Paternity Fraud: When Men Are Forced To Support Their Ex-Wives' "Illegitimate" Children

By SHERRY F. COLB

Tuesday, Apr. 18, 2006

The National Law Journal recently reported that "paternity fraud is rampant in the United States." Paternity fraud involves a woman's claiming, dishonestly, that a particular man has fathered children with her. By making such fraudulent claims, a woman is able to collect child support payments from a man who had nothing to do with siring her children. Indeed, even after a man has successfully disproved paternity, using DNA tests, courts have sometimes required the non-father to continue to pay child support.

Not surprisingly, such results have generated outrage among fathers' rights groups and have led to lawsuits as well as calls for legislative reform. Though the practice of paternity fraud is troubling, however, we should examine the context of such claims to determine to what extent, and against whom, an injustice is being perpetrated.

The Presumption of Paternity

Legally actionable paternity errors most commonly occur when a man and a woman are married to each other at the time of a child's conception and birth. Such errors have legal consequences because of something called the "presumption of paternity," which applies in most states.

The presumption holds that when a married woman gives birth to a child, her husband is the father of that child. For various legal purposes, it can be important to establish the paternity of a child. The presumption permits the question to be answered simply and without investigation.

In most cases, the presumption accurately reflects reality: When two people are married, the babies born to the wife generally are the husband's biological children. As is often the case with legal presumptions, then, this one corresponds to the likely truth.

Another example of such a reality-based presumption involves mailed letters: In the absence of evidence to the contrary, a litigant who proves she has mailed a letter with proper postage and the correct address listed has conclusively established that the addressee received the letter in due course. No direct proof of the letter's receipt is necessary. If the addressee introduces evidence that the letter never arrived, however, he can successfully rebut the presumption and disprove receipt of the letter.

In the case of the paternity presumption, by contrast, many states do not permit a man to disprove his presumed paternity, even if DNA evidence would positively establish that a child is not genetically his. Unlike the mailed letter presumption, the "presumption of paternity" therefore acts more as a legal command requiring married men to be fathers to their wives' children (except in exceptional circumstances) than as a device for arriving at the truth. Another way to put this is to describe the rule in question as an irrebuttable presumption.

Challenges to the Presumption of Paternity

Though fathers' rights activists have recently been concerned with disproving inaccurate allegations of paternity, a disgruntled critic of the presumption of paternity brought a very different sort of claim to the United States Supreme Court in the late 1980's.

In Michael H. v. Gerald D., the petitioner Michael H., had had an adulterous affair with Gerald D.'s wife, Carole D., which resulted in the birth of a child, Victoria D. Michael H. wanted visitation with his biological daughter and claimed that he had a fundamental constitutional right, as a father, to participate in Victoria's upbringing. But Carole D. did not want to include Michael H. in her daughter's life and responded to his claims by citing the California presumption of paternity. At that time, the presumption did not allow for rebuttal by someone outside the marriage.

Michael H. contended that the California rule, which denied biological fathers the right to act as fathers to their children, was unconstitutional.

The Supreme Court disagreed with Michael H., and in an opinion by Justice Scalia, held that no constitutional rights attach to a man who conceives a child in an affair with a married woman. Though the presumption of paternity may be counterfactual in an individual case, the State need not concern itself with the rights and interests of adulterous biological fathers. The California presumption was accordingly valid.

The Court might, of course, take a very different view when the faithful husband who supported his wife and putative child during marriage wishes, upon learning of his wife's deception, to stop supporting another man's offspring. Such a husband has done nothing wrong, after all, to give rise to the situation at hand. Indeed, it might appear to add insult to injury to force him literally to pay, in the form of child support, for his wife's having violated her marriage vows.

The "Fraudulent" Children

There is only one glitch in the story of the cuckolded man's outrage. It is the child. When a woman gives birth to a child and pretends that her husband is the biological father, a bond ordinarily forms between the man and the child, and the child comes to think of that man as his father. Most young children, in fact, have no idea what it means to say that someone is or is not their "biological father."

If a man lives in the house with mom and a child and is called "Daddy," he is - for all practical purposes - the child's father. After forming such a bond, the child grows attached and accordingly - perhaps - entitled to the father/child relationship on which he has come to rely. Were the mother to try to deny the man access to his "legal" child, in fact, many might view the acting father as entitled to override her wishes. From the child's perspective, it is fundamentally an act of betrayal for his "dad" to go into a court of law to prove that the relationship between them has been fraudulent. The state may accordingly have a compelling interest in protecting the rights of a child to his presumed father, an interest that justifies overriding the ex-husband's rights.

One response, of course, is that the actual biological fathers - the Michael H.'s of the world - could play the role of father when the cuckolds - the Gerald D.s, by analogy - wish to opt out. This response is ironic, perhaps, because a fathers' rights activist might well believe that men who adulterously sire unwanted children should have the right to a "financial abortion," as discussed in an earlier column, thus leaving the child effectively with no father at all. But even if that is so, the victim of a woman's infidelity arguably should not have to pay the price.

And hasn't the presumed father been injured as well? Hasn't he invested emotional energy and financial support where it did not belong? And shouldn't he therefore have his day in court? Unlike the adulterous biological father, the man whose wife bears another man's baby has not himself behaved dishonorably. He may therefore be well situated to claim a constitutional right to choose not to become a father to his wife's children.

Is the Presumption of Paternity An Anachronism?

Challengers to the irrebuttable presumption of paternity argue, further, that it reflects a bygone age, a time when women were (or at least, were believed to be) much more likely than they are now to be faithful to their husbands and when we could not definitively determine a child's paternity. Because we now live in an era in which men and women alike engage in adulterous affairs, and DNA can tell us with virtual certainty whether a man is or is not a child's father, it might appear senseless to cling to a legal presumption that serves to frustrate both the truth and the rights of ex-husbands.

Consider again, however, the perspective of the child. The best interests of that person might entail the refusal of a court to allow her "Daddy" to prove that he isn't "really" her father at all. Though the mother has injured her husband, first by cheating on him and then by lying to him about her baby's origins, the child - like the father - has innocently lived a life in reliance on that deception.

Unlike the father, moreover, the child never asked to become part of her mother's (or her father's) family or to have to place her trust in either one of them. Seen in this light, the irrebuttable presumption of paternity may protect the right of every child born to a marriage to have a mother and a father as long as both members of the couple live. On this view, the presumption is not a device for assessing a biological reality but, instead, a vehicle for creating a social one.

By getting married under such a legal regime, a man should perhaps assume the risk of playing the role of father to any children to whom his wife gives birth. When an act of fraud produces a human being, in other words, the law ought to consider the interests of that human being, even if no one meant for him to be born in the first place. The presumption of paternity - by protecting a legal fiction - makes it fruitless for a man to seek to "disprove" his paternal connection to a child. And this might be a good thing if it inclines fewer men to initiate proceedings that would deprive children of the only fathers they have ever known.


Sherry F. Colb, a FindLaw columnist, is Professor and Frederick B. Lacey Scholar at Rutgers Law School in Newark. Her other columns may be found in the archive of her work on this site.

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