Sunday, November 22, 2009

News: New York Times Rips on Paternity Laws and DNA

Today's New York Times' published Who Knew I Was Not the Father?.  For some reading me, this is not really news - I have been reporting on the problems with Indiana and its paternity affidavits for quite some time (check out the archive for my paternity articles).

The Times article points out the problem here (although they get it wrong using birth certificate instead of paternity affidavit but so do most of my clients and potential clients):

Once a man has been deemed a father, either because of marriage or because he has acknowledged paternity (by agreeing to be on the birth certificate, say, or paying child support), most state courts say he cannot then abandon that child — no matter what a DNA test subsequently reveals. In Pennsylvania and many other states, the only way a nonbiological father can rebut his legal status as father is if he can prove he was tricked into the role — a showing of fraud — and can demonstrate that upon learning the truth, he immediately stopped acting as the child’s father. In 2003, a Pennsylvania appellate court bluntly applauded William Doran — who had been by all accounts a loving father to his 11-year-old son — for cutting off ties with the boy once DNA showed they were not related. The judges found that Doran had been tricked by his former wife into believing he was the father of their son, and he was allowed to abandon all paternal obligations.
Courts, of course, deal with paternity cases only when there is a legal dispute. Many men don’t sue because it is expensive or because they suspect they will lose anyway. And then there are those who never even discover the biological truth. How many fall in that category is impossible to quantify. The most extensive and authoritative report, published in Current Anthropology in 2006, analyzed scores of genetic studies. The report concluded that 2 percent of men with “high paternity confidence” — married men who had every reason to believe they were their children’s father — were, in fact, not biological parents. Several studies indicate that the rate appears to be far higher among unmarried fathers.

The article is very long but I cannot do anything but recommend it.  I will point out this is not just an Indiana problem but a national problem.  It is also a problem that needs a legislative solution - the judges have their hands tied by the legislature in making any changes.  About a legislative solution, the article gives an idea that I was unaware of:
The law that Smith helped to pass in Georgia, like a similar one in Ohio, sets no time limit on using DNA to challenge paternity. The premise is that a man shouldn’t be punished for entering a paternal relationship that he would have avoided had he known the truth. It is, Smith says, a correction to a double standard that allows mothers and caseworkers to use DNA to prove paternity but prohibits men from using that same evidence to escape its obligations. But child-welfare experts counter that a child shouldn’t be punished by losing the only father she has ever known — or the financial security he offers — just because he’s upset that she doesn’t share his genes. In 2002 the National Conference of Commissioners on Uniform State Laws — an influential body of lawyers and judges that proposes model laws — drafted a compromise. The proposal would allow the presumed father, the biological father or the mother to challenge the paternity until a child turns 2. The proposal had two goals: to balance the rights of children with those of their presumed fathers and to encourage parentage questions to be raised early in a child’s life, before deep bonds are formed. Several states, including Delaware, North Dakota, Oklahoma, Texas, Utah, Washington and Wyoming, have adopted that model or a variation of it. But men’s rights groups complain that most putative fathers don’t discover the child isn’t theirs until after the two-year window closes — at which point, they have little or no recourse.
I think I should point out that the article delves into the other side of the equation - the effect on children. In this regard, I suggest reading Montana Supreme Court Recognizes Parental Interest in Non-Biological De Facto Parent and Leonard Link's Montana Supreme Court Affirms Parental Rights and Property Settlement for Lesbian Co-Parent.  There is an Indiana opinion or two recognizing a step-parent's right to visitation - or so I recall - that bear a resemblance to the Montana case.

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