Who’s the Father?

A recent comment on an earlier post led me to this case.  Sandy May asks, reasonably enough, who I think the father is.   Turns out I have some thoughts about more than just that question.  

Here’s the story in a nutshell.   Woman marries man (call him M1) in 1986.  While married to M1 she gives birth to three kids, in 1989, 1993 and 1996.  M1  believed he was genetically related to each of the children and assumed all the obligations of a parent.  In fact, the 2nd and 3rd children were genetically related to a different man (M2), but that’s getting ahead of my story. 

In 1997 the wife told M1 that she’d been having an affair but assured him that the children were all “his”–by which she meant they were genetically related to him.   As a result of the revelation about the affair, M1 and the wife separated, but they shared custody of the children, four days each, for eight more years.  

In 2001 the wife married M2, who had himself been married but had by then gotten divorced.  (For good measure somewhere in here, M1 married the nanny, but nevermind that for now.)    

Eventually–I’m not clear when, but before 2006–the wife had the children’s DNA tested.  The results showed that the second and third children were in fact genetically related to M2.   In 2006 wife and M2 took the kids abroad (out of the UK) on a holiday. They have never returned and they have not allowed M1 to communicate with or see the children.  

 What brings all this to light is that M1 is now suing M2 and his wife for money damages, in large part for the cost of supporting the 2 children who he is not genetically related to from their birth up through 2007.  He’s seeking damages for what must be a British tort called, appropriately enough, deceit.

To me the first set of critical facts are this:  From 1989 to 2006 M1 acted as the parent of all three children.   By 2006 the kids were and 17, 13 and 10.   Whatever the mother knew about the genetic origins of the children, she was apparently (at least from what we know this far) happy to have this arrangement continue.  

Under these circumstances, I would assert that M1 is the father of all three children.  He is de facto parent and the law ought to recognize that.   

The wife and M2 have acted wrongly in severing his ties to his children, as much as if all three of the children had been genetically related to M1.  M2’s discovery that he’s genetically related to the children (or his willingness to acknowledge the existence of the DNA link) is no excuse for the conduct.   If M2 would like to establish an actual relationship of some sort with the children, perhaps he should be allowed to do that.   But this gives him no right to excise an existing parent.

All of this is entirely consistent with my consistent assertion that we judge parenthood by actions rather than laboratory tests.     

Perhaps there should be damages awarded in a case like this–for the interference of the wife and M2 with M1’s relationship with his kids.   Certainly M1 should have the right to spend time with and be in contact with the children, as any parent should.  

There’s another wrong that was done to M1 that perhaps should be considered.  Had his wife told him at the time the second child was born that he was not genetically related to the child, the whole story might have unfolded quite differently.  Perhaps he would not have forged a relationship wiht the child.   Perhaps the marriage would have ended immediately.   We cannot know that. 

It seems clear that the wife deceived M1 and I’m not going to say she should not have to answer for that.  I don’ t know how to measure the appropriate sanction for this deceit, however.   But it is not–it cannot be, in my view–to erase the 13 year relationship M1 had with the second child.   I don’t know whether that is something M1 wants or not.   But it ought not to be in the power of the law to give.  

Finally an aside:  The oldest child would now be 20 years old and surely able to exercise some degree of autonomy.  I’d like to know where he is and what relationships he has with who.  I suppose I’m just curious about this, but there you are.

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