There has been a lot of discussion of the marital presumption here, even though I actually haven’t posted on it recently. (It’s part of the discussion in the comments on the last post–one about surrogacy–for example.) Since this very recent case from Michigan crossed my desk, I thought I’d use it as an opportunity to offer a few thoughts. (You can find much more discussion under these posts if you like.)
A few explanatory words, first. (Some of this is quite repetitious if you have been reading the comments closely, for which I apologize. But for others this might be useful.)
The marital presumption is an ancient one–quite literally hundreds of years old. The idea (originally) was that if a married woman gave birth, the husband was presumed to be the father of the child. This wasn’t necessarily a presumption of fact–it wasn’t that people assumed that the husband was the genetic father. They knew perfectly well that sometimes he was not. But the husband was presumed to be the legal father.
In its initial form, this was a strong presumption. What I mean was it was hard for a husband to rebut the presumption and establish that he was not the legal father. This was at least in part because illegitimate children were very harshly treated in law. The presumption essentially made many children legitimate without any regard for whether there were conceived in an extramarital affair.
Now times have changed quite a bit in at least two important regards. First, we (speaking generally of society) have recognized that it is not fair to punish children because of the marital status of their parents. It’s hardly within the child’s control, after all. So legal structures that disadvantage children of unmarried parents are viewed with skepticism. (This is not to say they are gone.) Second, we have cheap, fast and reliable DNA testing at our disposal. Thus, the truth of a child’s genetic parentage is more readily accessible to us.
Given these changes the marital presumption has also changed. This is unsurprising. Perhaps what is remarkable is that it has survived at all. But survived it has and I believe every state in the US still has some version of the presumption. (There is, however, a good deal of variance state to state which can make this an extremely confusing area of law. )
Generally the presumption can now be rebutted more readily–using DNA tests. But it isn’t as simple as saying that you can use DNA tests to rebut the presumption whenever they show something at odds with the presumption. In a very well known Supreme Court decision (Michael H vs. Gerald D) Michael (who was the genetic father of the child in question) was not allowed to use DNA tests to rebut the presumption that Gerald (who was married to Carole, who had given birth to the child) was the legal father of the child. That’s because Gerald and Carole stood together against Michael and the Court preferred the marital family. I think (though cannot say for sure) that a majority of states would reach the same result today–where the husband and wife want to claim the child as their own and raise it within the marriage, they can do so–and DNA tests don’t make any difference.
On the other hand, under CA law as it stood then, if Gerald had wanted to disclaim the child, he could have used the DNA tests to do so. Where once the presumption had worked to the disadvantage of the husband (forcing him to assume parentage of a child not genetically his) now it works to the husband’s advantage (allowing him to disclaim or claim a child as he chooses.) I’m quite tempted to say that this isn’t about genetics–it is about power. And the power to embrace a child if you want comes with marriage.
Now to the Michigan case. David and Tracy Parks were married. Tracy gave birth to a child during the marriage. The parties divorced in 2011. Custody orders were entered.
In 2013 Tracy sought to terminate David Parks’ parental rights–asserting that another man (David Achinger) was the genetic father of the child. Apparently genetic testing supported this assertion.
Now David Parks was a legal parent of the child by virtue of the marital presumption. And he wanted to maintain his status as parent so he resisted his former wife’s action to terminate his rights. Michigan law does allow for revocation of paternity (which is to say, rebuttal of the presumption). But to gain revocation Tracy Parks had to show :
The presumed father, the alleged father, and the child’s mother at some time mutually and openly acknowledged a biological relationship between the alleged father and the child
But Tracy Parks couldn’t show that David Parks had openly acknowledged the biological relationship between Achinger and the child, even though she could show that Parks knew about it. Of course David Parks could have openly acknowledged the relationship had he chosen to do so. But if he didn’t choose to do so, then nothing Tracy and/or David Achinger could do could force him to. Essentially he could choose to be the child’s legal father or not, as he wished. Again, I think you could say that the presumption gave him power to choose.
I don’t mean to suggest that he could change his mind on this point, by the way, flipping from being the father to not being the father. There are other doctrines–things like estoppel–that would prevent him from doing that. And of course, he might not know about the law and so he (or some other man in another case) might openly acknowledge the genetic realities without realizing the legal consequences. Additionally, I make no claim that the MI legal structure is a common one–I just don’t know.
But it seems to me the case is interesting in that it shows just how the presumption can operate and the extent to which it can now serve to empower a husband at least in some instances.