Disestablishment Suits.What Hath Science Wrought?

Mary R. Anderlik, J.D., Ph.D.
Institute for Bioethics, Health Policy
and Law, University of Louisville
School of Medicine
Developments in science and technology
are raising questions about established
principles and procedures for determination
of parentage. DNA-based identity
testing, long used in the public realm to
establish father-child relationships, is
increasingly employed to challenge legal
paternity and its attendant obligations.
So-called disestablishment suits have
ignited a charged debate centering on the
interests of children and the rights of
fathers. This article begins by describing
the context of the debate, then provides
an overview of the complex legal landscape
of disestablishment suits, discussing
factors contributing to the issue’s
complexity as well as underlying policy
considerations, the “legislative backlash”
generated by court decisions restricting
disestablishment suits, and the solutions
proposed in the revised Uniform Parentage
Act and the American Law Institute’s
Principles of the Law of Family Dissolution.
The article concludes with a review of
points that remain to be considered,
including standards for genetic testing
and significant privacy issues, the
requirements for standing to bring a disestablishment
suit, the elements of the
best-interest analysis, the handling of
arrearages and claims for recoupment,
fraud and related actions against the
mother, alternative dispute resolution,
and arguments regarding the proper use
of estoppel. ■
This article draws on research funded by
the National Institutes of Health, Grant
No. R01 HG02485-01, “Genetic Ties
and the Future of the Family.” The views
expressed are the author’s own and do
not represent the opinions or policies of
the National Institutes of Health. Please
direct correspondence regarding this
article to Mary R. Anderlik, Institute
for Bioethics, Health Policy and Law,
University of Louisville, 501 East Broadway,
Suite 310, Louisville, KY 40202
(tel.: 502-852-4983; fax: 502-852-4963;
e-mail: mrande02@gwise.louisville.edu).
The author wishes to thank Dr. Laura
Gahn of Identigene for her guidance on
technical issues and Mark A. Rothstein,
director of the institute, for his guidance
and support throughout the writing of
this article and for suggesting the typology
of positions used in the second section.
The research assistance of Ms. Elizabeth
Stepian is gratefully acknowledged.

The first wave of DNA-based identity testing coincided with an
aggressive program of paternity establishment for nonmarital children
receiving federal welfare benefits. Although this development
was significant, the public purposes behind testing were well understood, the
rules for testing were relatively clear, and the program was consistent with
long-standing public policy commitments to establishing family relationships
and promoting responsibility. The second wave of testing to verify or
disprove paternity in child support proceedings that is currently under way
is quite distinct from the first: it is driven by private interests, the rules for
testing are unclear, and the genetic test results increasingly have the effect of
disrupting, or “disestablishing,” parent-child relationships and triggering
demands for the elimination of an adult’s financial responsibility for a child.
Courts and state legislatures are searching for ways to reconcile the competing
rights and interests of parents, nonparents, and children. So far, there is
little evidence of consensus.
In collaboration with the Hastings Center, an independent, interdisciplinary
research institute located in Garrison, New York, the Institute for
Bioethics, Health Policy and Law at the University of Louisville School of
Medicine is studying the ethical, social, and legal issues surrounding DNAbased
identity testing as it affects families. In particular, we are working with
a group of expert consultants in law, philosophy, social science, and social
services to advance understanding of these issues and contribute to a coherent
policy response. At this point we are not making the case for a particular
position. We offer, instead, a review of developments in science, society, and
the law and an overview of legal and policy options. We invite comment
from those in the field.
THE CHALLENGE FROM SCIENCE
The current problem consists of a confrontation with the potentially destabilizing
effects of DNA-based identity testing and, more particularly, paternity
testing. This problem would not exist were it not for advances in science
and technology. The Human Genome Project has accelerated the development
of techniques for cheap, efficient analysis of DNA and comparison of
genetic profiles. Scientists and engineers are constantly refining those techniques,
so that testing is becoming ever faster, cheaper, and more widely
available. Even with existing technologies, analysis can be performed on
DNA extracted from almost any biological material, which has important
implications for privacy. While testing at one time involved a blood draw,
many laboratories now offer testing with sample collection by mail (sometimes
referred to as “mail-order” or “home” testing) using cheek swabs. Testing
of hair and other materials easily collected without the knowledge or
cooperation of the subject is increasingly available.1
The Human Genome Project has also increased interest in genetic identity.
For example, there is a greater emphasis on the genetic family as an aspect
of health care. Diagnostic testing for inherited conditions associated with
heightened disease risk will sometimes produce ambiguous results, and a
thorough family medical history or testing of genetic relatives may provide
information useful in clinical decision making. Likewise, DNA testing and
genetic relationship are important in identifying prospective donors who
match on relevant biological properties for the purposes of organ and tissue
transplantation.
The new emphasis on genetic identity is not confined to the clinical context.
It has reinforced the view that biological relationship and parental status
are tightly linked. DNA-based identity testing has now become part of the
culture, with paternity testing a staple of talk shows and daytime and primetime
dramas.2 Media attention and the marketing efforts of laboratories have
contributed to demand for testing by sowing suspicion about paternity and
fidelity and suggesting that testing is a natural and acceptable response to suspicion.
Given the growing influence in both the law and popular culture of
genetic thinking and “genetic essentialism,” it is easy to slide into the view
that genetic contribution is the essence of family and fatherhood.3 And if
proof of paternity by means of genetic testing establishes a duty of support,
then, the reasoning goes, exclusion through testing should end that duty.
Reliable evidence concerning the extent of misidentified paternity in the
general population is not available. There are some indications that the number
of cases may be surprisingly high.4 Historically, the law has favored familial
stability over genetic accuracy in attribution of paternity in circumstances
where definitive proof of paternity or nonpaternity was not obtainable. Science
and technology have all but eliminated these circumstances. Should the
law change as well?5
A REVIEW OF THE LEGAL LANDSCAPE
The stories of men such as Gerald Miscovich,6 Dennis Caron,7 and Morgan
Wise8 have been the catalysts for debate concerning a husband’s power to terminate
legal responsibility where testing reveals or confirms the absence of
biological relationship. Cases in which men attempt to end child support
obligations assumed in connection with a voluntary acknowledgment of
paternity raise a similar set of issues. Both kinds of cases create concerns
about the psychological, emotional, and financial
welfare of the children and adults involved as well as
concerns about fairness. Furthermore, the financial
importance of a parentage determination does not
end with child support; social security, health insurance,
survivors’ benefits, military benefits, and inheritance
rights hang in the balance. There are also
broader social policy considerations, even where the
disappearance from the scene of a presumed, an
acknowledged, or an adjudicated father has no consequences
for the public purse. If stable family units
are the foundation of a well-ordered society, the
destabilization of the family may lead to social chaos.
Nevertheless, the possible consequences of such policies
have not been widely recognized. While the men
bringing delayed disestablishment suits have often
been unsuccessful, losses in court have sometimes
translated into victories in the legislature.
A COMPLEX BACKGROUND
A long and convoluted history lies behind the presumption
that a husband is the legal father of the
children born to his wife during their marriage, a presumption
commonly referred to as the “marital
presumption” or “presumption of legitimacy,” and
with advances in testing, the application of the presumption
has become a matter of increasing
perplexity. California may be unusual among the
states in having a “conclusive” marital presumption,
but in fact even in California the situation is not as
simple as the adjective might suggest. Presumptions
linked to marriage are supplemented by other presumptions
based on a man’s conduct toward a child.
For example, in California, as in many states, a presumption
of paternity arises when a man receives a
child in his home and openly holds the child out as
his natural child.9
In virtually every state, the law in this area is
exceedingly complex. There are at least four sources
of complexity: statutes burdened with vestiges of
legal evolution, the interplay between family law and
rules of civil procedure, the application of equitable
doctrines, and constitutional constraints.
Statutes Burdened With Vestiges of
Legal Evolution
Historically, the marital presumption was perhaps
best characterized as a rule of evidence. Prior to the
development of blood tests capable of excluding biological
relationship, marital status was a reasonable
proxy for biological relationship in circumstances in
which a man’s status as progenitor could seldom be
established with certainty. Where the husband’s
paternity was a physical impossibility (that is, in
cases of absence, impotence, or sterility), the presumption
did not apply or could be rebutted. Yet
that was not the whole story; the courts developed
supplemental rules affecting standing and admissibility
of evidence that blocked challenges to legitimacy
even in cases where the biological fatherhood
of a man other than the husband was all but certain.
Hence, other social policy considerations, such as
protecting the institution of marriage or the welfare
of children, have long played a role in the application
of the presumption. With the emergence of
human leukocyte antigen (HLA) testing and then
genetic testing, some courts “converted” the presumption
to a substantive rule of law intended to
protect the integrity of the marital family or secure
the welfare of children.10
The process of historical evolution has, unfortunately,
left the law in many states with distinctions
that make little sense regardless of rationale. For
example, in keeping with the traditional formulations
removing cases of physical impossibility from
the scope of the presumption, California’s conclusive
presumption operates only if husband and wife are
“cohabiting” and the husband is not impotent or
sterile.11 A related statutory provision allows for challenges
based on blood tests, but only for two years
after the child’s birth.12 There is little logic here. If
marriage with cohabitation operates in paternity
determination as a proxy for biological paternity,
then blood-test evidence of the husband’s exclusion
as a potential biological father, like evidence of
impotence or sterility, should remove the case from
the scope of the presumption. If marriage with
cohabitation matters in paternity determination for
social policy reasons, then the same restrictions
should apply to all efforts to disestablish the husband
as legal father. Given the statutory language and
structure, though, at least one court has ruled that
proof of impotence or sterility is not subject to the
two-year limitation on motions for blood tests.13
In addition, in many states, statutory provisions
that relate to presumptions of paternity and actions
to establish the existence or nonexistence of paternity,
standing to invoke or challenge presumptions,
and time limits on these challenges have been drawn
from diverse sources over time and are lodged in
multiple sections of the family law code or title. For
example, in California, the conclusive presumption
has been grafted onto provisions drawn from the
Uniform Parentage Act (UPA).14 In other states, provisions
relevant to paternity establishment and disestablishment
may also be found in the law of trusts
and estates.15 In Florida, the law presents a confusing
jumble of presumptions and rules relating to obligations
of support derived from the common law and
statutory procedures for establishment of paternity
that can be traced back to a bastardy law enacted in
1828.16 It is not always clear how these provisions are
to be reconciled.
