalid without a court order and the child is born within three hundred days after the termination of cohabitation.
(3) An acknowledgment of paternity has been filed pursuant to section 3111.23 or former section 5101.314 [5101.31.4] of the Revised Code and has not become final under former section 3111.211 [3111.21.1] or 5101.314 [5101.31.4] or section 2151.232 [2151.23.2], 3111.25, or 3111.821 [3111.82.1] of the Revised Code.
(B) A presumption that arises under this section can only be rebutted by clear and convincing evidence that includes the results of genetic testing, except that a presumption that is conclusive as provided in division (A) of section 3111.95 of the Revised Code cannot be rebutted. An acknowledgment of paternity that becomes final under section 2151.232 [2151.23.2], 3111.25, or 3111.821 [3111.82.1] of the Revised Code is not a presumption and shall be considered a final and enforceable determination of paternity unless the acknowledgment is rescinded under section 3111.28 or 3119.962 [3119.96.2] of the Revised Code. If two or more conflicting presumptions arise under this section, the court shall determine, based upon logic and policy considerations, which presumption controls.
http://onlinedocs.andersonpublishing.com/oh/lpExt.dll/PORC/14e97/15367/15375?f=templates&fn=document-frame.htm&2.0#JD_311103
Gfactor
October 24, 2005, 11:14pm
14
The Ohio General Assembly passed a law in 2000 that made it easier for a father who was the victim of paternity fraud to get an erroneous order set aside. There appears to be a split of authority on the issue of whether the statute violates Ohio’s state constitution on separation of powers grounds (The Ohio Supreme Court has the power to promulgate procedural rules; if the statute is procedural, it could be unconstitutional). http://www.sconet.state.oh.us/rod/newpdf/8/2004/2004-ohio-3617.pdf at 7-9. I haven’t found an Ohio Supreme Court case resolving the conflict. Maybe DSYoungEsq can help out with that.
Glad to hear I wasn’t entirely right. Mrs Slant is an honorable woman, but I’d feel terribly sorry if I knew one of my neighbors was paying child support for another daddy’s baby.