I’ve written with some regularity about the marital presumption. This is the idea–ancient in origin–that when a married woman gives birth to a child her husband is presumed to be the father of the child. In its strongest form, this means that even with DNA tests showing that a different man is the source of the sperm, the law labels the husband as the legal father of the child.
You can browse around the blog find various discussions of this rule. For instance it was recently rejected in Kentucky though it had earlier been affirmed in California. It’s application to lesbian couples is also interesting. Since it is parentage not based on biology but rather on legal relationship with the other parent, it ought to (and sometimes does) apply to the wife or domestic partner of a woman who gives birth.
In any event, there’s a new California case that reaffirms California law, but makes some interesting points along the way. Here’s the basic story: Mary has been married to Scott since June, 2001. She gave birth to twins in May, 2009. Neil is another man who happens to be married to some other (unnamed) woman. (This becomes relevant shortly. I’m not just engaging in character assasination.) Between May and October, 2008 Mary and Neil were in Bahrain and they had an affair. (I think this much everyone agrees on.)
Neil says that from October, 2008 to February, 2009 he took Mary to doctor visits and “generally cared for her and spoke, read and sang to the twins in utero.” Mary may or may not agree with that but it seems fairly clear that in February, 2009 Mary returned to San Diego and reunited with Scott.
When the twins were born Scott accepted the twins into his home. Scott’s name was placed on the birth certificates and, according to Mary, “Scott was a ‘stay-at-home’ dad and the twins primary caregiver.”
The legal action began when the twins were ten-months old and Neil filed a petition seeking to establish paternity. Neil wanted DNA tests done in order to establish that he was genetically related to the twins. As it turns out, he doesn’t get the DNA tests (or anything else) because it wouldn’t matter what they showed–Scott and Mary are and were married and wish to raise the children together and so, under California law, Scott is the legal father of the children. Since Scott is the legal father, Neil cannot be.
As I mentioned, the law in California was fairly clear on this point before this case so Neil had to try to say his case was somehow different from those that came before. He tried at least three different arguments, each of which I find kind of interesting.
Before noting them, however, it’s worth articulating the rationale the California court offers for the result it reaches. Its primary considerations are the integrity of the family (that would be the married family headed by Mary and Scott) and the protection of the child’s well-being. This means that Neil’s only chance is to show a social (as opposed to biological) relationship with the children.
In this context Neil argued that he had a social relationship with the children, by virtue of having sung to/talked to them while they were in utero. Now that’s an interesting point to me because I’ve been trying to figure out whether I think a person other than the woman who is pregnant can have a meaningful social relationship with a child in utero. This matters to me because I am generally supportive of the idea of de facto or functional parentage. In this case, the court rejected Neil’s argument on this point, saying:
Neil’s proposed “prenatal relationship” theory views the relationship from the alleged father’s perspective, not the child’s, and thus does not advance the policy considerations recognizing the value to the child of an established parent-child relationship.
This is the first time I’ve seen a court consider this argument and so it is worth flagging.
I think all I have time/space for here just now is to flag the other arguments Neil made. He argued that Mary prevented him from forming any social relationship with the twins and shouldn’t be able to benefit from that conduct. And he made a slightly perverse argument that since he was also married, his marital family ought to be as good a choice as Mary’s marital family. I’ll come back to both of these tomorrow.