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The Relationship of Biology to Legal Fatherhood:
Two New Cases Show Courts Struggling to Find a Coherent Approach, As Non-Biological Fathers Fight for Their Rights to Children


Tuesday, Oct. 17, 2006

Science has made it easy to determine genetic fatherhood with a high degree of accuracy. But should those results always dictate which man has legal rights and obligations with respect to a child?

The importance of biology to so-called "legal" fatherhood has clearly evolved as genetic testing has become more accurate and accessible. Yet, the law has so far stopped short of equating biology and legal fatherhood for all purposes.

It is still the case that other factors - ranging from a man's behavior towards a child, to his legal relationship with the child's mother, to the timing and forcefulness of his attempts to prove paternity, and her efforts to conceal it -- can all be used to determine whether a man with no genetic tie to a child might nonetheless be the child's "legal" father.

Courts continue to struggle with evaluating biological and social claims to fatherhood - as is illustrated by two recent decisions, one from Tennessee and one from Kentucky. The decisions are especially instructive when considered in combination, for they reach opposite conclusions about the legal status of a man who is or was married to a woman but not the biological father of a child born during their marriage.

In addition, these two cases show men acting contrary to stereotype: Rather than eschewing the status of father to "another man's" biological child, these men are fighting for the right to be fathers to the non-biological children they have raised. These fathers are welcome exceptions to the stereotypes of men shirking the obligations of paternity, or allowing sexual jealousy to destroy their relationships with "another man's" child.

Marital Children: When the Husband is Not the Father

Perhaps the most challenging set of cases on biology-and-fatherhood issues in recent years involve a woman who, while married, conceives a child with a man other than her husband. This isn't as rare as one might think; recent studies suggest that at least five percent of all marital children are conceived under these circumstances.

Questions about paternity often arise during or after a couple's divorce, in connection with a demand for child support, a dispute about custody or visitation, or a third party's attempt to claim rights of fatherhood. The media-grabbing cases many times involve married/recently divorced men seeking to disestablish paternity once they learn they lack a genetic tie to children born of the marriage.

Yet sometimes, conversely, husbands try to claim the rights and assume the obligations of fatherhood, even while knowing full well that the child has another biological father. As noted above, that is the situation in the two cases I'll focus on here.

The Law's Traditional Approach, and a Modern Trend

Family law has tended to avoid interfering with a marriage. Moreover, the longstanding view was that unwed fathers lack any rights with respect to the children they sire. As a result, courts and legislatures traditionally awarded fatherhood rights to husbands regardless of whether or not they were genetically tied to the wives' children. The biological fathers, in turn, were out of luck. (States do not generally permit children to have three legal parents, so a fight for fatherhood involving two men is always a zero-sum game.)

This preference for the husband-as-legal-father was effectuated through a statutory presumption that husbands fathered their wives' children as long as they were born during the marriage, or within 300 days after its dissolution. The preference in many states was conclusive, which means that it was legally irrebuttable, regardless of the underlying biological facts.

Over time, however, the legal rights of unwed fathers have grown (thanks in large part to a series of Supreme Court cases in the 1970s and 1980s invalidating state laws that ignored fathers' rights in a variety of contexts). In addition, the unwillingness of judges to interfere with an ongoing marriage has lessened somewhat. Together, these forces combine, today, to create an opposite trend - one that leaves greater room for biology, and defers less to the non-father-husband.

The modern trend is perhaps captured in the modern version of the Uniform Parentage Act (UPA), adopted in 2000. The UPA uses only a rebuttable presumption that a married man is the father of his wife's children. Still, while the presumption can be rebutted - as it could not under the traditional approach - there remain certain limits on how and when the rebuttal can occur.

For example, a husband's paternity can be disestablished with the voluntary consent of all three parties (the mother, her husband, and the biological father) -- or, if consent is not possible, then by a suit to disestablish paternity brought within two years of a child's birth.

Regardless of the method of disestablishment, the UPA provides that DNA is the only evidence admissible on the question or paternity and, to be admissible, it must be obtained pursuant to court order or with the consent of all parties.

Hinshaw v. Hinshaw: A Holding that the Non-Biological Father is the Legal Father

An appellate court in Kentucky ruled that Ren Hinshaw was properly given primary physical custody of his wife Jacqueline's child, even though DNA tests revealed a 0.00% chance that he was the biological father.

The basis for the court's decision was that since the child's birth Ren had behaved in every way like the father he believed he was - from cutting the child's umbilical cord in the delivery room to shouldering the many aspects of parenting that follow from that moment.

Indeed, Ren served as the child's primary caregiver for much of the time because his work schedule was more flexible than Jacqueline's. Perhaps as a result of this, the father-child relationship was strong enough that the clinical psychologist appointed by the court in the custody case concluded that it would be devastating to the child if Ren disappeared from his life.

