For centuries there has been a legal "marital presumption" that a child born to a married couple is a product of that marriage, or in other words, that the husband is the father of the child. Although some exceptions apply, the marital presumption is still used to determine the legal father of marital children. However, paternity must be "established" for non-marital children (i.e., children born out of wedlock). In those cases, paternity may be established by a signed voluntary acknowledgment, a paternity suit judgment or by presumption through "conduct"- where a man holds the child out as his own. Genetic tests provide a quick and efficient method to establish paternity. However, genetic testing has also served the more controversial purpose of disestablishing the already determined paternity of both marital and non-marital children.
Genetic Testing in Paternity Cases
Although not legally required, genetic tests are the typical method of proving paternity. Courts and child support agencies widely use genetic test results to establish paternity for non-marital children so that those children can receive financial support, rights of inheritance and Social Security benefits. Genetic, or DNA testing, is quick, inexpensive, and accurate. A small blood sample or a simple swab of the cheek (buccal cells) proves paternity with 99.9% accuracy. In fact, testing has become so simplistic that test kits are available over the Internet and samples from the child may be taken without the other parent's knowledge.
Disestablishment Suits
With the ease and efficiency of genetic testing to prove paternity, has come the more unanticipated and controversial concept of "disestablishing," or reversing, paternity in cases where a legal father has already been determined. Disestablishment actions contemplate the following scenarios:
- Men trying to disestablish the paternity of a child
- Women seeking to oust a father from a child's life
- Biological fathers trying to assert paternity of a child who already has a legal father
Such suits raise serious ethical, social, and legal issues as searches for the "truth" may end up disrupting long standing parent-child relationships and eliminating an adult's financial responsibility to the child. Courts and state legislatures continue to wrestle with disestablishment issues in an effort to achieve a balance between public policy and human equity.
Disestablishing the Paternity of Marital Children
Courts have seemed most reluctant to disturb the marital presumption of paternity. In cases of divorce, once paternity is established in the divorce decree, the determination is typically conclusive and thus may not be re-litigated under the principal of res judicata. However, some courts might be willing to allow new genetic evidence to disestablish paternity. In those cases, the paternity judgment might be overturned in "the interest of justice," but only if the paternity challenge is made within a timely manner. It also seems more likely that the marital presumption or divorce decree will be set aside when another man (e.g., the biological father) is willing to assume the role of providing for the child in question.
Disestablishing the Paternity of Non-marital Children
In some cases, where the couple was never married, courts may be more ready to vacate a paternity determination, usually when later genetic tests demonstrate that the legal father is not in fact the biological father. However, in cases where a man has voluntarily acknowledged his paternity (e.g., by signing a document), any later opportunity to withdraw or rescind that acknowledgement is severely limited under federal law time constraints (60 days) and other restrictions.
In cases where paternity of a non-marital child was judicially or administratively adjudicated or presumed by the father's conduct, federal law is not implicated and state laws widely vary. Some states allow only the adjudicated father to reopen paternity orders with new genetic test results to disestablish his paternity. Other states allow anyone to reopen the case with new genetic evidence. Other states have adopted the Uniform Parentage Act of 2000 and impose different time restrictions on bringing a disestablishment suit depending on who brings forth the suit.
Grounds Courts Use to Preclude Disestablishment
In the interest of achieving equity, courts have used several grounds, in combination with or in place of state statutes, to preclude individuals from disestablishing paternity. These grounds include:
- Doctrine of laches (i.e., "undue delay" in bringing a disestablishment action)
- Paternity by estoppel (i.e., an obstruction that precludes a father from denying paternity, based on the father's actions, conduct, statements or admissions)
- Uniform Parentage Act's statute of limitations
- Res judicata (i.e., the issue of paternity has already been determined by another court)
In effect, these legal theories provide the means for courts to achieve a "rough sense of justice," or, what they deem to be the fairest results. Some courts tip the balance in favor of the child and consider the child's best interests. Other courts tip the balance in favor of the prior determined "fathers" and consider their interests in not paying support for children who are not their own.
Disestablished Fathers Relief from Child Support
One of the major hardships in disestablishment cases is the consideration of who will pay child support once a man is disestablished as the legal father. Courts and state legislatures continue to wrestle with this controversy. Although courts have several grounds for which they might refuse to disestablish paternity, once paternity has actually been disestablished, there is little disagreement that the disconfirmed father should be relieved of any current and future financial responsibilities. However, disestablished fathers have seen little success in courts with respect to reimbursement for the child support that they have already paid.
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