Legal Question: Presumption of paternity?

[Typo_Negative]

Is the presumption of paternity the law in any of the states? If so, which ones. Or is an unwritten understanding? Or something that no longer applies?

As I understand it (or misunderstand it), when a man and a woman are married and have a child, the law presumes the baby to the child of said man.

Further, the paternity of that child cannot be challenged. Is this true? And does that go for both parents?

[Otto]

IANAL. In Wisconsin under Wis stat. ch 891 the issue of a married woman is legally presumed to be the issue of the husband. Paternity can be challenged by certain parties (including the natural mother, the child or the man presumed to be the father) under Wis stat. ch 767.45 for the purpose of rebutting the presumption of paternity.

[BrotherCadfael]

IANAL (I’ve always wanted to say that!). My understanding is that this is perhaps the single subject where the law varies the most between states. In some states the presumption is exactly as you have described it. In other states, the rules are completely different.

In Stranger in a Strange Land, the Valentine Michael Smith character was described as “the legal offspring of three parents”, not because he came from Mars, but because one of his fathers came from a state where the husband was presumed to be the father, and one came from a state where the biological father was recognized as the father.

[barbitu8]

*Originally posted by BrotherCadfael *
**IANAL (I’ve always wanted to say that!). My understanding is that this is perhaps the single subject where the law varies the most between states. In some states the presumption is exactly as you have described it. In other states, the rules are completely different.

In Stranger in a Strange Land, the Valentine Michael Smith character was described as “the legal offspring of three parents”, not because he came from Mars, but because one of his fathers came from a state where the husband was presumed to be the father, and one came from a state where the biological father was recognized as the father. **

I would guess that all the states have statutes similar to Wisconsin’s. The biological father, however, is always recognized as the father in any state. The statute confers a ** rebuttable** presumption. This presumption can be refuted, and DNA evidence, of course, would be the primary method of refuting the presumption.

[brianmelendez]

*Originally posted by barbitu8 *
I would guess that all the states have statutes similar to Wisconsin’s. The biological father, however, is always recognized as the father in any state. The statute confers a ** rebuttable presumption. This presumption can be refuted, and DNA evidence, of course, would be the primary method of refuting the presumption. **

Definitely an incorrect “guess.” Brother Cadafel’s view is much more accurate. Some states do allow a conclusive presumption of paternity. For example, California:

If a man fathers a child with a woman who is married to another man, the results can be devastating to the natural father. Under existing law, the husband of the mother is presumed to be the father. If the husband refuses to allow the natural father to assert parental rights, the natural father will be without recourse in the courts (Dawn D. v. Jerry K., 17 Cal.4th 932, 72 Cal.Rptr. 871. (1998). In Dawn D. the mother (Dawn D.) left her husband to live with a man (Jerry K.). Although at the time she began living with Jerry, Dawn intended to divorce her husband, she became pregnant with Jerry’s child about one month later, and then returned to her husband about three months after becoming pregnant. Despite Jerry’s attempts to assert his parental rights, the California applied Family Code §7611 and Family Code §7630 against the natural father. Jerry was not married to Dawn (§7611(a)) nor did he hold out the child as his own §7611(d). Despite the otherwise rebuttable presumptions, the court explained that the Family Code “restricts standing to challenge the presumption of a husband’s paternity to the child, the child’s natural mother, or a presumed father (Family Code §7630(a).” (Dawn D., supra, p. 937). The harsh result of the case was that the natural father would not be permitted to assert his parental rights, and could not compel Dawn and the child to submit to blood tests. The majority concluded that Jerry did not have a constitutionally protected liberty interest in establishing a parent-child relationship with the child.

Numerous courts have rejected due process challenges to the “conclusive” presumption of paternity. (see generally, Michael H. v. Gerald D. (1989) 491 U.S. 110, 109 S.Ct. 2333, 105 L. Ed. 2d 91; Michelle W. v. Ronald W. (1985) 39 Cal.3d 354, 216 Cal.Rptr. 748, 703 P.2d 88). Where the conclusive presumption applies, unless the biological father has established a parental relationship with the child, it has been held that the state’s interest in maintaining the stability of the family will overcome the biological father’s rights (Michael M. v. Giovanna F. (1992) 5 Cal.App.4th 1272, 1284, 7 Cal.Rptr.2d 460).