Interplay Between Family Law and
Rules of Civil Procedure
The mutual adjustment of provisions in the family
code—or a related body of substantive law—and
rules of civil procedure becomes an issue when a
man’s status as legal father has been created or
affirmed by a judgment or order, typically at the conclusion
of a divorce or paternity proceeding. For
example, in 1993 the Alabama Supreme Court
denied relief to a man who had reason to question
his biological relationship to the child in a paternity
proceeding but waited nine years to challenge the
paternity judgment with DNA evidence.17 The court
relied on a general rule of civil procedure rather than
any limitation in the law concerning parentage
determination itself; the procedural rule required
that a motion to reopen a judgment owing to mistake
or newly discovered evidence be filed within a
“reasonable period of time.” In 1994, apparently as a
reaction to the case, the Alabama Legislature passed
a law that allows a defendant declared a legal father
in a paternity proceeding to reopen the case at any
time with “scientific evidence” of nonpaternity.18
Likewise, the Maryland Court of Appeals ruled that
a statutory provision concerning paternity was subject
to a procedural rule that limited the authority of
trial judges to alter or amend a final judgment.19 The
state legislature “reversed” this ruling by passing a
law making an exception to the finality of paternity
orders where a blood or genetic test establishes the
exclusion of the individual named as the father in
the order.20
In a number of cases, courts have refused to find
in a woman’s silence or reassurance concerning
paternity the kind of extrinsic fraud necessary to
prompt the reopening of a final judgment. Morgan
Wise tried this strategy and lost. According to a
Texas court, Wise’s allegations that his ex-wife concealed
and lied about affairs did not establish extrinsic
fraud; rather, these were “allegations of intrinsic
fraud concerning an issue that was admitted, uncontested,
and settled in the divorce proceeding.”21
Application of Equitable Doctrines
In addition to the doctrine of res judicata, courts
may invoke a number of equitable doctrines to
change the outcome in paternity cases. In the context
of disestablishment cases, the most significant
may be equitable estoppel. Clevenger v. Clevenger22 is
perhaps the leading case in California on estoppel in
parentage disputes. According to the court, the elements
that must be proven to estop a husband from
asserting nonpaternity to avoid a child support obligation
are (1) the husband represented himself to the
child as the child’s natural father, (2) the husband
intended that his representation be accepted and
acted upon by the child, (3) the child relied upon the
representation and treated the husband as father, and
(4) the child was ignorant of the true facts.23 The
application of the doctrine in these circumstances is
justified by the benefits already enjoyed by the husband
and, perhaps more important, the prejudice to
the child’s interests. The “consequences and detriments”
of the representation include depriving the
child of an action to hold the natural father liable for
support at birth (through the mother) and inducing
the child to accept the husband as the child’s natural
father and render to him a child’s affection and love,
with the concomitant “reasonable expectation of
care, support and education until adulthood.”24 A
later case adds that an express representation of
paternity is not required where such a representation
can be inferred from the husband’s conduct.25
In cases that turn on the application of the doctrine
of equitable estoppel, the main points of contention
are whether the doctrine applies where the
man as well as the child was ignorant of the “true
facts” and whether and how financial detriment
enters the picture. On the first point, the courts
appear most ready to estop a presumed, an acknowledged,
or an adjudicated father asserting nonpaternity
where the man knew or should have known that
he was not the natural or biological father much earlier
in time and failed to act. On the second point,
courts appear most ready to estop where the alleged
detrimental reliance is at least in part financial and
there is reason to believe that another man would
have been pursued for support had the presumed or
acknowledged or adjudicated father taken himself
out of the way.26
Some commentators urge courts to consider possible
gender bias as they exercise their equitable powers.
When women advance estoppel arguments
against husbands and others on behalf of children,
they stand a good chance of losing, whereas men
have generally been successful with estoppel arguments
when women seek to oust the men from relationships
with children. In these cases, there may be
a tendency to label the men dupes and the women
schemers, with the inequitable application of the
doctrine of estoppel the possible result.27
Constitutional Constraints
Presumptions and other rules affecting parentage
determination may impinge on constitutional rights.
Usually, challenges are based on the due process
clause of the U.S. Constitution or a parallel provision
in a state constitution. One common scenario
involves a contest between a presumed father and a
putative biological father, where establishment of the
paternity of the latter amounts to disestablishment
of the former.
The most famous case of this nature is Michael H.
v. Gerald D.,28 decided by the U.S. Supreme Court in
1989. The issue in Michael H. was whether California’s
conclusive presumption of paternity could survive
a due process challenge by a man who had
obtained proof of his biological paternity through
genetic testing and had taken steps to develop a
parent-child relationship. A fractured Supreme Court
upheld the California law. Justice Scalia, writing for
the plurality, construed the due process clause as a
source of protection for traditional values. With reference
to a line of Supreme Court cases recognizing
fathers’ rights in relation to nonmarital children, he
wrote that those rights arose from the “sanctity” of
the “unitary family” rather than biological contribution.
Other justices were more solicitous of interests
based on biological connection plus some kind of
relationship.
Dawn D. v. Superior Court,29 decided by the California
Supreme Court in 1998, involved a triangle
similar to the one in Michael H. Since the husband
and wife were not cohabiting at the time of conception,
the conclusive presumption did not apply. The
challenge was to a statutory provision derived from
the UPA, which incorporates a more expansive and
less conclusive kind of marital presumption, as well
as other grounds for a presumption of paternity.
Standing to rebut this presumption is limited to
mothers, children, and presumed fathers. The putative
biological father in this case did not qualify as a
presumed father of any description because the
mother and her husband had prevented him from
developing a relationship with the child. The court
ruled that biological fathers do not have a constitutionally
protected liberty interest in being allowed to
form a parental relationship, and hence the restrictions
on standing were valid.30
Due process considerations were also a factor in
Brian C. v. Ginger K.,31 a contest between a man
claiming the protection of the conclusive marital
presumption and a putative biological father who
qualified as a presumed father because he had a preexisting
relationship with the mother and the child.
The court said that, under these circumstances, the
state interest in the integrity of the family was relatively
weak; in contrast to Michael H., there was no
extant marital union at the time of the child’s birth,
although the marital family re-formed thereafter.
Hence the due process rights created by a biological
connection plus a social relationship would be strong
enough to preclude application of the statute to deny
the putative biological father the opportunity to test
his claims through genetic testing.
In a third variation, in Susan H. v. Jack S.,32 an
alleged biological father used the conclusive marital
presumption as a defense to a paternity action
brought by the child’s mother, and the mother countered
that its application to block her suit would violate
the child’s due process rights. She asserted that
the child’s protected interests included an interest in
knowing the truth. In turning aside the due process
challenge, the court noted that in this case the biological
facts were fairly clear even in absence of a
judicial declaration and stated that it was “questionable
whether it is to the child’s benefit, emotionally
and developmentally, to establish biological parenthood
for some abstract interest in truthfulness.” The
U.S. Supreme Court dismissed similar interests in
Michael H., and other courts have rejected related
claims in cases involving access to adoption records.
The case law in other states is consistent with this
pattern, with wide variation in the kinds of interests
recognized as constitutionally protected and the
strength of the protection accorded those interests
when they conflict. In 1993, an Ohio court ruled
that a statute granting a putative biological father
legal standing to establish paternity in relation to a
child within an intact marital family violated the due
process clause of the state constitution by infringing
on the right to marital privacy and the right to raise
children without state-authorized intrusion. The
court found the state’s interest in determining paternity
strictly on the basis of genetics “at most insubstantial,
if not completely nonexistent.”33 One year
later, in striking down a state statute denying a putative
father standing to establish paternity, the Texas
Supreme Court expressed the view that the state’s
interest in minimizing familial disruptions may have
“had merit in an earlier era when the true biological
father could not be established with near certainty
and when illegitimacy carried a significant legal and
social stigma,” but that it no longer did.34
Rules affecting determination of paternity may
also be challenged on equal protection grounds. In
Florida, the procedure for establishment of paternity
for children born “out of wedlock” can be traced
back to the Florida Bastardy Act. As late as the
1970s, the right to bring an action was limited to
unmarried women. A married woman who wished
to establish the paternity of a man not her husband
challenged this restriction. The Florida Supreme
Court, in Gammon v. Cobb, noted the potential for
“anomalous” situations where “the reputed father of
an illegitimate child born to his wife can attack the
child’s parentage and be relieved of the obligation to
support the child, but at the same time the wife may
not maintain a suit to compel the putative or natural
father to provide support for the child.”35 Given
that the purpose of the law was to protect the interests
of (illegitimately conceived) children and
impose a support obligation on natural fathers, the
portion of the law limiting actions to unmarried
women was unconstitutional.
Equal protection issues also arise in connection
with “backlash” laws of the type discussed in greater
detail later in this article. An early example illustrates
the point. As noted above, the Alabama Legislature,
as a reaction to a specific case, passed a law allowing
a defendant declared a legal father in a paternity proceeding
to reopen the case at any time with scientific
evidence of nonpaternity.36 By its terms, the law benefits
only male defendants; it would not appear to
allow a mother or child to reopen a case on the basis
of scientific evidence. In fact, an equal protection
challenge to the law surfaced in the case of S.M.V. v.
D.W.M.,37 but the appellate court declined to address
the issue as it was not raised before the trial court.
POLICY CONSIDERATIONS
A basic question underlying much of the policy
debate regarding parentage determination is, To what
degree should biology control the formation of families
and, more particularly, the award of the rights
and responsibilities of parenthood? The possible
responses can be organized in terms of four positions.
1. Biological imperative. For those who adopt this
position, legal rules and outcomes are, or ought to
be, dictated by biology. Parenthood and the rights
and responsibilities associated with parent-child relationships
are seen as necessarily grounded in and
flowing out of biological relationships. This is an
ancient and still highly influential way of thinking
about the family. On the one hand, this position
may reflect a view that biological connection itself
creates a bond between parent and child so strong
that separation is virtually unendurable, so powerful
that the biological parent is compelled to subordinate
his or her own interests to those of the child.
Therefore, biological matching of parent and child
must, in some sense, advance the welfare of the
child, since the parent known or revealed as having a
mere social connection to the child will inevitably
fail to fulfill the child’s deepest needs. This view may
be fostered and strengthened by the increasing attention
to genes and genetics in the media. On the
other hand, the biological imperative may be viewed
solely in terms of financial responsibility. Engaging
in activity that may produce a child creates a duty to
pay; conversely, one should not be required to pay
for a child for whom one is not causally responsible.
2. Biological presumption. For those who adopt this
position, all other things being equal, biology controls.
In other words, claims based on biology may
sometimes be limited to accommodate important
individual rights and interests (child or adult) or to
serve the interests of society, but the burden of proof
is clearly on the one arguing for a departure from
court found the state’s interest in determining paternity
strictly on the basis of genetics “at most insubstantial,
if not completely nonexistent.”33 One year
later, in striking down a state statute denying a putative
father standing to establish paternity, the Texas
Supreme Court expressed the view that the state’s
interest in minimizing familial disruptions may have
“had merit in an earlier era when the true biological
father could not be established with near certainty
and when illegitimacy carried a significant legal and
social stigma,” but that it no longer did.34
Rules affecting determination of paternity may
also be challenged on equal protection grounds. In
Florida, the procedure for establishment of paternity
for children born “out of wedlock” can be traced
back to the Florida Bastardy Act. As late as the
1970s, the right to bring an action was limited to
unmarried women. A married woman who wished
to establish the paternity of a man not her husband
challenged this restriction. The Florida Supreme
Court, in Gammon v. Cobb, noted the potential for
“anomalous” situations where “the reputed father of
an illegitimate child born to his wife can attack the
child’s parentage and be relieved of the obligation to
support the child, but at the same time the wife may
not maintain a suit to compel the putative or natural
father to provide support for the child.”35 Given
that the purpose of the law was to protect the interests
of (illegitimately conceived) children and
impose a support obligation on natural fathers, the
portion of the law limiting actions to unmarried
women was unconstitutional.
