As you’ll know if you’ve been reading here regularly, I’ve run across a whole string of cases involving the marital presumption recently. (This is the presumption that a child born to a married woman is the (legal) child of the woman’s husband.) These cases all arise when a man who is not the woman’s husband can invoke DNA testing to demonstrate that he is the genetic father of the child. And then the question is “what next?”
In most of these recent cases the husband and wife standing together can fend off the genetic father. There’s a sort of “he should have known better” response. (If the husband doesn’t want to claim legal parentage, he typically doesn’t have to.) In one (from CA), the case is remanded for further proceedings, though my sense was the husband was likely to win there.
Here’s yet another of the cases, this one from Kansas, decided by the court of appeals there last week. I think it follows the path laid out in CA though the ultimate outcome seems less clear to me. This may be the first of the recent cases in which the genetic father wins, but it’s too early to say that for sure.
Jack and Dana Greer were married. They separated and Dana dated John Farbo. Eventually, though, Jack and Dana reconciled. Shortly after they did, Dana found she was pregnant. She told John and it seems everyone assumed he was the genetic father. Emily was born in October, 2012. John learned of her birth a short time after that.
Genetic testing (done in January, 2013) proves John to be the genetic father of Emily. He filed for paternity. (It seems clear, though it isn’t stated, that the tests were done with the approval of Dana.) John frequently visited Emily and Dana (when Jack was away). He took a variety of steps to establish a relationship with Emily. (Jack, too, established a relationship with Emily.) The trial judge decided that it wouldn’t consider the genetic testing, which pretty much left John without anyway to prove himself a legal father. The appeal to the intermediate court followed.
The appellate court here reversed the trial court. It found that both John and Jack were entitled to invoke presumptions of legal fatherhood. What it didn’t decide was whose presumption would ultimate prevail. It did, however, point to a statute that provides some guidance. The court quoted KS law:
“the presumption which on the facts if founded on the weightier considerations of policy and logic, including the best interests of the child, shall control.”
(Page 16. Emphasis added by court)
While the court does go on to provide an interesting discussion of the various factors that might be taken into account, in the end it concludes that it need not address the balance between the presumptions, because it is for the trial court to do that, at least in the first instance.
Given the facts in this case it is not particularly obvious to me which direction the trial court will go. (By contrast, I thought the CA course was pretty clear.) I surely don’t envy the trial judge. And it does make me wonder why it has to be a zero sum game.