An almost identical fact situation is presented by Rodney F. v. Karen M. (61 Cal.App.4th 233, 71 Cal.Rptr.399 (2nd. Dist., Div. 6, 1998), cert. denied, 1998 Cal. Lexis 2514). In that case, despite blood tests establishing a 99.5 per cent probability of paternity for the biological father, the mother’s husband was deemed the father pursuant to the “conclusive” presumption of Family Code §7540. Even thought the biological father’s petition was apparently brought within the two year period of limitations, the biological father was held not to be a “presumed” father within the meaning of Family Code §7611, and “it was error for the trial court to order blood tests.” (Rodney F., supra, 61 Cal.App.4th 233, 239).

The Supreme Court of the United States upheld the constitutionality of conclusive-presumption statutes in Michael H. v. Gerald D., 491 U.S. 110 (1989). Justice Scalia’s opinion announcing the Court’s judgment gives an interesting history of presumed-paternity laws.

[barbitu8]

Let me amend my statement, “all states, except California.” California is an anomaly so far as laws are concerned.

[brianmelendez]

*Originally posted by barbitu8 *
**Let me amend my statement, “all states, except California.” California is an anomaly so far as laws are concerned. **

California is an anomaly in oh so many ways. But it is not alone here. California is one of 19 states that have adopted the Uniform Parentage Act in some form. The Parentage Act provides a rebuttable presumption in some cases, but retains the common law’s conclusive presumption if the mother and a putative father acknowledge the putative father’s paternity, and do not rescind it within 60 days, in which case the putative father’s paternity is conclusively presumed. Thus, if a cuckolded husband mistakenly believes that his wife’s child is his, and acknowledges his paternity, then he is conclusively presumed the child’s father and that presumption extinguishes any claim of paternity that the true biological father might have asserted. The 1973 Uniform Parentage Act was updated in 2002 in response to congressional pressure for greater certainty regarding paternity in child-support proceedings:

Voluntary acknowledgment of paternity has long been an alternative to a contested paternity suit. Under UPA (1973) § 4, the inclusion of a man’s name on the child’s birth certificate created a presumption of paternity, which could be rebutted. In order to improve the collection of child support, especially from unwed fathers, the U.S. Congress mandated a fundamental change in the acknowledgment procedure. The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA, also known as the Welfare Reform Act) conditions receipt of federal child support enforcement funds on state enactment of laws that greatly strengthen the effect of a man’s voluntary acknowledgment of paternity, 42 U.S.C. § 666(a)(5)©. . . . In brief, it provides that a valid, unrescinded, unchallenged acknowledgment of paternity is to be treated as equivalent to a judicial determination of paternity.

Uniform Parentage Act, art. 3 comment (2002). For example, under Delaware law:

© An acknowledgment of paternity made and filed pursuant to subsection (a)(5) of this section or § 3105 or § 3121 of Title 16 shall be final, binding, conclusive and determinative of the child’s paternity for all purposes, unless timely rescinded in the manner provided in subsection ©(1) of this section.

(1) An acknowledgment of paternity made and filed pursuant to subsection (a)(5) of this section or § 3105 or § 3121 of Title 16 may be rescinded by a parent only: (i) by written notice of a claim or defense of nonpaternity made in an action in which the signatory is a party and in which the paternity or nonpaternity of the child is an element of the claim for relief or a defense, but only if such action has been filed in the Family Court within 60 days of the date the acknowledgment of paternity was signed by the parents; or (ii) by written rescission filed with the Office of Vital Statistics and accompanied by the rescinding parent’s affidavit showing mailing of a copy of the rescission to the other parent at his or her address as shown on the acknowledgment, within 60 days of the date the acknowledgment of paternity was signed by the parents.

Del. Code, tit. 13, § 804© & (1) (emphasis added). Most other states adopting the Uniform Parentage Act, not only California, have taken a similar approach.

[BrotherCadfael]

Just by way of clarification, my quote from Stranger should not be taken as a citation of legal precedent, but as an example of the kind of legal oddity that could result from widely varying state laws.

This is one area where the differences amoung state laws are most pronounced. Perhaps the only other area as widely varying would be regulation of alcoholic beverages.