Equal protection issues also arise in connection
with “backlash” laws of the type discussed in greater
detail later in this article. An early example illustrates
the point. As noted above, the Alabama Legislature,
as a reaction to a specific case, passed a law allowing
a defendant declared a legal father in a paternity proceeding
to reopen the case at any time with scientific
evidence of nonpaternity.36 By its terms, the law benefits
only male defendants; it would not appear to
allow a mother or child to reopen a case on the basis
of scientific evidence. In fact, an equal protection
challenge to the law surfaced in the case of S.M.V. v.
D.W.M.,37 but the appellate court declined to address
the issue as it was not raised before the trial court.
POLICY CONSIDERATIONS
A basic question underlying much of the policy
debate regarding parentage determination is, To what
degree should biology control the formation of families
and, more particularly, the award of the rights
and responsibilities of parenthood? The possible
responses can be organized in terms of four positions.
1. Biological imperative. For those who adopt this
position, legal rules and outcomes are, or ought to
be, dictated by biology. Parenthood and the rights
and responsibilities associated with parent-child relationships
are seen as necessarily grounded in and
flowing out of biological relationships. This is an
ancient and still highly influential way of thinking
about the family. On the one hand, this position
may reflect a view that biological connection itself
creates a bond between parent and child so strong
that separation is virtually unendurable, so powerful
that the biological parent is compelled to subordinate
his or her own interests to those of the child.
Therefore, biological matching of parent and child
must, in some sense, advance the welfare of the
child, since the parent known or revealed as having a
mere social connection to the child will inevitably
fail to fulfill the child’s deepest needs. This view may
be fostered and strengthened by the increasing attention
to genes and genetics in the media. On the
other hand, the biological imperative may be viewed
solely in terms of financial responsibility. Engaging
in activity that may produce a child creates a duty to
pay; conversely, one should not be required to pay
for a child for whom one is not causally responsible.
2. Biological presumption. For those who adopt this
position, all other things being equal, biology controls.
In other words, claims based on biology may
sometimes be limited to accommodate important
individual rights and interests (child or adult) or to
serve the interests of society, but the burden of proof
is clearly on the one arguing for a departure from
biology. By making biology nearly, but not quite,
controlling, it is possible to preserve some of the
benefits associated with having a “bright-line” rule—
for example, efficiency in decision making, with
fewer cases going to the courts and faster resolution
when they do. Also, if the belief that genetically
related adults are likely to be better nurturers of children
than other adults has any truth to it, there is
reason to favor biology, with exceptions permitted
only to avoid bad results or serious violations of
rights in particular cases. By allowing some room for
rights and other types of claims not based in biology,
this position is in line with broader trends in law and
public policy concerning the family. For example,
intention has become increasingly important in family
law, as reflected in cases dealing with assisted
reproduction. In addition, there has been a movement
to make the best interest of the child the standard
for decision making in areas of law affecting
children despite worries that it is vague and open to
bias in application.
3. Biological relevance. Relevance means that biology
counts—along with other factors. Biology is entitled
to some weight, but it is not the whole story nor perhaps
even the most important part of the story. The
view that biological relationship is the exclusive
determinant or essence of the parent-child relationship
has never been without challenge. The Romans
used the term alumnus to designate an abandoned
child taken in and raised by a biological stranger.
Inscriptions establish that such children were cherished,
and indeed, such an arrangement could be
cited as a model of the kind of disinterested love and
kindness characteristic of the highest forms of
human relationship.38 A contemporary parallel would
be the celebration of “psychological parenting.” As
Goldstein et al. define the term, “for the child, the
physical realities of his conception and birth are not
the direct cause of his emotional attachment. This
attachment results from day-to-day attention to his
needs for physical care, nourishment, comfort, affection,
and stimulation.”39 A reduction in the emphasis
on the biological tie may also reflect greater comfort
with the idea that, through their relationships with
children, presumed fathers may incur responsibilities
that continue even after the biological basis for the
relationship is revealed as an illusion. While the law
cannot force men to continue as psychological parents,
it could foster and reinforce an expectation that
bonds of affection and care nourished over time will
sustain the relationship once the initial shock of a
finding of biological exclusion has passed.
4. Biological indifference. Opposite the biological
imperative is the position that biology is a matter of
indifference. According to this view, policy, and outcomes
in particular cases, should be dictated by one’s
intention to parent, one’s engagement in parenting
behavior, considerations of child welfare, or social
factors such as the goal of strengthening the institution
of marriage. If biology is to be considered at all,
it is solely as a matter of convenience. For example,
for pragmatic reasons, a society might decide that
children should stay with birth parents unless and
until some kind of dispute arises. In the event of dispute,
the judge charged with assigning parental
rights and responsibilities would ask which person
would be the better parent—that is, the more nurturing
parent, the more consistent presence, the one
better equipped financially to support the child, and
so on. Biological relationship to the child would
have no independent significance.
The “biological imperative” position seems to
show up most frequently in concurring or dissenting
opinions, suggesting that it is somewhat idiosyncratic
among judges. Concurring in part and dissenting
in part in a disestablishment case, a justice on the
Alabama Supreme Court wrote: “While debate continues
over the relative influences of heredity and
environment, one thing is clear—the mystic bonds
of blood are strong. The strength of these bonds is
illustrated in various ways and is observable in ordinary
experience. A familiar example is that of adopted
children who are nurtured to maturity by
exemplary adoptive parents, but, nevertheless, ultimately
feel compelled to seek out their biological
parents. . . . A strong sense of personal identity is an
asset, and personal identity derives in large measure
from knowledge of, and association with, individuals
of biological kinship.”40 Allied with this view are
statements that science promises truth concerning
fatherhood. For example, in his Michael H. dissent,
Justice Brennan wrote that California law “stubbornly”
insisted on labeling the mother’s husband as
father in the face of evidence showing a 98 percent
probability to the contrary.41 The idea of a biological
imperative also appears to exert considerable influence
on some state legislators, as discussed in the
next section.
The two intermediate positions are, perhaps predictably,
given wider expression. Their influence on
legislators can be detected in “hybrid” statutes that
make biology determinative for a limited period of
time, and their influence on judges is reflected in a
willingness to moderate the effects of bright-line
rules in disestablishment cases. In re Paternity of
Cheryl, decided by the Supreme Judicial Court of
Massachusetts in 2001, is a good illustration.42 In
that case, a man who became a legal father by means
of a voluntary acknowledgment moved to set aside
the judgment based on genetic tests obtained five
years later. The court ruled against him in light of his
failure to exercise his right to genetic testing before
acknowledgment, evidence of the development of a
father-child relationship, and his persistence in the
relationship even after he had reason to suspect an
absence of biological connection. The court affirmed
the public interest in the finality of paternity judgments,
citing the best interest of the child. Furthermore,
in the best-interest analysis the court stressed
stability and continuity. The court was careful to
note the empirical foundation for this weighting of
factors: “Social science data and literature overwhelmingly
establish that children benefit psychologically,
socially, educationally and in other ways
from stable and predictable parental relationships.
This holds true even where the father is a noncustodial
parent or where the stable relationship is with an
individual not genetically linked to the child.”43 Yet
the court did not declare biology irrelevant. Having
noted the anomaly of continuing to enforce a legal
relationship that was based solely on an asserted biological
connection in the face of proof of that connection’s
absence, the court suggested that a different
result might be required if a man challenged a paternity
judgment promptly upon obtaining information
raising doubts about the judgment’s biological basis.
Intermediate positions allow for considerable flexibility
and may be associated with greater receptivity
to nonexclusive family structures. In Louisiana, cases
brought by marital children seeking benefits based
on recognition of the paternity of their extramarital
biological fathers opened the door to a variety of
actions, eroding the “fiction” that the legal father was
the only father.44 But the legal or presumed father
did not simply go away. The Louisiana courts recognize
the potential for continuing responsibilities and
rights if no disavowal is made within the statutorily
prescribed period and if this continuation is in the
best interest of the child.
The judgment whether the legal or presumed
father’s continued involvement would be in the
child’s best interest is context-specific. For example,
in Geen v. Geen,45 the legal father and primary custodial
parent retained that status even after testing
proved that another man, who eventually married
the mother, was the biological father, and even after
the mother and her new husband sought custody.
The decision rested on a best-interest analysis that
gave most weight to psychological parenthood:
“Geen has provided Ryan with a stable, wholesome
environment, a permanent custodial home, and a
close and continuing, loving relationship since
Ryan’s birth, always putting Ryan’s interest above his
own. He has fed him, dressed him, bathed him, provided
medical care, and selected a school, after thoroughly
investigating that school. From the very
beginning, he has encouraged and facilitated a close
and continuing relationship between Ryan and his
other two parents.”46
As might be expected, adoption of the position of
biological irrelevance is rare in law. Both Justice
Scalia in his Michael H. opinion and the Ohio court
that held unconstitutional a challenge to a husband’s
paternity use language suggestive of that position,
but in the specific context of a third-party challenge
to the sanctity of the intact marital family.47 In a
number of states, it is at least clear that biological
relationship is not privileged. The Supreme Court of
Hawaii recently declared that the presumption of
paternity based on genetic testing “is not more
important” than other presumptions, such as the one
based on marriage.48 The Supreme Court of Colorado
has strongly affirmed that the best interest of
the child must be the paramount consideration
throughout any paternity proceeding.49
California’s semiconclusive, semirebuttable presumption
of a husband’s paternity within marriage
suggests a position of biological relevance: biology is
not the whole story or even the most important part
of the story. The guiding philosophy of the state
statutory scheme might be described as “biology will
control determination of paternal responsibility for a
limited period early in a child’s life” and thereafter
the “predominant consideration” will be social relationship.
50 An alternative reading, based on the case
law, is that biology plus a social relationship always
controls, absent a powerful countervailing private
interest supported by the public interest. Courts
have readily suspended the operation of the marital
presumption when they find that the underlying
policy of preserving families is not advanced.51 This
is most likely to occur where a marriage has fallen
apart before the battle over paternity, although one
court has suggested that the state’s interest in preserving
and protecting the dignity of parental relationships
comes into play “especially when a marriage
is being dissolved and instability is being introduced
into a child’s life.”52 In cases involving nonmarital
children, there are frequent statements that biology
is not as important as an ongoing parent-child relationship.
53
In California, as in other states, there is considerable
turbulence at the moment. In a case decided in
2002, the San Francisco Department of Human
Services sought to disestablish a willing, albeit somewhat
erratic, presumed father. (This is notable
because in cases where a man is subject to a child
support order and there is no other potential father
in the picture, the state child support enforcement
authority, at least, is typically inclined to ignore biology.)
In re Raphael P.54 involved a nonmarital child.
