The only reason I’m not spitting feathers at this point is because I’ve heard of this one before.
Hadn’t heard that phrase before. Now I know. World Wide Words: Spitting feathers
Well I hadn’t heard of spitting feathers but I guess I am. Goddamn. It’s fucking Kansas, too, not like I had any respect for the State before this, and now even less.
This isn’t much different from people who say a female child who gets pregnant by rape should be forced to have the baby.
The citation for the case is: State ex rel. Hermesmann, v. Seyer,
252 Kan. 646; 847 P.2d 1273; 1993 Kan. LEXIS 31 (1993).
Well, except for the areas where it is different, such as the baby being forced to die if she doesn’t, in that scenario. This one is more like saying that a female child who has been raped by an adult has to go around and clean house for him five hours a week for eighteen years. :rolleyes:
Heh. I had a roommate many years ago who claimed to have fathered his first child when he was 12, with his babysitter. In his case though, the babysitter chose to leave town and he never saw the child or heard from her again.
Say during a divorce it is determined that the child resulted from an affair between his wife and the gardener and due to the presumption above the ex-husband is still ordered to pay child support can he sue the actual genetic father for damages?
I’ve not come across a case like that. It’s actually unlikely that the court would permit proof of parentage if it considered the marital presumption conclusive (less likely today) or found that it was in the best interest of the child not to permit a challenge to paternity. But it’s not impossible. Here are some good discussions of the marital presumption.
http://www.clasp.org/publications/truth_and_consequences2.pdf
http://www.clasp.org/publications/truth_and_consequences3.pdf
http://law.jrank.org/pages/9106/Paternity.html
http://writ.news.findlaw.com/grossman/20051227.html
http://www.clasp.org/publications/paternity_establishment_2004.pdf
http://www.clasp.org/publications/paternity_update_061005.pdf
http://www.divorcesource.com/research/dl/paternity/98sep169.shtml
Wow, I think that is more than I’ve ever wanted to know on the subject! 
What I mean, though, is can the ex-husband sue the genetic father for damages? The ex-husband isn’t disputing his that he has to pay child support (and well may be willingly involved in the child’s life), he is saying that the person who caused him to have to pay child support should be accountable for their actions. Just like the guy who crashes into the back of my car at a stop light. He is responsible for the damages to my car yet I’m the one actually paying the repairman. I expect to be reimbursed for the damages.
I understood what you meant. 
I don’t think I’ve seen any cases like that. I want to check a few more things and then I’ll come back and say a bit more.
Yeah, I wasn’t sure based upon your answer with your challenging paternity reference. If there is no challenge to paternity, then I don’t see how the courts would/could object, but I am not a lawyer (even though I wanted to be at one time).
Thanks.
It’s a tricky question. I checked again and didn’t find any cases. I agree with you, actually. The father has been the victim of fraud, and must grin and bear it in the interest of the child. The person who committed the fraud (his ex wife who presented the child as his) is immune from suit (there are cases holding it defeats the purpose of child support to make the mom pay damages for paternity fraud). But there are public policy issues invovled:
First you have to establish that the lover had a legal duty to the husband not to impregnate his wife. Some states have adultery statutes on the books, but there have been few prosecutions. Of course, there have been some recent cases of public figures confessing to adultery and seeing no punishment for it. Michigan’s attorney general admitted to adultery and was reelected; then his office won a case in the Michigan Court of Appeals in which the court concluded that adultery was criminal sexual conduct (a serious felony) in Michigan. 404 Not Found | wzzm13.com Moreover, causes of action based on adultery used to be common (the so-called heart balm torts) but were ultimately rejected because they were based on the notion that the wife was the husband’s property. Of course, this claim is a bit different–it’s not that the lover has taken the husband’s wife–he’s cost the guy money. At any rate, courts seem conflicted on the issue.
Against the ex-wife, you’ve got fraud, as I mentioned before. She has a duty not to lie to her husband in order to get child support. But as I mentioned, she can’t be held accountable if dad is paying child support–if she was, she’d have to pay the child support back to dad, which defeats the purpose. Against the lover there’s no such problem, but the lover may not have made any false claims. So it’s a bit of a conundrum. The damage that the ex-husband is claiming here is really that the lover wrongly caused the birth of a child, which gave the ex-wife the opportunity to lie and force him to pay child support. This leads us to our second set of problems.
