Kentucky Picks DNA Over Marriage in Choosing Fathers

I have written frequently about the marital presumption, which is commonly invoked in a number of contexts.   The basic idea is that when a married woman gives birth her husband is presumed to be the father of the child.   (This is an ancient rule and you can learn more about it by reading through some of the older posts.)   

Given that DNA testing now allows us to determine with certainty whether the husband is the source of the genetic material used to create the child there’s debate over the continued utility of the marital presumption.   For some it’s become anachronistic, standing in the way of the truth (which is to say the DNA).   For others, the presumption is an assertion about the importance and centrality of marriage and the DNA evidence doesn’t change anything.

The presumption comes up in many contexts and so perhaps it is difficult to generalize.  Consider a case, for instance, where a male/female married couple is unable to conceive because the husband does not produce sperm.   They elect to use third-party sperm.   We all know that the child will not be a DNA match with the husband, but many would agree that in a case like this, the husband should be recognized as the legal father.  The marital presumption gets you there.  It  functions as a joint enterprise theory.  

The marital presumption may look quite different in the context of adultery.  So suppose a married woman has an affair and become pregnant.   Who is the legal father of that child?   

Here it might be important to consider how presumptions operate.   If the husband wants to say “it’s not my child” I think nearly all jurisdictions will allow him to do so by offering DNA tests.   (Is anyone aware of a place that would not allow this?)    If the wife would prefer to raise the child with her lover rather than her husband then she may be able to use the DNA tests to rebut the presumption that her husband is the legal father, too.  

But what about the case where the husband and wife decide they want to raise the child together, within the marriage, even though it is clear that the DNA came from the lover?   This is the instance where some would say the presumption enhances the centrality of marriage.   And in some states  the husband/wife win.    

Kentucky was among these states as recently as 2008 but, as the Wall Street Journal Law blog reported, it is no longer.   Here are a local news story and the opinion from a divided Kentucky Supreme Court.  In this case, Kentucky reverses earlier law and allows the man who provided the DNA to assert paternity–which is to say, to assert legal parental rights. 

I’m on my way out the door for a round of Memorial Day activities so there’s no time for further analysis just now.  But I figured I’d set the table for a more thorough discussion later.


12 responses to “Kentucky Picks DNA Over Marriage in Choosing Fathers

  1. marilynn huff

    We already know what my opinion is. I’d rather have an interesting conversation with you about what the ruling means to you.

    There are 3 ways a lesbian mother could assert that a female is the other legal parent of her child.
    1. At birth, if the mother is married, her spouse could be named as the child’s other parent if the State extends its marital presumption of paternity to biologically unrelated female spouses as it does to biologically unrelated male spouses
    2. At birth, if the mother is unmarried, her partner could be named as the child’s other parent if the State extends its presumption of paternity to biologically unrelated females who fill out a Voluntary Admission of Paternity and have it signed by the child’s mother to the same extent the state will extend its presumption of paternity to biologically unrelated males who do the same thing.
    3. Sometime after birth, if the mother is unmarried, she can sue her partner for child support claiming that the partner held the child out as if it were her own biological child, and the child thinks of the partner as if she were a biological parent, therefore the state should treat her as a de-facto parent the same as it would treat a male as a de-facto parent if he had done the same thing.

    I know that you are sort of a proponent of the marital presumption, yet you wavier a little. My take on your wavering is that marital presumption requires legal recognition of marriage which is not available to female couples in every state. I think you’d prefer a system that said children have a mother and the mother can add a 2nd parent if she feels like it.

    (choke – how am i doing?)

    I understand to achieve what your trying to achieve you need to embrace what I think are the most illogical aspects of family law, the loopholes that let errors in the presumption of paternity stand uncorrected even when the error was the result of fraud by the mother. But those loopholes represent an opportunity for lesbian couples to have legal recognition that a biologically unrelated woman could be granted parental authority in lieu of the child’s father.

