Who’s the father? In the age of DNA paternity testing, this seems like an easy enough question to answer. But not all legal disputes turn on statements of biological fact. That was the lesson for one man in Indiana, whose effort to disavow paternity of a child born to his wife was just rebuffed by an appellate court. He’s the father, the court said, because he has always said he was. A quick tour through parentage history helps explain why.
Out of the Kingdom: The Conclusive Presumption of Husband-Paternity
Science has made it easy to determine genetic fatherhood with a high degree of accuracy—DNA can be used to exclude a man as the father with 100% accuracy and can make a positive match with almost, but not quite, the same degree of accuracy. But legal fatherhood and biological fatherhood are not always the same thing. In large part, this is explained by rules that were developed before we had the foggiest clue how to figure out whether a particular man had fathered a particular child.
Parentage law—the question of who is a legal parent—was once tied tightly to marriage and legitimacy. Children of married women were conclusively presumed to be children of the marriage—unless the husband could prove he was sterile or had been “out of the kingdom” around the time of conception. This rule made sense in a time when all extramarital sex was taboo (and any offspring of such a relationship doomed to complete social and familial disaster) and science had not yet revealed the possibility of knowing the truth about paternity. Moreover, family law tended (and still tends) to avoid interfering with a marriage. Asking the question whether the husband was really the father could not be answered without the most invasive types of intrusion—and the inevitable destabilization that would follow.
These forces combined to create a rule, in essence, that husbands were the substitute fathers when they weren’t the biological fathers. The law did not make it easy for anyone to disprove their paternity—nor for any other man to be recognized as the real father. (Other than a recent change in California, states did not, and do not, permit children to have more than two legal parents simultaneously.) As a result, husbands were typically treated as the legal fathers of children born to their wives during the marriage.
Softening the Presumption
The preference for husband-as-legal-father was effectuated through a statutory or common-law presumption that the husband was the father for any children born during the marriage or within 300 days of its dissolution. The presumption was typically conclusive, meaning that it could not be rebutted even by credible evidence.
Times changed, however. The legal rights of unwed fathers grew (thanks in large part to a series of Supreme Court cases in the 1970s and 1980s invalidating state laws that ignored fathers’ rights in a variety of contexts). The stigma of illegitimacy declined (thanks in large part to a separate series of Supreme Court cases that invalidated most laws designed to disadvantage illegitimate children or their mothers.) And as divorce became more common (and available without proof of fault), the privacy and sanctity of marriage lessened somewhat and opened the doors to the possibility of excluding husbands as fathers. Combined, these forces have fueled a trend towards greater room for biology in the establishment of legal fatherhood, although the law still does not equate the two concepts.
This modern trend is captured in the current version of the Uniform Parentage Act (UPA), which was adopted in 2000 and amended in 2002. Under the original version of the UPA, which was passed in 1973, a father could seek to disestablish paternity within five years of the child’s birth. But the 2000 version of the UPA takes a slightly different approach: It expressly takes account of the newly acquired ability to accurately prove and disprove paternity, but it also tries vigorously to protect the best interests of the child.
This new UPA relies on a rebuttable presumption that a married man is the father of his wife’s children. The presumption can be rebutted now, but not without constraints. For example, a husband’s paternity can be disestablished with the voluntary consent of all three parties (the mother, her husband, and the biological father)—or, if consent is not possible, then by a suit to disestablish paternity brought within two years of a child’s birth. Regardless of the method of disestablishment, the UPA provides that DNA is the only evidence admissible on the question or paternity and, to be admissible, it must be obtained pursuant to court order or with the consent of all parties.
Sheetz v. Sheetz: An Unsucessful Attempt to Disestablish Paternity
In the recent Indiana case mentioned above, there was no mystery about where the wife’s baby came from. Ronnie’s husband, Benjamin, was sent to prison. While he was incarcerated, she became pregnant by another man. She told Benjamin the truth when it first happened, but while he was upset initially, he quickly decided that he was willing to hold himself out as the child’s father. In fact, he told his wife not to contact the biological father, not to seek support, and not to seek an adjudication of paternity.
By the time the child was born, Benjamin was out of prison. He was present at the birth, signed his name to the birth certificate, and made no effort to untie himself from the child. The couple went on to have two more children together. For twelve years, the couple raised the three children in peace. In fact, Benjamin seemed closest to the first child – the one he knew had been fathered by another man while he was in prison.
In 2014, Ronnie filed for divorce from Benjamin. She claimed in the divorce papers that the three children were all “children of the marriage.” Benjamin did not object, and the trial court entered an interim order for him to pay child support for all three children. But a week before the final divorce hearing, Ronnie told the child that Benjamin was not his biological father. The couple then entered a stipulation that Benjamin was not the biological father of that child, but Ronnie did not waive her right to seek child support from him.
The question, then, was whether Benjamin could be deemed the child’s legal father, despite the admitted lack of a biological tie. A finding of legal parentage is a prerequisite to an order of support. The trial court found that Benjamin was the child’s legal father, and the appellate court agreed.
Like many other jurisdictions today, Indiana utilizes a rebuttable marital presumption. The presumption that the husband is the father can be rebutted by “direct, clear, and convincing evidence.” As the appellate court in this case noted, the evidence typically used to rebut this presumption is evidence of the husband’s impotence, sterility or absence; or DNA testing. Had the husband’s non-paternity not been admitted, he could have used the timing of his prison term to rebut the marital presumption.
Benjamin, however, was not permitted to introduce that evidence. The appellate court held that he was “estopped” (legalese for “prevented”) from rebutting the presumption that he is the child’s father. Estoppel is a concept that makes many appearances in legal doctrine, but generally means that a person against whom it is used is not given the opportunity to say or prove something that might be valid or true—or the opportunity to make an otherwise valid legal claim. It is an equitable principle designed to prevent injustice.
In this case, the court found that Benjamin had induced Ronnie to rely on his promises to act as the child’s father. Because of his representations, she did not seek out the biological father for purposes of support, did not try to have paternity established, and did not keep track of his whereabouts. And this was not a case of paternity fraud (as some of them are). Benjamin knew before the child was born that his wife had cheated and that she had become pregnant by another man. He therefore had ample opportunity to disavow paternity – and his marriage, if he so chose. By waiting so long, he prejudiced Ronnie’s ability to adjudicate paternity against the biological father (the statute of limitations had run). And that choice put him on a different path—one that led to permanent, legal fatherhood. Certainly the mother and child benefit from this decision, but maybe, in time, the husband will too. After all, along with parental obligations, he will retain parental rights.
Complicated parentage disputes are among the more potent consequences of the new and ever more complex American family. But this one invokes only a most basic principle: biological ties are an important, but not exclusive basis for the development of a parent-child relationship.