Initially, the appellate court in Raphael P. concluded
that the California statute compels judges to conform
legal status to the biological evidence. However, a
footnote to that ruling suggested some wrestling
with the implications of landing at various points on
the spectrum of positions:
We recognize that the policy implications of any
given means of determining paternity (and maternity)
are tremendous. When confronted with a man
who has every reason to believe he is a child’s biological
father and who has developed a strong paternal
relationship with a child who has no other
parent able to assume parental responsibility, it may
seem quite difficult to justify termination of the
existing relationship solely because of a belated discovery
of the absence of a biological tie. On the
other hand, obvious problems would be created by
a statutory scheme that allowed any person, however
unrelated, to forge a parental type relationship
with a child which could then potentially be used to
assert rights against the child’s relatives (by blood or
marriage).55
And indeed, on rehearing the Court of Appeal
reversed itself.
In June 2002, the California Supreme Court
weighed in on the issue in a different case. The question
in In re Nicholas H.56 was whether a presumption
of fatherhood based on receiving a child in the home
and holding out the child as one’s own is necessarily
rebutted when the presumed father seeking parental
rights admits that he is not the biological father. The
statute, in relevant part, provides that such a presumption
“is a rebuttable presumption affecting the
burden of proof and may be rebutted in an appropriate
action” by clear and convincing evidence.57 The
court’s answer to the question turned on its interpretation
of the phase “appropriate action.” The court
ruled that an action is not appropriate where there is
a presumed father who has an established relationship
with and has taken responsibility for the child and
there is no other candidate for the privilege and
responsibility of fathering the child.
THE LEGISLATIVE-BACKLASH
PHENOMENON
Fathers’ rights groups have been vocal participants in
debates over the significance of genetic testing for
family relationships. Cases in which men are refused
release from obligations to children in the face of
genetic test results excluding them as biological
fathers—or, alternatively, are refused genetic testing—
have prompted vigorous advocacy for change
in the law. Those within the fathers’ rights movement
tend to view family law through the lens of
criminal law. The crusade to free men of unwanted
paternity in such cases is presented as a kind of
“Innocence Project.”58 It is common to find the issue
framed as one of justice or fairness, in the sense that
evidence admissible to “convict” should also be available
to “exonerate.”59
Anger and a desire to strike back at the women
involved have clearly been significant factors in the
movement, and the same complex of emotions may
motivate some disestablishment suits. The Web site
for the group U.S. Citizens Against Paternity Fraud
is the most emphatic in this regard; it compares
paternity fraud to rape and includes a “Hall of Paternity
Fraud Victims.”60 In media interviews and documents
filed with courts, the men challenging court
orders will often say that they do not necessarily
want to discontinue support for a child.61 Rather,
they want to end the legal obligation to pay child
support viewed as flowing to the women who
deceived them in two ways, by cheating on them and
by lying to them about a child’s paternity.62
In some cases the insult seems fresh, but in others
long-simmering suspicions, perhaps suppressed or
contained in the interests of maintaining a valued
relationship with a child, prompt action when a
request is lodged for increased child support or the
man starts another family.63 The cynical interpretation
is that fatherhood is embraced unless and until
it becomes inconvenient. More charitably, financial
or other competing interests fuel resentment against
the mother and the legal system for its imposition of
responsibilities. The result is a readiness to file an
action to disavow paternity, with its implicit rejection
of the child, and, if need be, to end the relationship
altogether. Men who experience some
trigger event will find a “cultural script” to guide
response to their predicament that gives little or no
place for empathy, care, and caution.
Such niceties have not counted for much where
anger over the outcome of a particular case has
fueled fierce lobbying in the legislature for a law to
correct the perceived injustice. One instance of legislative
backlash occurred in Ohio. In 2000, following
the uproar over the treatment of Dennis Caron,64
Ohio passed a law requiring relief from child support
orders at any time upon proof of biological exclusion.
The right of action is limited to the men subject
to the orders.65 The evidence must be in the form
of a genetic test showing zero probability that the
man is the father of the child. A marriage to the
mother or any admission or acknowledgment of
paternity is irrelevant if the man was not aware of his
nonpaternity at the time. The court is empowered to
issue an order canceling any child support arrearages,
and the man is free to commence an action to recover
child support already paid. The law includes a
declaration that it is a man’s “substantive right” to
obtain the contemplated relief.
Carnell Smith’s case66 had a similar influence in
Georgia. A bill signed into law on May 9, 2002,
allows a “male ordered to pay child support” to file a
motion to set aside a paternity determination at any
time based on newly discovered evidence.67 Relief is
mandatory if specified conditions are satisfied, e.g.,
testing was properly conducted, the man did not act
to prevent the biological father from asserting his
rights, and the man did not voluntarily assume the
support obligation with knowledge that he was not
the biological father.
Targeted laws set the stage for a broader assault on
what is perceived as an unjust status quo. On February
20, 2002, a member of the California Legislature
introduced a bill proposing a new section of the
Family Code under the title “Paternity Justice Act of
2002.”68 As introduced, it included the following
legislative declarations:
■ In the year 2000, the State of California recognized
the validity of DNA testing and created a
procedure for an individual convicted of certain
crimes to petition a court to reopen his or her case.
■ A growing number of states now have antifraud
paternity statutes permitting an individual previously
adjudicated to be the father of a child to
reopen his case and present or obtain DNA testing
if he believes he may have been erroneously
identified as the father.
The proposed bill provided that fathers’ rights
advocacy groups were to be consulted in development
of the form used for voluntary declaration of paternity,
and that the form would have to include, in underlined
boldface type, a statement by the mother that
the man who had signed was the only possible father
(thereby establishing the basis for a charge of perjury).
The core provision allowed a man previously named
as a child’s father in a judgment to move to vacate that
judgment if genetic testing yielded a finding of exclusion
after the time period for motions to vacate generally
had expired. If the man was excluded as the
biological father, the bill required the motion to vacate
to be granted with few exceptions. The bill passed,
though with modifications, such as a provision giving
judges discretion to deny a motion based on the best
interest of the child, but was later vetoed by Governor
Gray Davis. The concept of “paternity fraud” also surfaced
in a Vermont bill, introduced in the 2001–2002
session, subjecting a “person who knowingly and
intentionally alleges that a person is the biological
father of a child when such person knows the allegation
to be false” to imprisonment for up to two years
or a fine of up to $5,000, or both.69
THE UPA 2000 AND THE ALI’S
PRINCIPLES OF DISSOLUTION
The revised Uniform Parentage Act (UPA 2000), like
the original UPA, includes a presumption of paternity
based on the existence of a social relationship plus
conduct indicative of a parental relationship.70 The
UPA 2000 eliminates the rule resolving conflicts
among competing presumptions according to “the
weightier considerations of policy and logic” on the
grounds that “the existence of modern genetic testing
obviates this old approach.” A proceeding to
adjudicate parentage for a child with a presumed
father may be commenced within two years after
birth (versus five years in the original UPA), but not
thereafter.71 There is also a two-year window for challenges
to voluntary acknowledgments of paternity
on the basis of “fraud, duress, or material mistake of
fact” once the rescission period has passed.72 The
child is not legally bound by a determination of
parentage under the act unless the outcome is supported
by genetic test results or he or she is represented
in the proceeding.73
The article concerning genetic testing authorizes a
court to deny a request for genetic testing where
there is a presumed father if (1) the conduct of the
mother or presumed father estops that party from
denying parentage and (2) disproving the relationship
would be “inequitable.”74 The model law provides
that in making its determination, the court
“shall consider the best interest of the child,” to
include, among other things, the length of time
elapsed since the presumed father was placed on
notice that he might not be the genetic father, the
length of time the presumed father occupied the role
of father, the facts surrounding the discovery of possible
nonpaternity, the nature of the father-child
relationship, the child’s age, the potential harm to
the child, and the potential for establishing paternity
with respect to another man. In such a case, a
guardian ad litem is to be appointed for the child. A
denial of testing by a judge would have to be based
on clear and convincing evidence.
If a child has a presumed, an acknowledged, or an
adjudicated father, the results of genetic testing are
inadmissible to adjudicate parentage unless the test
was performed with the consent of the mother and
father or pursuant to a court order.75 According to
the commentary in an earlier draft of the UPA 2000,
this subsection “is intended to discourage unilateral
genetic testing, usually done in the context of a suspicious
spouse seeking to determine whether a child
is actually the child of the presumed father”; if “such
testing cannot be stopped,” then at least the results
can be excluded.76 It appears that those able to afford
a first round of surreptitious testing to confirm suspicions
and a second round of testing in the context
of a court proceeding would not be affected.77
To date, the UPA 2000 has been enacted by four
states, Delaware, Texas, Washington, and Wyoming.78
Some commentators have asserted that the guidelines
for the exercise of judicial discretion are too
vague.79 For example, the law does not provide clear
guidance to judges faced with contests between
putative biological fathers and presumed fathers during
the first two years of a child’s life, although the
commentary concerning the handling of contests
between multiple presumed fathers and the genetictesting
chapter suggest that biology will almost
always prevail.
The American Law Institute (ALI) takes a somewhat
similar position on these issues in its Principles
of the Law of Family Dissolution.80 The ALI principles
are concerned with custody decisions and determination
of child support obligations rather than parentage
determination per se. In keeping with an emphasis
on the functional components of parenting, the definition
of parent includes not only the persons
defined as parents under other state law, but also a
“parent by estoppel,” e.g., an individual who had a
reasonable, good-faith belief that he was the child’s
father, lived with the child, and fully accepted the
responsibilities of parenthood for at least two years.81
In deciding whether to impose a support obligation
upon a person who is not a legal parent, courts must
consider factors such as how the person and the child
have acted toward each other, whether the relationship
supplanted the child’s opportunity to develop a
relationship with an absent parent, and whether the
child otherwise has two parents who are able and
available to discharge obligations of support.82
Like the UPA 2000 provisions on genetic testing
in the presumed-father scenario, the ALI principles
have been faulted for failing to provide clear guidelines
to judges.83 Examples are offered, but these do
not address the middle-range cases on the spectrum
between an 11-year familial relationship and a relationship
that terminates before a child’s birth. On
estoppel, the drafters have been accused of ignoring
the case law. According to Theresa Glennon,
[a] close examination of the reasoning on behalf of
the Principles’ approach to estoppel and the reasoning
adopted by the majority of courts reveals two
very different approaches to the underlying issues.
These issues involve: the effect of prior financial
support and development of a social relationship;
the motives of men who seek to disestablish paternity
upon divorce; and basic notions of fairness.84
In the drafters’ defense, it might be argued that these
issues are intertwined. An evaluation of the prospects
for restoring or holding together functional relationships
rests in part on an assessment of the quality of
such relationships, in the particular case and in general,
and on the factors behind challenges to legal
obligations. Fairness is both a criterion for assessment
of conduct within a relationship, at least
among adults, and an independent consideration
that may complement or compete with a determination
based upon the best interest of the child or societal
welfare. Still, greater clarity in this area would
be beneficial.
SURVEY OF CURRENT OPTIONS
AND POINTS TO BE CONSIDERED
The possible responses to disestablishment suits
include a straightforward best-interest-of-the-child
analysis, a statute of limitations approach that makes
the lapse of time the decisive factor, a hybrid approach
that combines a time bar with a best-interest analysis
in at least some spheres (as with the UPA 2000
and the ALI principles), and the “DNA-testingyields-
truth” approach reflected in laws removing
any bar to the introduction of genetic evidence to
end a legal obligation, at least by the man who is the
subject of the obligation.
