Presumption of Paternity or DNA Testing

[mamabear2102003]

In many states, Lord Mansfield's Rule still stands as the standard for presumption of paternity in a marital relationship. Many have called this presumption into question because of the availability of DNA testing.

Currently Lord Manfield's Rule protects the family unit, allowing for no outside interference in matters of paternity of a child born within an intact marriage. (In fact, further investigation into presumptions of paternity include the wife having an outside relationship, with her husbands blessing, to have a child that he would be the father to. In researching this issue several years ago I found references to the husband giving his blessing for a wife to sleep with another for the purpose of having a child with the husband.)

There have been a lot of posts lately regarding a 'third party' threatening to sue for DNA testing of a child born within a marriage. I'm one that feels very strongly that this should not be allowed to happen, and that a married couple should be able to move forward as a family unit without this outside influence. I also feel that the ability to sue for DNA testing of a child within a marriage would create the atmosphere for a lot of frivolous suits being brought for all the wrong reasons. In my opinion, if you sleep with a married woman, you accept the consequences of same.... including the possibility of creating a child that will be raised by another. In this day and age of artificial insemination, in vitro and even surrogates, where the married couples are the legal parents of the child, DNA availability doesn't seem a very good reason to overturn the rights of a married couple.

What do you think? Should a third party be able to interfere in an intact marriage by requesting DNA to prove paternity? Should certain safeguards be in place to protect a marriage and a family unit from the stress and trust issues that would arise from the mere filing of such an action?

[Dogmatique]

I think in some instances yes - absolutely.

Now in terms of IVF/AI etc., I honestly think you're comparing apples to hedgehogs. There are specific legal safeguards in effect which already protect the parents from a third party interfering in these instances.

Also - and I recognize that men should get to know their sperm receptacles before jumping into bed - many women lie about being married.

Does this mean that lack of attention to detail (I'm trying to be really delicate LOL - fail!) should deny a man the right to be father?

Many states are now allowing the biological father to at least file a petition to rebut the legal presumption of paternity even when it involves an intact marriage. Perhaps the language in the individual statutes needs to be revisited and clarified, maybe allowing for such a petition only when there is evidence of a prior relationship with the Mother. Then again, what constitutes evidence?

Text messaging?

Emails?

Phone records?

I can see how all three may be problematic.

I do agree that any old Tom Dick or Harry should not be able to file willy-nilly purely out of spite to upset the apple cart.

[mamabear2102003]

Little did I know when I started this thread that it seems changes are a-coming in the state of Michigan (or at least being talked about). Michigan has not adopted the Uniform Parentage Act, and instead has it's own Paternity Laws. Under the current laws, a husband is the presumed father of any child born within an intact marriage or within 300 days of the end of that marriage. You don't have to be married at the time of conception, but at the time of birth. A third party has no standing to rebut this presumption.

On July 21st, 2010, a bill was introduced to allow some bio dads to rebut this presumption for up to a year after the child's birth if certain circumstances apply. Reading the law is rather confusing, since it seems to have a lot of 'strings' attached to the rebuttal, but it does open the door for more to file a paternity action for thier biological children. This bill is still in the discussion stage.

I still feel that in most cases it is wrong to allow a third party to intervene in a marriage, but Dog, you did point out some of the 'strings' that would avoid a frivolous (ie: vengeful) filing. Clear and convincing evidence should be a requirement, since mere flirting, sexting, or the *hint* of a physical relationship isn't the same. In reading a lot of material in regards to this issue, I really feel that you can draw parallels to the rights of men in re: to Roe v Wade for men. In that case, men are given no right/input over whether or not to become a father, and in the case of a child being born that is unwanted by that man, he is still required to provide support for the child. I'm NOT comparing the OUTCOME, but the 'rights' afforded to men in both situations. When do the rights of one outweigh those of another? KWIM?

[ashman165]

Yes, I think it's a very important social construct that we afford to marriages greater protection than any two participants might give to it. That is to say that if one person in the marriage can't follow her own vows, then we as a society should protect her from having to take ownership of her promiscuous ways.

As the first corollary to this wonderfully ingenious system you've devised, if a married man knocks up someone who isn't his wife, we should also protect the marriage from her being able to claim he was the father. Or, in the alternative, protect her single-ness from the stench of having an affair with a married man.

No, sorry. This is nonsense to make a rule that outright makes it illegal for a man to find out if he has sired a bastard. Moreover, you completely discount a child's right to know its medical risks because of its parentage. After all, a child is a "third" party to a marriage since it isn't a member of said marriage. I'm glad you support denying a child the right to know who its parents are.

[mamabear2102003]

Thanks ashman. Actually, I'm not discounting anyone, I was only trying to get an intelligent debate going since this is such a 'hot' subject. I also now realize that I didn't word my objection very clearly.... My objection is to those that come forward years later and threaten to file for DNA testing, or to the parties of the marriage using DNA testing in the process of divorce to 'hurt' the other party, which I find equally distasteful.

I think that the new bill is a good starting point. However, the more that I read (and hear) the more controversial all of this seems to get. My objection is to the fact that the laws need to be carefully crafted to avoid collateral damage, whether that be man, woman or child.

