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Sunday, November 22, 2009

Law - "DNA testing has led more men to discover that their children are not biologically theirs. Families are upended, and so is the law"

The NYT Sunday Magazine today has a very long article by Ruth Padawer on paternity and fatherhood. Here are just a few quotes:

Mike’s conundrum is increasingly playing out in courts across the country, a result of political, social and technological shifts. Stricter federal rules have pressed states to chase down fathers and hold them responsible for children born outside of marriage, a category that includes 40 percent of all births. At the same time, DNA tests have become easier, cheaper and more reliable. Swiping a few cheek cells and paying a couple hundred dollars can answer the question that has plagued men since the dawn of time: Am I really the father? * * *

Over the last decade, the number of paternity tests taken every year jumped 64 percent, to more than 400,000. That figure counts only a subset of tests — those that are admissible in court and thus require an unbiased tester and a documented chain of possession from test site to lab. Other tests are conducted by men who, like Mike, buy kits from the Internet or at the corner Rite Aid, swab the inside of their cheeks and that of their putative child’s and mail the samples to a lab. Of course, the men who take the tests already question their paternity, and for about 30 percent of them, their hunch is right. Yet as troubled as many of them might be by that news, they are even more stunned to discover that many judges find it irrelevant. State statutes and case law vary widely, but most judges conclude that these men must continue to raise their children — or at least pay support — no matter what their DNA says. The scientific advance that was supposed to offer clarity instead reveals just how murky society’s notions of fatherhood actually are. * * *

Even in paternity cases simpler than that of Mike and L., nonbiological fathers often feel like serial dupes: their wives or girlfriends cheated on them, the children they thought were theirs aren’t and yet they are required to support children they did not create. Because nothing can be done about the cheating or the biological revelation, the men focus their indignation on the money. The urge to withhold every dime, lest it end up easing the mother’s life, is hard to resist. Often the fight isn’t really about child support; it’s simply a way to channel rage about the woman’s duplicity. Some observers suggest that insisting these men pay child support will damage rather than fortify the relationship between father and child that society seeks to preserve. As Alaska’s Supreme Court concluded in a decade-old paternity case, making a nonbiological father pay “might itself destroy an otherwise healthy paternal bond by driving a destructive wedge of bitterness and resentment between the father and his child.” * * *

Judges around the country have interpreted the common law in so many different ways that what happens in contested-paternity cases depends almost as much on the state as on the details of the case. Some state-court judges have let nonbiological fathers off the hook financially, but they are in the minority. In most states, judges put the interest of the child above that of the genetic stranger who unwittingly became her father — and that means requiring him to pay child support. Some judges have even rebuked nonbiological fathers for trying to weasel out of their financial obligations. “The laws should discourage adults from treating children they have parented as expendable when their adult relationships fall apart,” Florida’s top court held in a 2007 paternity decision, quoting a law professor. “It is the adults who can and should absorb the pain of betrayal rather than inflict additional betrayal on the involved children.”

In an age of DNA, when biological relationships can be identified with certainty, it can seem absurd to hew so closely to a centuries-old idea of paternity. And yet basing paternity decisions solely on genetics places the nonbiological father’s welfare above the child’s. Phil Reilly, a lawyer who is also a clinical geneticist, has been wrestling with the policy implications of DNA testing for years, and even he is stumped about how society should manage the problem that men like Mike face. “We’re at a point in our society where the DNA molecule is ascendant, and it’s very much in the public’s consciousness that this is a powerful way to identify relationships,” Reilly says. “Yet at the same time, more people than ever are adopting children, showing that parents can very much love a child who is not their own. The difference here for many men is the combination of hurt and rage over the deceit, the fact that they’re twice beaten. I can see both sides of this argument. As a nation, we’re still in search of what the most ethical policy should be. Every solution is imperfect.”

Once a man has been deemed a father, either because of marriage or because he has acknowledged paternity (by agreeing to be on the birth certificate, say, or paying child support), most state courts say he cannot then abandon that child — no matter what a DNA test subsequently reveals. In Pennsylvania and many other states, the only way a nonbiological father can rebut his legal status as father is if he can prove he was tricked into the role — a showing of fraud — and can demonstrate that upon learning the truth, he immediately stopped acting as the child’s father. In 2003, a Pennsylvania appellate court bluntly applauded William Doran — who had been by all accounts a loving father to his 11-year-old son — for cutting off ties with the boy once DNA showed they were not related. The judges found that Doran had been tricked by his former wife into believing he was the father of their son, and he was allowed to abandon all paternal obligations.

Where are we on this in Indiana? See this ILB entry from March 18, 2007, and this update from Nov. 3, 2007.

The ILB would be pleased to post more recent information from readers.

Posted by Marcia Oddi on November 22, 2009 10:59 AM
Posted to General Law Related