Proposed, but not yet adopted in any jurisdiction,
is a preventative variation of the DNA-testing-yieldstruth
approach: mandatory genetic testing at birth or
at some other key juncture. This may seem far-fetched,
but it is being taking seriously in some quarters. In
the course of oral argument for a disestablishment
case involving the presumed father of a marital child,
a justice on the Florida Supreme Court queried, “Are
we really saying . . . in the future DNA testing will
have to be part of every divorce or custody hearing?”
85 At least one Florida legislator thought the
answer was yes. House Bill 73, prefiled in 2001 but
withdrawn prior to introduction, would have
required DNA paternity testing in all divorce and child
support proceedings. And the Supreme Judicial Court
of Massachusetts, in a footnote in Cheryl, stated:
Where the State requires an unmarried woman to
name her child’s putative father, the department
should require that the parties submit to genetic
testing prior to the execution of any acknowledgment
of paternity or child support agreement. To
do otherwise places at risk the well-being of children
born out of wedlock whose fathers subsequently
learn, as modern scientific methods now
make possible, that they have no genetic link to
their children.86
A countervailing consideration in the public context
is the cost of genetic testing. Glennon appears to
favor testing at birth in all public and private cases as
a matter of child advocacy.87
Whatever general approach is selected, it must
be implemented through a series of more specific
choices, including
1. what standards to adopt for genetic testing
2. who has standing to bring an action that has
the effect of disestablishing a presumed or an
acknowledged or adjudicated father
3. whether a judge has discretion to block testing of
children with presumed fathers, and if the judge
does, the factors to be considered in his or her
analysis as well as the possibility of legal recognition
of dual paternity
4. whether any modification of a judgment based on
genetic testing is purely prospective (i.e., whether
there is potential for recovery of child support
already paid or cancellation of arrearages)
5. whether an action is permitted against the child’s
mother to recover child support already paid, legal
expenses, and, potentially, damages for infliction
of emotional distress, in addition to or as an alternative
to other kinds of relief
6. whether mediation or court-ordered family counseling
is encouraged or required
7. whether estoppel arguments are permitted and
under what circumstances
1. Testing standards. Although some legislators and
judges, and much of the public, take the view that a
“genetic test” will provide certainty concerning biological
relationship, as a technical matter this is simply
not true. Standards may vary even among
reputable laboratories. Experts continue to dispute
the definitiveness of results from a single round of
testing with the widely used polymerase chain reaction
(PCR) method. Even without mistakes in sample
collection, handling, analysis, or interpretation
of results, a finding of inclusion may be reversed
with further testing, as in the case of Cauthen v.
Yates.88 Given a trajectory of continuing scientific
and technological progress, there is also the question
of whether to permit a case to be reopened for technical
reasons. In Manning v. Manning,89 the court
refused to order further testing absent proof by the
plaintiff that a new test would yield a result different
from the test used in the initial proceeding.
Genetic testing remains a matter of probabilities
based on a variety of assumptions. The UPA 2000
allows for a determination of paternity based upon a
99 percent probability of paternity, using a prior
probability of .50, and a combined paternity index
of at least 100 to 1. According to the comments, the
standard was chosen primarily because it conformed
to then-current industry practice and could likely be
met even in cases involving degraded specimens or
missing individuals.90 The drafters note that even
results above this threshold are rebuttable and that a
second round of testing will be ordered upon
request. However, unsophisticated parties may not
understand the technical issues well enough to know
when a second round of testing is advisable.
Consent issues add a layer of complexity. Some
courts appear little troubled by evidence of a first
round of private testing conducted on a presumed
father’s initiative without the consent of the mother.
91 In barring any action to determine the nonexistence
of a father-child relationship unless DNA test
results showing exclusion are first obtained, Illinois
may provide an incentive to surreptitious testing.92
The Massachusetts high court had this to say
about consent:
The father apparently obtained the genetic tests on
the advice of counsel in 1999. It is, therefore,
unlikely that he could be denied relief on the basis
of unclean hands. We nevertheless note that the
father should have obtained the mother’s approval
before subjecting Cheryl to the genetic tests, particularly
where, as here, a judge had denied him that
relief. The father points out that no judge explicitly
prohibited him from obtaining the test, that he
took Cheryl for testing during a legal visitation
period, and that the test posed virtually no risk of
physical pain or trauma. Even if the father is correct
on each point, absent emergency circumstances, a
noncustodial parent must consult with the parent
with legal custody of a child before subjecting a
child to a medical procedure that may have a significant
effect on the child’s emotional development.
Because the results of a paternity test may, as
in this case, lead to protracted paternity litigation,
serious conflict between the parents, identity confusion
for a child, and an incentive for a parent to
withdraw emotional or financial support, the agreement
of the child’s legal custodian or an order of the
court would in most circumstances be required
before the noncustodial parent may submit the
child to genetic marker and blood group testing
years after a paternity judgment has entered.93
Further complicating matters, it is apparently not
uncommon for the paternal grandparents to under-
take testing in the first instance, and some laboratories
in fact advertise “grandparent tests.”94
If the courts hearing paternity cases fail to sanction
testing without proper consent, those adversely
affected may have little recourse. Genetic information
about paternity is often excluded from the protections
contained in state genetic privacy laws.
Further, in the majority of states that have such laws,
protections are restricted to information or testing
relating to a disease, disorder, or syndrome or an illness
or impairment. Beyond this, many genetic privacy
statutes affect only the conduct of insurers or
employers, although a few require that “any person”
obtain informed consent before performing a genetic
test. There are also jurisdictional issues if the person
collecting the sample and the laboratory
performing the analysis are in different states, as may
well be the case with testing by mail. Although it is
important for judges to be alert to privacy issues, the
concern expressed by one court over potential insurance
or employment discrimination is probably not
justified where testing is confined to noncoding
regions of DNA, at least so long as there is adequate
provision for sample destruction.95
2. Standing. Standing issues have been discussed at
some length above. In cases involving the usual triangle
of husband, wife, and putative biological father,
any court will have to take into account the analysis
of constitutionally protected interests in Michael H.
and subsequent cases. More open structures, such as
found in the UPA 2000, seem to invite new categories
of actors who are differently motivated to disestablish
paternity. Examples include the state or a
state surrogate, as in Raphael P., or paternal grandparents.
Here, too, there may be constitutional
issues.96 With regard to laws that mandate the
reopening of paternity judgments because of “scientific
evidence” but restrict these actions to male
defendants in child support actions, more equal protection
challenges should be anticipated.
3. Judicial discretion and factors to be considered.
In some states, the best-interest analysis simply has
no place in decision making about testing or paternity
paternity
determination, although the best interest of the
child may be considered in relation to such corollary
matters as custody or visitation. In other jurisdictions,
a best-interest analysis is possible only prior to
testing; once a finding of exclusion exists, it must be
given legal effect through disestablishment of paternity.
This seems unfortunate, since the interests
affected by the generation of information through
genetic testing may be different, or balance differently,
from the interests affected by determinations
of legal paternity and decisions concerning support,
visitation, and custody.
Some elements are virtually always considered as
part of a best-interest analysis, such as the desirability
of permanence or stability in the life of a child and
provision for material support. Unfortunately, there
are no studies that track the effects of different decision
rules or guidelines on child welfare. Those who
endorse multiple fatherhood must address the concern
that diffusion of responsibility will lead to neglect
on the part of the parents and confusion on the
part of the child. Other elements particularly relevant
to the genetic-testing context include identity
formation and interests related to health or medical
care. Some have put forward a concept of “genealogical
bewilderment” to describe the negative psychological
consequences of ignorance of one’s origins,
but the primary evidence for such a phenomenon
appears to be literary (e.g., the Oedipal myth and the
story of the Ugly Duckling) and anecdotal.97 The
legislative findings and declarations accompanying
the California law on voluntary acknowledgment of
paternity include the statement that “knowledge of
family medical history is often necessary for correct
medical diagnosis and treatment.”98 Courts may be
more inclined to recognize an interest in an accurate
family medical history than an abstract “right to
know” one’s origins.99
Theresa Glennon offers the Oklahoma statute as
a model for guidance on best-interest analysis. The
Oklahoma law “looks to readily identifiable factors,
such as the child’s age and residence with the alleged
parent,” and hence “gives courts a more easily
administrable guideline and prevents courts from
having to engage in more detailed, time-consuming,
and ultimately confounding inquiries into the
‘strength’ of the parent-child bond.”100 Glennon
favors tailoring time limits and restrictions on disestablishment
of paternity to child welfare. In other
words, the best interest of the child would trump
adult interests. Her argument is reproduced here
because it addresses some of the concerns about fairness
raised by fathers’ rights groups:
While some individuals are innocent victims of
deceptive partners, adults are aware of the high incidence
of infidelity and only they, not the children,
are able to act to ensure that the biological ties they
may deem essential are present…. The law should
discourage adults from treating children they have
parented as expendable when their adult relationships
fall apart. It is adults who can and should
absorb the pain of betrayal rather than inflict additional
betrayal on the involved children.101
The most compelling argument from the fathers’
rights advocates may be their assertion that it is fundamentally
unfair to hold a man liable for financial
support while giving him no protected interest in the
opportunity to develop a relationship with a child.102
If the notion of fatherhood as necessarily an exclusive
status is abandoned in nontraditional family situations,
it becomes easier to join responsibilities with
at least some correlative rights.
The empirical assumptions underlying a more-orless
conclusive, exclusive presumption of paternity
include
■ a man can function as a good parent even where
a question has been raised about his genetic connection
to a child;
■ a marriage can survive the shock of an allegation
of infidelity relatively intact;
■ social relationships are more important contributors
to well-being than genetic relationships, e.g.,
having an intact family is more important to the
child’s well-being than having an accurate understanding
of genetic origins; and
even though social relationships count for more
than genetic relationships, it is important to preserve
the appearance of a neat family unit in
which genetic and social relationships are aligned;
therefore secrecy, or the suppression of information
about (the absence of ) genetic connection,
may be required for a man to function as a good
parent or for a marriage to survive.
The last assumption seems particularly difficult to
sustain given the increasing prevalence of blended
families. Culturally, the blended family is less of an
oddity than it once was, and hence social isolation or
rejection is unlikely to result from acknowledgment
of familial complexity in the area of biological and
social relationship. Further, some studies conducted
in the context of assisted reproduction have found
that openness concerning a father’s lack of biological
connection to a child is associated with better outcomes,
although there are inherent difficulties with
studies of secrecy.103 The plurality opinion in
Michael H. invoked “nature itself ” to rule out the
option of dual paternity.104 Interestingly, anthropologists
have identified 16 societies in South America
marked by a belief in “partible paternity,” that is,
“the conviction that it is possible, even necessary, for
a child to have more than one biological father.”105
Although the idea of multiple biological paternity
may be at odds with science, short of some tricky
genetic engineering, multiple fatherhood may make
good social sense.
Mandatory involvement of a guardian ad litem
is one procedural means of protecting the interests
of children on a case-by-case basis, in the absence of
bright-line rules well supported by the results of
research concerning child welfare. The UPA 2000
requires involvement of a guardian in cases involving
presumed fathers.
