Paternity by Estoppel: Fighting Injustice with Injustice

-- By SamHershey - 21 Feb 2010

Introduction

A recent class debate reminded me of a fascinating, heartbreaking article titled "Who Knew I Was Not the Father?" that appeared in the New York Times Magazine last November. The article discusses men who, when they realize that they have been cheated on and duped into raising children who are not their own, find themselves bound by stringent paternity laws to continue to pay child support. While I would never wish to downplay the horrors of deadbeat fathers, my fear is that the law, in combating terrible social ills, has created new injustices. The law must work in more nuanced ways to achieve justice.

The Problem: Solving One Injustice by Creating Another

Abandoned Mothers

The abandonment of mothers and children is a grave and rampant problem. According to the 2005 US Census Bureau, over 20% of custodial mothers, i.e. single mothers with minor children, do not receive any child support from their children's father. While mothers who know the identity of their children's father have potential recourse through the courts, mothers who remain ignorant of the identity of their children's father face a hopeless situation. For that reason, efforts to identify and legally bind absentee fathers have proved essential to achieving justice for these women and their children.

Deceived Husbands

Still, through the enforcement of stringent paternity laws, a new class of victims has been created. DNA testing has enabled men across the country to discover that the child they have been raising is not theirs at all. These men are doubly deceived--not only in remaining faithful to an adulterous wife, but also in supporting her lover's child. The laws of the vast majority of states offer no sympathy to the deceived man: Not only must he continue to pay child support, but also the true father, if he is known or discovered, bears no financial obligation. These states operate under the old English common law notion that birth in marriage establishes paternity. I do not wish to pass judgment on these deceived husbands and their feelings of betrayal. Adultery, though not illegal, is a deep source of anxiety for both men and women, and forms a large part of our cultural consciousness (as countless headlines about Elizabeth Edwards, to name one example, demonstrate). It presumably plays a significant role in our country's absurdly high divorce rate. Whether our culture is wrong-headed in reinforcing this anxiety, and whether deceived men are silly to worry about the genetic make-up of their children--something they can never really know for certain--I cannot say. I, perhaps illogically, sympathize with the victims of adultery. So do many others. But more importantly, as I will discuss below, so does the law. But the way in which the law deals with these issues needs to change.

Rights in the Balance

The Child

In most of the relevant court rulings, the paramount concern has been the well-being of the out-of-wedlock child. And rightly so: The child is an innocent bystander to its parents' actions. It is powerless to defend its interests. Courts have reasoned that allowing men to abandon the child, even if that child proves not to be their own, would constitute a greater injustice than forcing those men to continue to pay child support. I completely agree with this conclusion. Both the man and the child are victims, but the child's rights must take precedence. Yet the law has evolved a response to DNA testing that is the worst imaginable for the child's interests: States have begun to adopt measures that allow deceived fathers a two-year window in which they can produce DNA evidence showing that they are not the child's biological father and thus relieve themselves of all paternal obligations. This law thus creates a two-year period in which the father's rights inexcusably take precedence over the child's. In attempting to give justice to the husband, the law has instead created a much greater injustice.

The True Father

The proper solution needs to recognize that there are multiple ways to assume legal responsibility for a child, two of which are biological fatherhood and birth during marriage. If the deceived husband did not exist, the mother would be able to try to track down the biological father and, through DNA testing, impose paternal responsibilities on him. This is as it should be--again, the welfare of the child must come first, and having a father in the picture is central to that welfare. But in situations like the ones at issue, the question becomes which man has the greater responsibility--the biological father or the man who was married to the mother at the time of the birth. If deceived husbands wish to divorce their wives and abandon their parental responsibilities, the law should not allow them to do so if it leaves the child without a father. If within a set window, however, the biological father can be found, then he should assume responsibility. If he cannot be found, then the husband must retain his paternal obligations. The two-year window seems fair: Marriage and sex both impute responsibilities, and while at the moment of birth the biological father who caused the birth bears greater responsibility, the balance of responsibility reasonably shifts to the husband as he becomes an increasing presence in the child's life. This solution would most protect the child's interests while also treating victims of adultery justly.

Conclusion

The real problem for these deceived "fathers" is that they have had the misfortune of falling into groups that are rightly viewed with skepticism, namely "men who no longer wish to pay child support." Nevertheless, it is precisely because these innocent men face such intense adversity that sensitive, serious lawyers must strive to defend them. Changes in the law that allow for more nuanced treatment of these men, while treating the child's rights as paramount, protect the justice to which all people are entitled.