Until recently, the law frowned on claims that wished a baby dead. I don’t have time to go into all of the details, but basically today the child can’t sue for what they call wrongful life (a child is born with birth defects and sues claiming that he or she would essentially be better off to never have been born). OTOH, wrongful birth http://www.nytimes.com/2006/03/12/magazine/312wrongful.1.html?ex=1299819600&en=bec8eb3091e93455&ei=5088&partner=rssnyt&emc=rss and wrongful conception Wrongful birth and wrongful conception: the legal and moral issues - PubMed cases have had a better reception. So you could try to fit the cause of action in with these.
Another approach would be to recognize a cause of action based on violation of adultery provisions in state penal codes. There’s a detailed analysis required for that kind of claim:
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=in&vol=app\05230015.nhv&invol=2
And given that the heart balm cases have pretty much ruled that theory out, it’s probably not much help.
Anyway, that’s why it’s not as easy a case as you might think. There’s a lot more to this, but I’m out of time to think about it right now.
And here I thought it would be clearcut!
If someone does something that causes you damages, then they should pay to some form of recompense to make up for their actions.
If a guy is cutting down a tree in his yard and it falls on my kid in my yard, I’m not going to abandon my kid because they have a broken arm, but I expect the medical bills at the least would be paid for by the tree cutter. And that is an accident. I don’t see how the same neighbor could accidentally get his penis lodged in my wife’s vagina. It is more of a deliberate and willful act.
Problem is:
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It’s her vagina–not yours–and she consented.
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Even if she didn’t consent, you couldn’t prevent her from having the baby because it’s her uterus. You can’t prevent her from lying about the baby’s father in advance because you don’t know about it (or the lie would be ineffective) and because you can’t really control people like that (physical prevention)–you can only impose consequences, but in this case barring support or making her pay it right back to you are ruled out on public policy grounds.
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So the only wrong is that you got deceived into supporting a child that wasn’t yours. States are beginning to deal with this problem–and a related one (what if the lover wants to come clean and be the dad?)–with statutes permitting delayed attempts to challenge paternity when there has been fraud.
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Elsewhere, I’ve discussed some other possible solutions to the problem, all with their own new problems:
a. Criminalize paternity fraud–or at least enforce the laws that are already in force. Tempting, but the one to suffer in many cases will be the kid.
b. Permit dad to sue mom for indemnity after the child grows up and impose a supervisory trust system to make sure mom is supporting herself with her own funds and not child support, which is for the child only. First part comes too late and may still hurt the child; second is expensive and impractical.
c. Enforce adultery statutes. Won’t happen as long as politicians and cops http://boards.straightdope.com/sdmb/showthread.php?p=8441773&postcount=243 are committing it.
d. Get rid of the marital presumption–at least in divorce cases. It still serves a function in some cases where the couple remains married, although given the current focus on genetics, one could argue that the function goes against the grain of current policy.
e. Automatically deny the mom custody if paternity fraud is proven. Obviously this one has serious problems and could prove very dangerous. It has a certain facial appeal–going back to the notion that a person should not be permitted to profit from her crime–but custody is determined based on the best interest of the child, not what does justice among the grownups. Also, this assumes that the dad wants custody and is a suitable parent. If not, he’s still going to have to pay support to someone, at least for a while.
This reply is just up your…alley. It’s also officially heresay, one step removed. My friend Annette was a paternity prosecution specialist on the southern East Coast. She successfully ‘nailed’ a deadbeat dad with the wierdest cicumstances.
Two couples, one car, one rubber. After the back seat lovers uncoupled, the prophylactic was turned inside out and reused in a front seat tryst. The backseat ‘donor’ was forced to pay child support to the impregnated front seat mom. Hope for intellegence in the ensuing generation were slim.
The case involving the teenage boy who was statutorily raped is interesting to me. What recourse would the woman/custodial parent have in that situation, if the order to begin paying the child support came down while the boy was still 13? (I’d imagine like most cases that make it to state supreme court the 13 year old boy was probably 16-17 by the time the case was finally settled completely) A thirteen year old can’t legally work in most places.
Is there some legal doctrine that would make the parents of the 13 year old responsible, if so, is it a commonly accepted idea that grand parents are universally responsible for the financial well being of their children’s children?
What if the 13 year old was a ward of the state, and had no biological parents?
There certainly is in other cases of liability, e.g., the classic window-broken-by-baseball.
Same thing.
Legally it is usually only the parents (not their parents) who are liable for child support. There are a few legal doctrines that might get applied, but they usually require more than bare parentage.
You might find this thread interesting: Woman claims alimony from husband's parents... - Great Debates - Straight Dope Message Board (or heck, you might not)
I’ve pointed out elsewhere that this is a bit of an urban legend. Parental liability for a child’s torts the exception, not the rule.