A final issue not typically addressed in the bestinterest
analysis, but perhaps worthy of attention, is
the heightened potential for harm where there are
multiple children in the family. It is not unheard of
for a man to terminate, or attempt to terminate, ties
with a child while continuing visitation with siblings
confirmed to be his biological offspring.106 This
seems a recipe for disaster.
4. Modification of judgments. One of the most vexing
questions currently is what to do when a statute
or an appellate decision directs courts to allow the
reopening of paternity judgments. In Maryland, the
Court of Appeals, rebuked by the Legislature with a
law allowing modification of final paternity judgments,
gave the law retroactive application and later
ruled that the modification of a judgment cancels
any arrearages for child support.107 On the latter
point, a dissenting justice worried that this would
provide “a powerful new incentive for men to ignore
both the responsibility they voluntarily assumed and
their obligation to obey court orders.”108 The Maryland
court has not yet ruled on the issue of recoupment
of child support already paid; the Ohio law
passed in response to Caron clearly contemplates the
recovery of child support but offers no guidance on
the details.
5. Relief. A law review article published in 2000
examines this issue in depth, noting that courts have
in the past been unreceptive to lawsuits based on
harms connected to misrepresentation of paternity.109
At the same time, courts in California and elsewhere
have not foreclosed the possibility that a man might
recover the actual costs incurred in supporting
another man’s children on a theory of unjust enrichment.
In recent years, court decisions in a growing
number of states have recognized misrepresentations
of paternity as sufficient for claims of intentional
infliction of emotional distress.110
6. Mediation or counseling. With an increasing emphasis
on alternative dispute resolution (ADR) or the
offer of resources, the value of mediation or counseling
is worth considering. At least one state, Wisconsin,
has a law expressly authorizing judges hearing paternity
cases to order the parties to attend a program
providing training in parenting or co-parenting,
with the proviso that it be “educational rather than
therapeutic.”111 Few opinions in disestablishment
cases describe the use of ADR or related services. In
its unpublished opinion in Rebecca R. v. David R.,
the California Court of Appeal noted the involvement
of a family mediator in decision making about
genetic testing.112 In Stitham v. Henderson, a case
concerning the recognition of de facto parenthood
in the aftermath of genetic testing, the Supreme
Judicial Court of Maine expressed its hope that
“these parties, keeping the best interests of the child
uppermost in their minds, either on their own, or
with the assistance of an able case management officer
and/or mediator, will agree upon the best
arrangement for the child.”113 Since a request for an
increase in child support seems to be a frequent trigger
for private genetic testing and the subsequent
filing of a disestablishment case, judges should consider
what might be done at that point to head off an
ill-considered rush to testing.
7. Estoppel. The issues surrounding estoppel are discussed
at some length above and in a number of
recent law review articles. The ALI principles suggest
a more expansive application of the doctrine of parenthood
by estoppel and a widening of the notion of
detriment to include psychological harm to a child.
Where a man is bringing an action to end a legal
obligation of support on the basis of genetic testing,
special care is required to avoid creating perverse
incentives. For example, if the length or quality of
the father-child relationship is a factor in determining
whether to continue a support obligation, evaluation
should focus on the period before the action
was filed. Otherwise, there is an incentive for the
man to sever the relationship with the child immediately
upon receipt of evidence of nonpaternity.114
The power of judges to heal fractured relationships
is limited. In deciding a disestablishment case
in December 2001, the justices of the Wyoming
Supreme Court confronted the tragic dimension of
their work: “Courts simply are not always capable of
resolving the sorts of profound human dilemmas that
are brought to their doorsteps, at least not in a way
that will avoid all potential hardship to even innocent
parties. Here, though Child has two presumptive
fathers, he has none who wishes to fully embrace
that role and the responsibility that goes with it.”115
Gearing the law toward modest goals of achieving
greater consistency and minimizing harm, especially
to innocent children, may be the best policy. In his
special concurrence in the Wyoming case, Justice
Golden, joined by Chief Justice Lehman, stated that
while the “legal system certainly cannot bring love
into a family,” it should “at least provide a clear and
coherent process when called upon to define a
family.”116
Adoption of this sober approach does not, of
course, preclude a hope that generosity and affection
will triumph eventually. An Iowa man protested the
continuation of a duty of support to a son with
whom he had at one time enjoyed a warm, loving
relationship, labeling it a “charade.” The court hearing
the case rejected this characterization of the outcome
of the disestablishment proceeding, expressing
its hope that in the end the father’s “heart will follow
his money.”117
NOT E S
1. If hairs are pulled (rather than cut) and have intact roots,
it is theoretically possible to derive DNA for paternity
testing. At the same time, with this kind of sample, a failure
to obtain a usable result is more likely than with a
standard form of DNA collection. If results are obtained,
they are just as powerful and accurate as those from tests
using blood or buccal swabs. Interview with Dr. Laura
Gahn (Nov. 15, 2002).
2. Alessandra Stanley, So, Who’s Your Daddy? In DNA Tests,
TV Finds Elixir to Raise Ratings, N.Y. Times, Mar. 19,
2002, at C1. At least one case involving “live paternity
testing” performed on a TV talk show has made it into the
courts. See Barbara Ann W. v. David W., 701 N.Y.S.2d
845, 850 (N.Y. Fam. Ct. 1999) (testing that triggered
litigation was performed by self-described “paternity
expert” Alan Gelb on the Sally Jesse Raphael show).
3. See, e.g., Dorothy Nelkin & M. Susan Lindee, The
DNA Mystique: The Gene as a Cultural Icon (W.H.
Freeman 1995); Genes and Human Self-Knowledge:
Historical and Philosophical Reflections on Modern
Genetics (Robert F. Weir et al., eds., Univ. of Iowa
4. The evidence in this area is limited. Scientist Jared Diamond
describes a personal communication from a
respected scientist who conducted a research study of the
genetics of human blood groups in the 1940s. Samples
were collected at a “highly respectable” U.S. hospital from
1,000 newborn babies and their mothers and the men
identified as their fathers. Analysis revealed that in nearly
10 percent of cases, the men tested could not have been
biological fathers. Jared Diamond, The Third Chimpanzee:
The Evolution and Future of the Human
Animal 85–87 (HarperCollins 1992). This information is
secondhand and unverifiable because the finding was
never published; however, Diamond is himself a highly
respected scientist. Even assuming the finding’s validity,
however, World War II may have been a factor, since an
increase in infidelity might be anticipated when spouses
or significant others are absent for extended periods of
time. Physicians doing tissue typing for organ donation
have estimated that from 5 to 20 percent of donors are
genetically unrelated to the men identified as their fathers.
Barbara Katz Rothman, Recreating Motherhood:
Ideology and Technology in a Patriarchal Society
225 (W.W. Norton 1989). Laboratories performing paternity
testing consistently report exclusion rates of around
30 percent, but this number cannot be generalized to the
population at large for obvious reasons.
5. The question is not limited to the United States. The
author of a study of Canadian law concludes that “the
judiciary seems to be emphasizing, without providing any
detailed justification, a general belief in the social worth of
knowing one’s biological heritage.” Timothy A. Caulfield,
Canadian Family Law and the Genetic Revolution: A Survey
of Cases Involving Paternity Testing, 26 Queen’s L.J. 67,
89–90 (2000). He finds evidence of the same trend in
European law. Id. at 75–76.
6. See Miscovich v. Miscovich, 688 A.2d 726 (Pa. Super.
Ct. 1997), aff ’d 720 A.2d 764 (Pa. 1998), cert. denied,
526 U.S. 1113 (1999); Maggie Gallagher, Who’s Daddy?
It’s Not Just DNA, N.Y. Post, Aug. 14, 1999, at 15;
Richard Willing, DNA and Daddy: Explosion of Technology
Is Straining Family Ties, USA Today, July 29, 1999, at 1A;
William C. Smith, Daddy No More, A.B.A. J., July 1999,
at 30.
7. See In re Caron, 110 Ohio Misc. 2d 58, 744 N.E.2d
787 (Ohio Ct. Com. Pl. 2000); Case Points Out Judicial
System Flaws, Columbus Dispatch, Nov. 18, 2000, at
11A; Foe of Child Support Laws Is Jailed for Nonpayment,
St. Louis Post-Dispatch, Apr. 30, 2000, at A8; The
O’Reilly Factor: Should the State Force Victims of Fraud to
Pay Child Support? (Fox News Network broadcast, May
16, 2000).
8. See Wise v. Fryar, 49 S.W.3d 450 (Tex. Ct. App. 2001);
Tamar Lewin, In Genetic Testing for Paternity, Law Often
Lags Behind Science, N.Y. Times, Mar. 11, 2001, at A1.
9. Cal. Fam. Code § 7611(d) (West 1994 & Supp.
2003).
10. See, e.g., Brian C. v. Ginger K., 92 Cal. Rptr. 2d 294,
298–99 (Cal. Ct. App. 2000).
11. Cal. Fam. Code § 7540.
12. Id. § 7541. If blood tests are performed in accordance
with the chapter concerning blood tests to determine
paternity and the experts conclude that the husband is not
the father, then this section provides that “the question of
paternity of the husband shall be resolved accordingly.”
However, this section restricts motions for blood tests by
time and party. Motions for testing may be made only
within two years of the child’s birth and only by (i) the
husband; (ii) a presumed father (as defined in sections
7611 and 7612), only for purposes of establishing paternity;
(iii) the child’s guardian ad litem; or (iv) the mother,
if the child’s biological father has filed an affidavit
acknowledging paternity. Id.
13. Freeman v. Freeman, 53 Cal. Rptr. 2d 439, 444 (Cal.
Ct. App. 1996).
14. Cal. Fam. Code § 7611.
15. For example, in Maryland, blood tests for the purpose
of establishing paternity may be sought under a provision
of the Estates and Trusts Code as well as the Family Law
Code. Turner v. Whisted, 607 A.2d 935 (Md. 1992).
16. See Chris W. Altenbernd, Quasi-Marital Children: The
Common Law’s Failure in Privette and Daniel Calls for
Statutory Reform, 26 Fla. St. U. L. Rev. 219, 236 (1999).
17. Ex parte W.J., 622 So. 2d 358 (Ala. 1993).
18. Act of Apr. 26, 1994, 1994 Ala. Acts 633 (codified at
Ala. Code § 26-17A-1 (2003)); see Ex parte Jenkins, 723
So. 2d 649 (Ala. 1998) (attributing passage of § 26-17A-
1 to denial of relief in Ex parte W.J.).
19. Tandra S. v. Tyrone W., 648 A.2d 439 (Md. 1994).
20. Langston v. Riffe, 754 A.2d 389, 393 (Md. 2000)
(noting that 1995 Maryland Laws 248 was passed specifically
to overturn the effect of Tandra S.).
21. Wise v. Fryar, 49 S.W.3d 450, 455 (Tex. Ct. App.
2001), cert. denied, 534 U.S. 1079 (2002). A series of
recent state supreme court rulings demonstrate the difficulty
of disestablishing paternity where a divorce decree or
judgment recites that a child is “of the marriage” or contains
similar language. See D.F. v. Dept. of Revenue ex rel.
