Who’s Your Daddy? What to do when you think Junior isn’t yours.

It is my hope that in launching this blog, I will be able to introduce controversial topics of the law that affect folks in real terms, and for which the outcome in a particular instance potentially affects the rest of their lives. Approaching this blog in a manner that will actually generate discussion and interest requires some time commitment and thought. With 35 years of legal experience and more war stories than General Patton, I strive to contribute in a meaningful way to public legal education, by discussing topics typical to our practice. They say be careful what you wish for, so it’s with a great leap of faith I’d like to pose for discussion the following question:

Under what circumstances should the law trump biology?

If you’re married and have a child during that marriage, the law presumes that you are the father of that child without inquiring further. That presumption is in place even if you’re not actually the biological father. More on that later. If a child is born out of wedlock however, you have to take an additional step to have your paternity declared, by signing a voluntary acknowledgment of paternity. Otherwise, it takes some judicial proceeding initiated by either the mother (or the state on her behalf if she seeks child support or public assistance), or by the father to establish paternity. A little hypothetical is in order: Your long term relationship has ended and you want to secure paternity testing late in the game. Possibly, in an effort to make the relationship work at the time of the pregnancy, you signed a voluntary acknowledgment of paternity at the time the child was born.

Neither of you have lawyered up yet, and the two of you have agreed on some money you’ll pay and some time you can spend with Junior (yes, he’s named after you) a couple of times a week. Your ex is really mad at you for not wanting to remain in a relationship with her, and she isn’t making things easy for you with Junior. She thinks you’re inept at child care (which may be true) and more interested in craft brewing than your son (which may also be true). You see the handwriting on the wall. It’s not going to be easy being a “dad”. You struggle with the situation, and decide that you just have to know for sure before making the commitment to be a “dad” to Junior. You decide to clarify the situation. A little on-line research reveals that DNA paternity testing can be done at home with a simple test kit that costs you $30.00 on Amazon. You click “order” and two days later you are holding the box in your hands. You read the fine print on the box and learn that you have to send the samples to a lab, which will charge you around $ 180.00 for a “sixteen marker” test. If you pay a little more, you can have a “24 marker test”.

You find out you don’t need the mother to participate in this test: the lab only needs a sample from you and a sample from Junior. You get a swab in the child’s mouth during your “two hour visit”. It doesn’t hurt a bit. You mail in the two swabs, and wait for them to tell you whether there is a “marker” in this child’s DNA code that would indicate that another man is Junior’s father. The report comes back – you are not the father. You go online and find out that the window to change your mind about a voluntary acknowledgment is sixty days. You signed the acknowledgment 65 days ago, the day Junior was born. Now what do you do?

A father has the right to file a petition even after the fact of having his paternity established if he either (1) acts in a timely manner following an act that establishes paternity such as signing a voluntary acknowledgement (that was the 60 days, so that ship has sailed) or (2) acts in a timely manner after having had his legal wife give birth to that child. Additionally, a father can seek to disestablish his paternity at any time if he can establish that he was “defrauded” by a mother into believing that he was the biological father. A father who acknowledges paternity when he knows or has reason to know he is not the biological father, however, would likely not be able to prove fraud. So in the absence of a timely petition, a successful petition to disestablish paternity requires proof that the mother wasn’t honest with you.

Some presumptions that are created by the law actually trump biology. Parents of children born during the parents’ marriage and parents who marry after the birth of a child following a joint voluntary acknowledged paternity out of wedlock must BOTH CONSENT if there is a filing at a later time by a man claiming to be the father of that child, even if that father has biology on his side, unless husband and wife have otherwise separated! That means that a non-biological father is the legal father of his wife’s child and the biological father has no rights unless the non-biological father agrees to disestablish his own paternity.

Finally in my topic for discussion is this curious little twist in the law here in Oregon that allows a court to deny a petition to disestablish paternity if it finds that it isn’t in the child’s best interests to do so. If Husband and Wife should later divorce, Wife resumes relationship with Biological Father, and Wife and Biological Father want Biological Father to become the legal “dad”, can dad on the birth certificate keep that from happening? You bet, particularly if the child recognizes the legal father as his dad and their relationship is one of parent and child. This is a situation where the court can apply its equitable power to keep things from happening that might injure the welfare of the child, that may not be in the best interests of the child. This is an example of the law trumping biology in the name of what is right.