A new case from Arkansas illustrates the problem of conflicting theories of fatherhood. The facts are not terribly uncommon, actually.
Michael Stevens and Kathleen Harris were married. Harris gave birth to a child (TMS) in February, 2003. Stevens and Harris divorced in 2004 and Stevens was awarded custody of the child. He moved to Arkansas some time after that. Stevens claim as a father rests on the fact that he was married to the mother at the time the child was born.
Stevens is not genetically related to TMS. Steve Wolfe is. Apparently Harris told Wolfe he was “the father” of the child while she was pregnant. He remained “in the child’s life” (I’m not exactly sure what that means) until August or September 2004. In any event, it appears that the parties agree that Wolfe is genetically related to the child. This, too, is a conventional basis for claiming parenthood.
Stevens knew he was not genetically related to TMS from shortly after TMS’s birth. But Stevens didn’t challenge the presumption of parenthood arising from his marriage to Harris and chose to stay on as father after the divorce. Indeed, as I noted above, he received custody of TMS. Some time after he moved with TMS to Arkansas, Wolfe filed a paternity action.
The lower court held that Wolfe had waited too long to file–this is a doctrine called “laches”. But the appellate court here disagrees, noting that the Arkansas paternity statute (which I guess governs, although the child was not conceived or born in Arkansas) provides that an action for paternity may be brought at any time.
That’s as far as the appellate court needs to go, of course. Now the case goes back to the trial court. But what happens next? And why?
TMS is now 6 years old. It appears he’s lived with Stevens for the last five of those years. He probably has had little or no contact with Wolfe since he was less than two.
Now one question is whether any of this history matters when figuring out who TMS’s father is. It may seem curious, but we generally do not consider what is best for the child when we are trying to figure out who the child’s parents are. There’s actually a couple of reasons for this. Perhaps I’ll discuss these another time.
If you do care about what’s best for TMS, I’m not sure that completely dictates your answer, but it seems to me that it strongly favors Stevens, not because of the marital presumption, but because of his performance as a parent over the years. He’s a de facto parent, and in my view that’s a trump card.
If you don’t consider yourself constrained by what’s best for TMS, how do you decide between the competing arguments? (I mean parenthood based on marriage and parenthood based on genetics.) Is one more important than the other? Does one have better implications for society as a whole?
You can also wonder if we need to choose at all. Could they both be parents? It’s a bit hard to imagine these two men who probably have little to no relationship with each other as co-parents. (And what became of Kathleen Harris, by the way?)
For what it is worth, there’s another somewhat similar case back there in the blog. Be good to try and figure out what happens in these cases after the opinions we read.