L.F., 823 So. 2d 97 (Fla. 2002); Doe v. Doe, 52 P.3d 255
(Haw. 2002); Betty L.W. v. William E.W., 569 S.E.2d 77
(W. Va. 2002).
22. Clevenger v. Clevenger, 11 Cal. Rptr. 707 (Cal. Ct.
App. 1961).
23. Id. at 714.
24. Id.
25. Freeman v. Freeman, 53 Cal. Rptr. 2d 439, 447 (Cal.
Ct. App. 1996).
26. See Theresa Glennon, Somebody’s Child: Evaluating the
Erosion of the Marital Presumption of Paternity, 102 W. Va.
L. Rev. 547, 578–82 (2000).
27. Theresa Glennon, Expendable Children: Defining
Belonging in a Broken World, 8 Duke J. Gender L. &
Pol’y 269, 280 (2001); Glennon, Somebody’s Child, supra
note 26, at 585.
28. Michael H. v. Gerald D., 491 U.S. 110 (1989).
29. Dawn D. v. Superior Court, 72 Cal. Rptr. 2d 871
(1998), cert. denied, 525 U.S. 1055 (1998).
30. Other states have recognized such an interest. For
example, in several cases, the Iowa Supreme Court has
ruled that putative fathers have a constitutionally protected
liberty interest in relationships with their biological
children even where another man is the presumed father
by marriage. At the same time, the court readily finds a
waiver where the putative father delays in pursuing his
rights. See, e.g., Huisman v. Miedema, 644 N.W.2d 321
(Iowa 2002); see also In re J.W.T., 872 S.W.2d 189, 197
(Tex. 1994).
31. Brian C. v. Ginger K., 92 Cal. Rptr. 2d 294 (Cal. Ct.
App. 2000).
32. Susan H. v. Jack S., 37 Cal. Rptr. 2d 120 (Cal. Ct.
App. 1994).
33. Merkel v. Doe, 63 Ohio Misc. 2d 490 (Ohio Ct.
Com. Pl. 1993).
34. In re J.W.T., 872 S.W.2d at 197.
35. Gammon v. Cobb, 335 So. 2d 261, 265 (Fla. 1976).
36. See supra note 18 and accompanying text.
NOT E S
37. S.M.V. v. D.W.M., 723 So. 2d 1271 (Ala. Civ. App.
1998).
38. Thomas H. Murray, The Worth of a Child 50
(Univ. of Cal. Press 1996).
39. Joseph Goldstein et al., Beyond the Best Interests
of the Child 17 (Free Press 1979).
40. Ex parte Jenkins, 723 So. 2d 649, 677 (Ala. 1998)
(Cook, J., concurring in part and dissenting in part).
41. Michael H. v. Gerald D., 491 U.S. 110, 148 (1989)
(Brennan, J., dissenting). Others assert that “father” is a
legal construction, not a biological fact. See, e.g., In re
J.W.T., 872 S.W.2d 189, 202 (Tex. 1994) (Cornyn, J.,
dissenting). Again, in Smith v. Organization of Foster Families
for Equality and Reform, 431 U.S. 816 (1977), Justice
Brennan, this time writing for the majority, stressed the
centrality of biology to family and suggested that solicitude
for a constitutionally protected liberty interest
founded on blood relationship with a child precludes a
similar concern for competing interests founded on social
relationship.
42. In re Paternity of Cheryl, 746 N.E.2d 488 (Mass.
2001).
43. Id. at 494 n.15 (citations omitted).
44. Smith v. Cole, 553 So. 2d 847, 851 (La. 1989).
45. Geen v. Geen, 666 So. 2d 1192 (La. Ct. App. 1995).
46. Id. at 1197.
47. See Michael H. v. Gerald D., 491 U.S. 110 (1989);
Merkel v. Doe, 63 Ohio Misc. 2d 490 (Ohio Ct. Com. Pl.
1993); see also supra note 33 and accompanying text.
48. Doe v. Doe, 52 P.3d 255 (Haw. 2002).
49. N.A.H. v. S.L.S., 9 P.3d 354, 365 (Colo. 2000).
50. Freeman v. Freeman, 53 Cal. Rptr. 2d 439, 446 (Cal.
Ct. App. 1996).
51. See, e.g., Comino v. Kelley, 30 Cal. Rptr. 2d 728 (Cal.
Ct. App. 1994).
52. See Freeman, 53 Cal. Rptr. 2d at 448 (emphasis
added).
53. See, e.g., In re Kiana A., 113 Cal. Rptr. 2d 669 (Cal.
Ct. App. 2001).
54. In re Raphael P., 118 Cal. Rptr. 2d 610 (Cal. Ct. App.
2002).
55. In re Raphael P., 117 Cal. Rptr. 2d 795 (Cal. Ct. App.
2002), rev’d on reh’g by In re Raphael P., 118 Cal. Rptr. 2d
610.
56. In re Nicholas H., 46 P.3d 932 (Cal. 2002).
57. Cal. Fam. Code § 7612(a) (West 1994 & Supp.
2003).
58. See Web site for U.S. Citizens Against Paternity
Fraud, at http://www.paternityfraud.com (visited Oct.
21, 2003); see also Christopher Quinn, As DNA Tests Rule
Out Paternity, Men Sue to Stop Support Payments, Atlanta
J. & Const.,May 16, 2001, at 1A (“DNA tests clear nearly
one of every three men who contest paternity when
named as fathers by women applying for state assistance”);
The Early Show (CBS television broadcast, Apr. 18, 2000)
(quoting Carnell Smith, director of U.S. Citizens Against
Paternity Fraud: “At least somebody should get a chance
for their freedom here. The innocent man should always
be allowed to be set free, based on the evidence”).
59. “It’s amazing to me that the same evidence that can be
used to convict an individual is not readily used to exonerate
an individual. You can’t have it both ways. If this is
the high-tech science we both know it is, the court has to
deal with the results, despite the extenuating circumstances.”
Steve Duin, This DNA Test Is a Test of His
Patience, The Oregonian, June 6, 2000, at B01 (quoting
Brad Popovich, director of the DNA diagnostic lab at
Oregon Health Sciences University).
60. See U.S. Citizens Against Paternity Fraud, at
http://www.paternityfraud.com.
61. See, e.g., Monica Brady, All Things Considered: DNA
Testing Is Causing State Courts to Relook at Laws Regarding
Paternity (National Public Radio broadcast, Apr. 9, 2001)
(interview with acknowledged father challenging child
support obligations in Cheryl case, expressing continuing
affection for the child).
62. On suits against mothers for misrepresentation of
paternity, see Linda L. Berger, Lies Between Mommy and
Daddy: The Case for Recognizing Spousal Emotional Distress
Claims Based on Domestic Deceit That Interferes With
Parent-Child Relationships, 33 Loy. L.A. L. Rev. 449,
501–08 (2000).
63. See, e.g., In re Paternity of Cheryl, 746 N.E.2d 488
(Mass. 2001); K.B. v. D.B., 639 N.E.2d 725 (Mass. App.
Ct. 1994); Monmouth County Div. of Soc. Servs. v. R.K.,
757 A.2d 319 (N.J. Super. Ct. Ch. Div. 2000).]
64. Caron was jailed for contempt of court in connection
with litigation over the continuation of a child support
obligation. See In re Caron, 744 N.E.2d 787 (Ohio Ct.
Com. Pl. 2000); Case Points Out Judicial System Flaws,
supra note 7, at 11A; Foe of Child Support Laws Is Jailed
for Nonpayment, supra note 7, at A8; The O’Reilly Factor,
supra note 7.
65. Act of July 27, 2000, 2000 Ohio Laws 238 (H.B.
242). There are exceptions for adoption and artificial
insemination by donor.
66. Odum v. Smith, No. 98-12744-9 (Ga. Super. Ct. May
14, 2001); see also http://www.paternityfraud.com.
67. 2002 Ga. Laws 596, § 1 (codified at Ga. Code Ann.
§ 19-7-54 (2003)).
68. A.B. 2240, 2001–2002 Sess. (Cal. 2002). The legislative
declarations from Assembly Bill 2240 are repeated in
Senate Bill 1030, introduced on Feb. 21, 2003. Senate
Bill 1030 concerns motions to set aside default judgments
of paternity.
69. H.B. 735, 2001–2002 Sess. (Vt. 2002). See also
S.B. 1710, 2003–2004 Sess. (Fla. 2003); H.B. 2267,
2003–2004 Sess. (Ill. 2003); H.B. 5381, 2003–2004 Sess.
(R.I. 2003).
70. Unif. Parentage Act § 204 (2000), as last amended
or revised in 2002.
71. Id. § 607. Although the text of section 607(a) refers to
a paternity proceeding brought by a presumed father, the
mother, or “another individual,” the comment to that section
describes the potential challengers as the mother, the
presumed father, and “a third party male.” There is one
clear exception to the time limit: a proceeding to disprove
a father-child relationship, if a court determines that the
mother and presumed father had no intimate contact during
the probable time of conception and the presumed
father never openly treated the child as his own. It appears
that this exception would not survive a divorce, since the
UPA 2000 provides that a final order expressly identifying
a child as a “child of the marriage” or providing for support
by the husband is an adjudication of parentage and
can be used as a defense by a third party in a subsequent
proceeding. See id. § 637. The comment states the rationale
for the exception: “It is inappropriate to assume a presumption
known by all those concerned to be untrue.” If
this is so, what about a case in which, more than two years
after the birth of a child, the results of genetic testing
exclude a man presumed to be the child’s father solely on
the basis of marriage plus intimate contact? Confusion
seems to persist about whether the marital presumption is
a rule of evidence or a rule of substantive law.
72. See id. §§ 308(a), 609.
73. See id. § 637.
74. See id. § 608.
75. See id. § 621(c).
76. Unif. Parentage Act § 621 cmt. (Discussion Draft
2000). This language does not appear in the final document.
77. One laboratory explicitly recognizes the possibility of a
two-step process in its advertising of home identity testing:
“Fairfax Identity Laboratories would like to be clear: if
your results do have to be presented in a legal proceeding,
then HIT™ may not be suitable for you. It can, however,
be used to give a preliminary answer prior to having the
sort of test performed that requires the proper chain of custody.”
Fairfax Identity Laboratories, Home Identity Testing
(HIT™), at http://www.fairfaxidlab.com/idlab/hitcopy.html
(visited Oct. 21, 2003). Where testing is performed at a
laboratory, greater control is possible. For example, in its
“Answers to the Most Common Questions About Parentage
Testing,” CBR Laboratories stated that as a matter of
policy it required an order for testing from a lawyer, doctor,
nurse practitioner, or representative of the court or the
Department of Social Services or Revenue, and that the
person seeking testing of a child, if not accompanied by
the mother, was required to show proof of custodial
rights. CBR Laboratories, Paternity Testing FAQs, at
http://www.cbrlabs-inc.com/paternity-testing-faqs.html
(visited Nov. 11, 2002).