    Looking forward do you see this as primarily being done when the father is not anonymous and wants to be involved? Do you think many Lesbian Mother’s would use these laws to block involvement by a man that wants to take responsibility for his children to any lesser or greater extent than mothers currently do the same when they want an unrelated male to be the other parent. I kind of think it would be the same. Also I’m sure you are aware that lesbian partners and spouses are just as likely to fall victim to opportunistic exploitation of those loopholes by less than scrupulous Mothers when they never intended to be de-facto or whatever. Is that an executive decision that lesbian couples want access to those same loopholes even if many of lesbians will fall victim to various sorts of paternity fraud just as men currently are?

  2. Let’s see–I think I can address some (but not all) of this.

    I don’t actually like the marital presumption all that well. I see it has legal advantages—it often gets us (as a society) where we want to go. It creates legal relationships between two adults and one child at the time the child is born and often the added adult (the one who benefits from the presumption) is who everyone would want to be the second legal parent.

    But the marital presumption is grounded solely on the legal relationship between the woman who gives birth and the other adult in question. It has very little to do with the relationship between that other adult and the child. (Or the fetus in utero, for that matter.) This bothers me. You know I’m a de facto parent. If the husband (let’s say it’s a husband for the moment) has nothing to do with the pregnancy/childbirth, etc then it makes little sense to me to make him legal father. If instead someone else comes along and really steps up, I’d sooner give some sort of credit to that person-whoever it is.

    Which is to say, I’d rather go with de facto all the way down the line. That’s not consistent with the marital presumption, although sometimes, maybe even often, you get the same result. (It’s also a problem because it’s hard to see how someone gets to be the de facto second parent before the child is born.)

    I’m also not a great fan of intention. I mean, intention is fine until your actual behavior varies from your intention. I’ve said this before–my daughter’s assurance that she intends to clean her room means little to me if she doesn’t actually clean the room. So if intention and action diverge, I go with action every time.

    To me a known sperm provider doesn’t have a special entitlement because he provides the sperm. (That’s because I don’t go with DNA either.) If it is clear from the outset that he wants to be involved as a parent and the woman or women do not want him to be, it would be good if they found a different provider. I think it would be reprehensible to take sperm from him knowing that you planned to frustrate his intention to be a parent. Maybe there should even be an action for damages of some sort. But he wouldn’t be a parent.

    That may be part way to answering your questions.

  3. “You know I’m a de facto parent. ”

    I had no idea actually and now I have a much clearer understanding of your position as well as way more empathy. Rules are a place to start deviating from.
    Its harder to be in your position because if you are being trusted with these little lives you do need the actual legal authority to do stuff like make not only legal decisions on their behalf but just like every day decisions so that when you say move it the kids move it.
    But what I was saying about suing a partner to have the defacto thing get documented, an elaborate roose…I was just maiking that up it seemed like it would be helpful if you were not allowed to do a step-parent adoption because of the marriage thing.
    If you have not gained your parental rights in court yet I’m sure you will. My Dad was a defacto step parent to my brother before i came along and Dad had him on his medical insurance and everything as if he was his kid, but he could not claim him on his taxes I remember them saying that because he tried to adopt him from my mom’s x husband his dad. What formal things do you do or recommend others in your situation do to show the court to get your rights? I’m sure the kids are in your will, maybe life insurance is that the kind of thing that counts for defacto or having them use your name? etc

    • Uh oh–I was travelling for a weekend and left with a terrible typo in place–It says (as you rightly quote) “You know I’m a de facto parent.” It’s not exactly what I meant to write–I meant to write–“you know I’m a de facto parent fan.”

      This will sound odd, but I’m not sure if I’m a de facto parent, really, or not. I’ve adopted my children, so I have a solid legal claim to parentage that does not run through the de facto doctrine. On the other hand, I have functioned as a parent to both children (now 12 and 16) since their birth. So that means I am a de facto parent as well, perhaps. It’s just that I know way too much about law (and the perils thereof) to rely on that alone.

      I’m sorry if I was misleading and I do apologize for being inattentive. But perhaps the discussion is valuable anyway. Certainly it is true that I locate the core of my status as a parent in the performance of the functions (de facto) rather than in the niceties of adoption law.

