It is striking to me that the last two cases I discussed (one from NY and one from CA) both turned on the application of the marital presumption. Since these two cases lined up right next to each other, I think its worth taking the time to think about them together.
First let me recap the basic presumption: It’s an ancient (perhaps an archaic) rule that when a married woman gives birth to her child, her husband is presumed to be the father of that child.
That’s a presumption that can be rebutted under defined circumstances and while all states have this presumption, there’s variation in whether/when/how the presumption can be rebutted. The recent CA case turns on a common provision–if the husband and the wife stand together, no third party can rebut the presumption. (As far as I know, no state reaches a different result on this, but I confess I don’t for sure.)
The NY case turns on an extension of the of the general presumption. The particular one discussed is from Vermont law, but I don’t think there’s anything special about Vermont law here. As far as I know, all states use a similar extension. It’s for couples using ART and provides that if a married woman undergoes assisted insemination, her husband is the father of the resulting child. While the general presumption may, in appropriate circumstances, be rebutted by showing lack of genetic connection, here it cannot be rebutted that way. The extension of the presumption is specifically designed to override the force ordinarily given to genetic testing. (You can read a bit more about this in a discussion of an earlier case out of Oregon.)
The two cases recently discussed highlight the operation of the presumption. It requires proof of very little and what little it does require really cannot be contested. In the California case, all the couple had to prove is that they were married. In the New York case, Debra had to prove that she and Janice entered into a civil union. Neither of these things would be hard to prove. And it’s hard to see how either SG (in the CA case) or Janice (in the NY case) could contest the issue.
That’s a main point in favor of the presumption, I suppose. It is simple and easy to use. But if you look at the comments on those posts, you’ll see the corresponding weakness of the presumption: It isn’t at all concerned with the facts about the child’s life or relationships. It is these facts that would be critical to application of a de facto parent analysis.
I’ve no doubt that frequently the result reached by invoking the presumption will be the same as the result you would reach if you did a de facto parent analysis. In those instances where you’d reach the same result, the presumption is going to appear to be great–saves a lot of time and money, bring certainty and so on.
But what about the cases where the presumption and a de facto analysis would yield different results? (Let’s assume, just for the moment, that you think the de facto analysis gives you a better sense of what is best for the child in question.)
I think you can still make an argument that here, too, you should go with the presumption. Even if it isn’t the best outcome in the particular case, it’s general strengths might outweigh the occasional wrong result. Or not. At least in part this depends on how frequently you think the presumption might yield a “wrong” answer.
This leads me to one important point. It’s important not to judge any particular test (the presumption, the de facto analysis, whatever) by the outcome of any one case. For example, I might like the outcome the presumption yields in the New York case, but it doesn’t mean I like the presumption. To make a judgment about the presumption generally, I have to consider its application in a wide range of circumstances.
I think I need to stress this because I tend to organize blog posts around particular cases and it’s easy to get caught up in the particular facts. Don’t let that obscure the fact that I’m really looking for a general approach that will work reasonably well across a range of cases.