Ren behaved like a father because he thought he was the father. Only after filing for divorce did Jacqueline file an amended petition alleging that he was not; she wanted to cut off Ren's claim to the child, and assume sole custody. She sought and obtained court-ordered DNA testing to prove her allegation about the child's biological parentage.

Kentucky law presumes a woman's husband to be the father of her children, but permits the presumption to be rebutted. The statute further provides that the question of paternity will be "resolved accordingly" if genetic tests disclose that an alleged father is not the biological father.

The DNA evidence, which excluded Ren as a possible father, would seem a sufficient rebuttal under that standard. However, the court refused to consider the DNA evidence. Jacqueline, the court held, was "equitably estopped" from disproving her husband's paternity, since she had continually represented to him (and others) that he was the child's father and had encouraged Ren to develop a strong bond with the child. ("Equitable estoppel" is a principle that prevents a party to litigation from asserting a fact to be true, and then later asserting it to be false after other parties relied on the initial assertion of truth.) Had Ren been the one seeking to disestablish paternity, the request would presumably have been granted. But Jacqueline was precluded from doing so by her own claim that he was the father.

Putting the DNA evidence aside, the court found Ren to be the child's "legal" father, and thus to be on equal footing with his legal mother, Jacqueline. The court then awarded the couple joint custody, but awarded primary residential custody to Ren: That is, the child will live primarily with Ren, though the parents will share legal custody.

This aspect of the proceeding had nothing to do with paternity, the court reminded, but was simply "about the custody rights between a husband and wife as they relate to a child born and raised within the confines of their marriage."

In re T.K.Y.: A Holding that the Non-Biological Father is Not the Legal Father

That brings us to the Tennessee case - decided by the Tennessee Supreme Court the same week the Kentucky court issued its decision in Hinshaw v. Hinshaw.

In the Tennessee case, In re T.K.Y., the outcome was the opposite: The husband was determined by the court not to be the child's legal father, even though he, like Ren Hinshaw, wished to continue the parent-child relationship he had commenced at the child's birth.

The Tennessee case was different from the Kentucky case in one way: The biological father (not present in the Kentucky case) also wanted to be named the legal father of the child in dispute.

The facts of the Tennessee case are these: Mrs. Y, while married to Mr. Y, had an affair with Mr. P. Mrs. Y gave birth to a child. But she concealed the affair and her suspicions about the child's parentage for quite some time.

Eventually, however, Mr. P sued to establish his paternity - and genetic tests showed he was, with 99.95% likelihood, the child's father. Despite Mrs. Y's infidelity, she and her husband decided to remain together, and together, they opposed Mr. P's suit.

Like Kentucky, Tennessee rebuttably presumes a woman's husband to be the "legal" father of the children born to her during the marriage. The DNA test, however, arguably rebutted that presumption with respect to Mr. Y.

Tennessee law also presumes that a child's biological father is his "legal" father. . The men were thus "tied" for legal fatherhood - a tie that the Tennessee Supreme Court broke by resort to biology alone. The court concluded that "the rights of the biological father" - Mr. P - "are superior."

Mr. P was thus declared not only the biological father, but the legal father as well.

Why Did the Kentucky and Tennessee Courts Reach Opposite Conclusions?

Why did these two cases with such similar facts reach essentially opposite results?

The availability of the biological father in the Tennessee case is one important variable, since the court knew the child would have a source of support regardless of which way the court ruled. Courts are clearly more hesitant, rightly or wrongly, to disestablish the paternity of one man, when there is little chance of establishing it with respect to another.

The slightly different statutory schemes might also account for the different outcomes; as noted above, Tennessee presumes a child's biological father is his "legal" father; Kentucky does not.

In the end, these cases reflect modern courts struggling to deal with an age-old issue - with a new factor, DNA testing, thrown into the mix. Ironically, the simplicity of DNA testing has actually made these cases even more complex. Courts can no longer assume marriage and fatherhood go hand-in-hand, and simply refuse to consider indisputable scientific evidence to the contrary. Instead, they must consider the proper role for biology in the determination of legal parenthood - an issue that reflects an ongoing struggle in family law.

Letting biology trump all other aspects of fatherhood is overly simplistic, and seems clearly unjust in cases like that of Ren Hinshaw - an at-home father who had established a strong bond with the child he considered "his." Still, it's hard to know where else to draw the line.

Joanna Grossman, a FindLaw columnist, is a professor of law at Hofstra University. Her columns on family law, trusts and estates, and discrimination, including sex discrimination and sexual harassment, may be found in the archive of her columns on this site.

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