Your point about a single mother with a married father is well taken, and could even encompass a Roe v Wade for men argument. In that case, the father of said child may not have wanted the child. Again, a case of men having few rights (yes, there is the argument for using birth control, but as we all know, this is not 100% effective whether through failure or deception.)

My question was should certain safeguards (such as the 2 year rule) be in place, and how do we protect the rights of all involved from suits filed to 'upset the applecart' (such as someone who changes their mind 5,10 or 15 years later)? The current interpretation of the law up here says that a child born of a marriage is the product of that marriage.... even if she marries the day before the child's birth. Is THAT fair to the bio dad? (not in my opinion) How about the 'equitable' father clause, in which a man can establish paternity, and pay child support, but not see his child (again, no, it seems unfair to me that you can file for paternity, then shut out except for financially)? The laws, as written, seem to be a mish mosh of 'good intentions' without thought to the consequences of same. If a woman has the right to give birth (or not) then shouldn't a father be able to have the same right to be a father or not (and I'm NOT talking forcing an abortion, but instead the decision of whether or not to be legally obligated to be a father)? Is it fair that a husband is presumed to be the father of a child that is born within 300 days of a divorce? All of the above are covered by the Paternity laws. This is where my frustration lies. As society changes, so do the laws, but you need clear guidlelines to avoid unnecessary upset of all parties involved.

I understand that in these types of cases, a woman seems to hold all the cards, and I see the need to change that with well thought out restrictions (including a child being conceived prior to marriage being party to a AOP if there is more than one possibility for the father).

Dog said it best... in some cases, absolutely. Now, where does the line get drawn? Do we continue to allow a bio dad to file for testing years later? Do we allow husbands to be held responsible for children concieved after a divorce has been filed? Do we keep the status quo for a woman that marries another after conception because she wants him (bio dad) to have nothing to do with the child? How do we protect the child of an intact marriage years down the line without penalizing well meaning parents? There's a statute of limitations on most all things, should there be one on paternity as well?

[distressedmom]

The door should always be left open for someone to file a paternity suit.

We see a lot of posts where the married couple try to work things out, and somewhere down the road the couple splits. Often that's when the non-bio dad wants to protest paying child support and thinks the bio-dad should pay. Its pretty rare a marriage will stay in tact over the long haul under these circumstances.

I know of a situation where the mom knew her husband was not the dad. She wanted to go after bio-dad. Bio-dad's attorney wanted to pin everything on the husband. Thank goodness for DNA tests because the right person was ordered to support the child.

Laws often have to change with the times. The truth is any partner in a marriage can cheat and create a baby. Court ordered DNA tests prove paternity, so assumptions go out the window.

[mamabear2102003]

The door should always be left open for someone to file a paternity suit.

We see a lot of posts where the married couple try to work things out, and somewhere down the road the couple splits. Often that's when the non-bio dad wants to protest paying child support and thinks the bio-dad should pay. Its pretty rare a marriage will stay in tact over the long haul under these circumstances.

I know of a situation where the mom knew her husband was not the dad. She wanted to go after bio-dad. Bio-dad's attorney wanted to pin everything on the husband. Thank goodness for DNA tests because the right person was ordered to support the child.

Laws often have to change with the times. The truth is any partner in a marriage can cheat and create a baby. Court ordered DNA tests prove paternity, so assumptions go out the window.

Here's my issue with the above.... why should a non bio peg a bio after years of being 'dad'? This is not fair to the child, who for many years has only known one dad. Hence the time limits that I mentioned. There are many mom's and dad's out there that are not the bio parents (thinking adoption) and I just don't think that it's fair to disrupt a child's perception that far down the road. I've heard of many cases where responsibility was accepted at the child's birth, only to be denied in the case of divorce. So what is the legal alternative, mandatory DNA testing of ALL children to assure that parentage is unrefutable? Who pays for it? What happens when the DNA doesn't match to any one father (or where the mother doesn't have a clue who the father is)? Does the child then have only one parent?

Not being confrontational, just pointing out where I can see where issue might arise. I know of one mom who had five men tested, none matched. She had NO clue who dad was or might be. The child was placed for adoption with no father listed. In this case, should the child be subject to DNA testing years from his birth, and should the adoption be overturned if bio dad stepped up?

[distressedmom]

Can't change the law for all because of a few instances where something went wierd.

Sometimes kids find out later that dad isn't really the dad.
Sometimes folks want the real dad to pay support.
Sometimes the marriage falls apart and presumed dad doesn't want to pay support.
Sometimes bio dad wants to assert his rights.

Its a case by case thing, and I'm suggesting the law remain as it is.

[Dogmatique]

The law DOES treat each incident on a case-by-case matter though of course precedent and case law can heavily weigh into things.

Incidentally there have been several recent cases where long-standing adoptions have been overturned when a biological father has come forward.

[mamabear2102003]

The law DOES treat each incident on a case-by-case matter though of course precedent and case law can heavily weigh into things.

Incidentally there have been several recent cases where long-standing adoptions have been overturned when a biological father has come forward.

Thanks Dog. Here again is my point, not can they but SHOULD they? And when should case law override the best interest of the child (such as in the case where mom and 'legal' dad have parental rights terminated, yet bio dad want's the child and the court says he has no standing based on case law/precedent)?