      • ha. your cool. sorry i misunderstood. if you adopted then its a done deal no challenges on the horizon for you.

  4. “But the marital presumption is grounded solely on the legal relationship between the woman who gives birth and the other adult in question. It has very little to do with the relationship between that other adult and the child.”

    I do not agree Julie; it is a presumption that the kin relatinship exists because it is in deed most likely that this is so.

    • I’m not sure what you mean by “kin relationship.” Do you mean a genetic relationship or a social kin network kind of relationship? In either case there is truth to what you say. When a married woman gives birth to a child it is likely that her husband is genetically related to the child and it is likely that he has a social relationship to the child. What the presumption does is save us the time/effort/money from having to find out whether the likely truth is indeed the truth in whatever case we are thinking about.

      What I mean is that if DNA is really the most important thing, we could just directly test that in all cases. No more need for presumption. That’s a harder course if we care about the social kin relationship, but it could still be done. But if you have a strong version of the marital presumption, you wouldn’t allow rebuttal.

      Maybe the justification for the presumption is efficiency–because you don’t have to bother finding out the details as it is most likely an accurate predictor of whatever it is you really care about–the kin relationship you reference?

  5. regarding defacto parenting; I’m all for a de facto status as long as its earned (and i have no doubt that yours is); one can’t become a defacto anything prior to the fact.

    • I also feel strongly that one should not become a de-facto parent against the wishes of the parent that they seek to replace, or without the knowledge of the parent that they wish to replace. Additionally I don’t think a person should become a de-facto parent without their own consent. I think its wrong for a person to sue someone for child-support claiming that they were a de-facto parent.

      Short of actually suing a partner for child support, how would a person go about becoming legally recognized as a de-facto parent? I was looking at the laws in California and it seems there are other ways the court will recognize a person as a permanent legal guardian of someone else’s child giving them authority to make decisions on the child’s behalf in the absence of the parent. Are those ways used by people to establish legal authority in lieu of actually being sued for child support? I’ll go hunt for the code I saw.

      I think Kisarita that there ought to be an escape clause in the marital presumption to stop rewarding perpetrators of paternity fraud – when the wrong man is named father it defrauds the child the State and Federal Government and frequently the man who’s incorrectly named father. Children who learn that their father’s or mother’s are not related to them should have the option of going and getting their birth records corrected and having those people who use to be on the birth certificate named as their de-facto parents so that they can still inherit from them and still be eligible for support if they are under 18. Obviously if the people raising them say they went to a fertility clinic to conceive with an anonymous male or female, somewhere there should be a consent form to prove the anonymous parent agreed to all of it. When marital presumption is false documents need to be corrected. Parenthood should not be established by the relationship with the mother, rather than the child to that I wholeheartedly agree.

      • De facto parents don’t need to replace anyone if you don’t bind yourself to two parents at max. Of course, we might need to sort out who all the other parents are and you and I will disagree about that. I’d say there are instances where the sperm provider isn’t a parent, you’ll say he is a parent. But that’s a totally separate question and I wouldn’t argue that his status depends on whether or not there’s a de facto person around somewhere.

        The doctrine isn’t totally uniform, but it’s generally impossible to become a de facto parent without meaning to be. You have to form a parent/child relationship, basically, and I don’t think that happens accidentally.

        The hardest thing about de facto doctrine is how and when you know that you are a de facto parent. Given that it is earned, you can only get it after-the-fact. Usually it only comes up when the relationship between de facto parent and child is attacked–either by other parents or by the state or potentially by the putative de facto parent herself/himself. That’s a bit of a problem, I must conceed.

    • agreed. De facto must be earned and this distinguishes it from parenthood by virtue of intention.

  6. if the birth certificate said “name not disclosed by OHSU Andrology” in the line for father, it gives the kid some leverage legally elevating the undisclosed man from a legal stranger to their unnamed father, who they may very well have a right to know. Its just one little way I’ve been thinking would give kid’s some leverage, as long as they keep referring to them as donors they’ll never have a right to know therm or their brothers sisters and other family members

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