Largely in response to mail-order or home testing, the
United Kingdom established an ad hoc Group on Genetic
Paternity Testing Services to develop a code of conduct
for laboratories performing testing. See Group on
Genetic Paternity Testing Servs., Code of Prac. &
Guidance (2001). The code is not itself law, but through
other law it is binding on courts in ordering testing, and
government agencies and public bodies are also expected
to comply. See Rosemary Bennett, Paternity Test Companies
to Get Code of Conduct, Fin. Times (London), Mar. 24,
2001, at 2. In the United States, the standards of accrediting
agencies address such matters as informed consent and
confidentiality, but accreditation is voluntary. See, e.g.,
Am. Ass’n of Blood Banks, Standards for Parentage
Testing Laboratories (Am. Ass’n of Blood Banks 5th
ed. 2001).
78. Del. Code Ann., tit. 13, §§ 8-101 (2003); Tex. Fam.
Code Ann. § 160 (Vernon 2003); Wash. Rev. Code
Ann. § 26.26 (West 2003); Wyo. Stat. Ann. § 14-2-121
(Michie 2003). Only the Wyoming version incorporates
the 2002 revisions, which equalized the treatment of marital
and nonmarital children by creating a presumption of
paternity outside of marriage under certain circumstances,
and by extending judicial discretion to limit genetic testing
to children with acknowledged as well as presumed
fathers. (A bill signed by Governor Perry on June 20,
2003, amends the Texas law to reflect the 2002 revisions.)
Of note, Texas substituted a four-year time limit for the
UPA 2000’s two-year limit. Tex. Fam. Code Ann. §
160.607. Wyoming substituted a five-year time limit for
the UPA 2000’s two-year limit for proceedings involving
children with presumed fathers, while retaining the two-year
limit for proceedings involving children with acknowledged
or adjudicated fathers. Wyo. Stat. § 14-2-709. In
the case of Washington, the new law must be interpreted
in light of precedents making the best interest of the child
the paramount consideration and applying equitable doctrines
rather freely to advance the interests of children.
79. Glennon, Somebody’s Child, supra note 26, at 569–70.
80. Am. Law Inst. (ALI), Principles of the Law of
Family Dissolution: Analysis and Recommendations
(Matthew Bender 2002) [hereinafter ALI Principles].
81. ALI Principles § 2.03. The comments to the definitional
section include a review of the case law. The drafters
conclude that, at present, many courts “decline to apply
any equitable theory, even under very compelling circumstances.”
ALI Principles § 2.03 Reporter’s Notes cmt. b.
82. ALI Principles § 3.03. Concerning the interaction
between equitable theories and the marital presumption,
see § 3.03 cmt. d; § 3.03 Reporter’s Notes cmt. d.
83. Glennon, Expendable Children, supra note 27, at 275.
84. Id. at 277.
85. Joe Follick, Court to Rule on DNA Impact on Child
Support, Tampa Trib., Aug. 30, 2000, at 6 (quoting Justice
Major Harding).
86. In re Paternity of Cheryl, 746 N.E.2d 488, 495 (Mass.
2001). This approach may also reflect concern that situational
factors limit the practical relevance of existing due
process protections. For example, some men may decline
genetic testing out of embarrassment. See Office of the
Inspector General, U.S. Dept. of Health & Human
Servs., Paternity Establishment: State Use of
Genetic Testing 3 (U.S. Dept. of Health & Human
Servs. 1999).
87. Glennon, Expendable Children, supra note 27, at 281;
see also Glennon, Somebody’s Child, supra note 26, at 605.
88. Cauthen v. Yates, 716 So. 2d 1256 (Ala. Civ. App.
1998); see also County of El Dorado v. Misura, 38 Cal.
Rptr. 2d 908 (Cal. Ct. App. 1995); Christopher L.
Blakesley, Scientific Testing and Proof of Paternity: Some
Controversy and Key Issues for Family Law Counsel, 57 La.
L. Rev. 379 (1997).
89. Manning v. Manning, 764 So. 2d 311 (La. Ct. App.
2000).
90. Unif. Parentage Act § 505 & cmt. (2000).
91. See, e.g., Ex parte Jenkins, 723 So. 2d 649 (Ala. 1998).
92. In re Kates, 761 N.E.2d 153 (Ill. 2001).
93. In re Paternity of Cheryl, 746 N.E.2d 488, 500 n.23
(Mass. 2001) (citations omitted).
94. Quest Genetics, at http://www.dnatestingusa.com
/GrandparentDNAtest.html (visited Oct. 22, 2003).
95. “In addition to concerns for reliability [in the case of
unauthorized DNA testing], there are legitimate public
policy concerns over privacy interests such as the dangers
of unauthorized disclosure of genetic information and
possible genetic discrimination by entities such as insurance
companies and employers.” In re T.S.S., 61 S.W.3d
481, 487 n.5 (Tex. Ct. App. 2001).
96. Concerning the due process and equal protection
issues that may arise where a statute grants grandparents
rights that may conflict with parents’ interests, see Karl H.
Widell, Case Note, Court of Appeals of Arizona Upholds
Grandparent Visitation Under Arizona Statute, 43 Ariz. L.
Rev. 495 (2001).
97. H.J. Sants, Genealogical Bewilderment in Children
With Substitute Parents, 37 Brit. J. Med. Psychol. 133
(1964).
98. Cal. Fam. Code § 7570(a) (West 1994 & Supp.
2003).
99. Courts often couple medical interests and “truth of
origins” interests. See Ex parte Snow, 508 So. 2d 266 (Ala.
1987) (child has interest in knowledge of heritage, accurate
medical history); Hall v. Lalli, 977 P.2d 776, 781
(Ariz. 1999) (child has interest in family bonds and learning
cultural heritage); Russell v. Russell, 682 N.E.2d 513
(Ind. 1997) (citing medical and psychological reasons for
identifying biological parent); D.B.S. v. M.S., 903 P.2d
1345 (Kan. 1995) (in best-interest analysis courts “can
also consider the child’s basic interest in simply knowing
his or her biological father”); Raymond v. O’Rourke,
1993 Minn. App. LEXIS 153 (Minn. Ct. App. 1993)
(unpublished opinion) (child has interest in having “actual
biological father” determined); Cihlar v. Crawford, 39
S.W.3d 172 (Tenn. Ct. App. 2000) (children have interest
in ascertaining the identity of their biological parents
for medical or other health reasons); State ex rel. Roy
Allen S. v. Robert B. Stone, 474 S.E.2d 554 (W. Va.
1996) (examples of factors to be considered in both the
standing and paternity determinations include “whether
ascertaining genetic information might be important for
medical treatment or genealogical history”); and R.W.R.
v. E.K.B. (State ex rel. N.D.B.), 2001 WY 118, 35 P.3d
1224 (2001) (citing Hall v. Lalli with approval). In In re
Parentage of Calcaterra, 56 P.3d 1003 (Wash. Ct. App.
2002), the court looked approvingly on the quest of a 34-
year-old woman for testing of the man she believed to be
her natural father, citing her desire for a family medical
history.
100. Glennon, Expendable Children, supra note 27, at
275.
101. Id. at 282.
102. The dissent in Dawn D. notes this “potential anomaly.”
See Dawn D. v. Superior Court, 72 Cal. Rptr. 2d
871, 890 (Cal. 1998) (Chin, J., dissenting).
103. For an overview of these and related studies bearing
on genetic relationship and child and family welfare, see
Susan Golombok, Parenting: What Really Counts?
(Routledge 2000); see also Jennifer E. Lansford et al., Does
Family Structure Matter? A Comparison of Adoptive, Two-
Parent Biological, Single-Mother, Stepfather, and Stepmother
Households, 63 J. Marriage & Fam. 840 (2001); A.J.
Turner & A. Coyle, What Does It Mean to Be a Donor Offspring?
The Identity Experiences of Adults Conceived by
Donor Insemination and the Implications for Counseling
and Therapy, 15 Hum. Reprod. 2041 (2000); Susan
Golombok et al., Social Versus Biological Parenting: Family
Functioning and the Socio-Emotional Development of Children
Conceived by Egg or Sperm Donation, 40 J. Child
Psychol. & Psychiatry 519 (1999).
104. Michael H. v. Gerald D., 491 U.S. 110, at 118
(1989).
105. Paternity Test, Economist, Jan. 30, 1999, at 74. Offspring
with two to three males in the father role seem to
fare the best. Some judges have sought to normalize such
arrangements. For example, a Tennessee court wrote: “In
our resolution of this appeal, we have not overlooked the
Trial Court’s concern that the child would have two legal
fathers should the case proceed and DNA prove that Mr.
Gibson is in fact the father. While we concede this is a
rather anomalous situation, we note where an adoption
occurs, the adoptive father is father by virtue of the adoption,
while the biological father is in fact also the father.”
Chance v. Gibson, 2002 Tenn. App. LEXIS 598 (Tenn. Ct.
App. 2002). Others observe that such arrangements may
be beneficial. E.g., Martin v. Harrell, 2002 Conn. Super.
LEXIS 1851 (Conn. Super. Ct. 2002) (“Rather than
being confused or damaged by the circumstance of having
two fathers, [the child] seems to accept this and even
approximates the benefits of double the paternal love”).
106. See Rubright v. Arnold, 973 P.2d 580 (Alaska 1999).
107. Walter v. Gunter, 788 A.2d 609 (Md. 2002). The
Maryland Legislature continued to consider limits to
paternity testing orders in 2002. Maryland House Bill 702
would have imposed a three-year limit on orders for testing
to support challenges to declarations of paternity, and
House Bill 478 would have permitted only prospective
relief from support orders in the event of disestablishment
of paternity. The House Judiciary Committee delivered
unfavorable reports on both bills, which then died.
108. Id. at 625 (Wilner, J., dissenting). For a discussion of
other concerns, e.g., federal requirements, see Paula
Roberts, Truth and Consequences Part III: Who
Pays When Paternity Is Disestablished? (Ctr. for Law
& Soc. Pol’y, Apr. 2003), at http://www.clasp.org (visited
Oct. 21, 2003).
109. Linda L. Berger, Lies Between Mommy and Daddy, 33
Loy. L.A. L. Rev. 449, 490–01 (2000).
110. Id. at 501–02.
111. Wis. Stat. Ann. § 767.115(b) (West 2003).
112. Rebecca R. v. David R., 62 Cal. Rptr. 2d 730 (Cal.
Ct. App. 1997) (opinion withdrawn from publication).
113. Stitham v. Henderson, 2001 ME 52, 768 A.2d 598,
603–04 (2001).
114. Apparently, some attorneys are counseling clients to
avoid all contact with a child in order to enhance their
chances for success in court. Gerald Miscovich told a
reporter that he wanted to play “some part” in the boy’s
life but had been advised that to do so would undercut his
case. See Willing, supra note 6, at 1A.
115. R.W.R. v. E.K.B. (State ex rel. N.D.B.), 2001 WY
118, 35 P.3d 1224, 1228 (2001). This is a prelude to
agreement, with the mother, one of the presumed fathers,
the guardian ad litem, and the district court, with the
proposition that “‘the truth’ was the best result that could
be salvaged.”
116. Id. at 1232.
117. Dye v. Geiger, 554 N.W.2d 538, 541 (Iowa 1996).

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