Paternity

Elizabeth Marquardt raises an interesting question concerning the presumption of paternity and same-sex marraige.  She writes:

Until very recently, in heterosexual marriages all children born were assumed to be fathered by the husband. Maggie Gallagher has written that this legal assumption functioned to protect the child, and she notes that there are judges who have now bypassed that assumption and awarded paternity to the boyfriend who fathered the child. The weakening of the husband's presumed paternity puts children at risk.

I encourage anyone who can further my knowledge in this area to do so.  Here is my understanding of the presumption of paternity which could certainly be wrong.  Family law varies from state to state, but the common law worked something like this.  A child born into a marriage was assumed to be legally the child of the husband unless the husband (or wife) rebutted this presumption and then usually only if they rebutted the assumption within a certain limited time frame.  One way the husband or wife could rebut the presumption was by introducing evidence that the husband was incapable of impregnating the wife at the relevant time.  The main thing was that nobody other than the husband or wife could challenge this presumption.  I think it is this latter part that has changed in some jurisdictions, but not in others.  Note that denying such a challenge supports the position that a child should not always be placed with the biological parent even if the biological parent desires it.  In any case, I believe this is the current situation (and please somebody correct me if I've got things wrong).   Elizabeth continues:

So what would be the case with SSM? If a lesbian woman married to another lesbian woman shows up pregnant one day, will her lesbian partner be presumed to be the child's other legal parent" In this case, as Gabriel Rosenberg states, will "marriage make this legal responsibility automatic and immediate for children born into the marriage"? Or will the biological obvious-ness of another partner in the mix further weaken the legal power of marriage to "legitimate" children, for children born of married gays and lesbians, but also for children born of married heteros?

I think the case would be the same as OSM in the case of a sterile or impotent husband.  That is either spouse could (rather easily) challenge the presumption of paternity.  If neither did so within a certain time frame (I think it's generally around 60 days), the same-sex partner would be the legal parent and bear full responsibility for the child.  I don't see why SSM would cause the law to change as the law already deals with the case of sterile husbands.  This shows yet another example of how SSM can be an excellent protection for children.  Without marriage if the couple raises the child for a year and then splits up, either partner might try to deny the nonbiological partner as a legal parent thus, as Elizabeth notes, putting the child at risk.  (Although Maine's highest court last week ruled the nonbiological partner was a defacto parent, in a sense ruling as if the couple had been married).  With SSM the law would be clear and the nonbiological parent would be legally bound to continue to care for the child, that is she can't change her mind.

Check out this article from the Pittsburgh Post-Gazette about some of these issues in a Pennsylvania case from 1999.  I believe this is the bill referred to in the article. 

Comments

[lucia]

1) I'm not a lawyer..but my impression of "presumptive father" pretty much matches yours.

2) I would assume that, yes, the "presumptive parents" in the case of married lesbian's should fall along the same lines.

If Elizabeth likes musical theater, I suggest she watch "Most Happy Fella". At the end of the play,aged, wheelchair bound, Tony is tickled to death at the thought of becoming the presumptive father of his young bride and Joey's baby!

(Of course, the songs are also worth hearing.)

[Galois]

That's right! I forgot about "Most Happy Fella". A friend of mine was in a prouction of it up in Berlin, CT. I didn't really enjoy the show (except my friend was great, of course). The title song still runs through my head at times, and now it's back. "Most happy, happy, happy...."

[lucia]

On topic: What is presumptive fatherhood?
Obviously the details will vary from state to state.

Probably NH based on the link.. presumptive father
The source seems to be dated 1990. (I can't seem to get to the root page by truncating the link.)

Off topic:
Hmm... I always liked: "Standing on the Boardwalk Watching All The Girls Go By"

It's a relatively difficult musical to cast. It's tough to find actors who sing both opera and jazz well.

However, back on topic. Should anyone wish to take the "arguing based on fiction tack" my reading of the Utah statute cited above would suggest:

1) Tony, who was clearly bedridden and, I think in a coma, at the time of conception, would be the "presumptive father" according to I(a).

2) According to II, that presumption could be rebutted if one provided clear and convincing evidence.

3) Once Tony knew, or should have known, Amy's baby was born, Tony would have 30 days to provide the evidence to rebutt the presumption. (Tony did not wish to provide any rebuttal evidence and instead, and sings "Most Happy" again!)

4) As Joey, the genetic-one-night-stand father simply went wandering it appears he is not a "presumptive father" under that law.

5)Had Joey stuck around, and married Amy, and Joey's name had been put on the kid's birth certificate,

In the case of (5), there would be two presumptive fathers. This is addressed at the end of the article in the link I provided.

There is a final sentence, The presumption shall be rebutted by a court decree establishing paternity of the child by another man.

So.. I take this to mean that if Joey comes back later and wants the kid..then Joey, Tony and Amy would all need to talk to lawyers!

The feds have also gotten involved in this:
dhhs article.

One general statement in the article:
Although genetic test results now make it possible to disprove a husband's paternity, most courts will not award substantive parental rights to the natural father of a child conceived within and born into an existing marriage, that wishes to embrace the child. (See e.g., Michael H. v. Gerald D. 491 U.S. 110, 127 (1989))

This would support your assumption that, traditionally, it has been difficult for the genetic father to claim significant parental rights.

Actually, that cited dcfs article contains numerous interesting tidbits. Evidently, in 1989, the U S Supreme court held a genetic father's interests are less than the State's interest in preserving marriage. (If I'm reading correctly, the state in question was California, and basically, the court found that, if a State so wished, they could enforce laws like CA's. This does not mean other states must pass similar laws.)

Continuing with the fictional line: The musical takes place in California, so, if ever wandering Joey returns and wants the kid, I guess Tony wins.

Evidently, according to DHHS, Iowa thinks otherwise. Had the play taken part in Iowa, Iowa would give Joey standing to sue for custody. Likely Joey gets the kid.

Evidently, Louisiana permits dual paternity!

Anyway, the whole thing sounds pretty complicated when you get down to some specific cases.

The existence of DNA testing has actually made things in some ways more complicated-- since it is possible to definitely identify the father. But, generally, the way you described it sounds sort of like the "standard" case.

I don't think the complications in the case of lesbian mothers are any more complicated than the ones that already arise in real life, or musical comedy. ;-)

[Galois]

Thanks. That DHHS link is very interested, and it definitely seems quite complicated. As you say, it doesn't seem like it is DNA testing that has thrown a real wrench into the works.

I do kind of like "Staning on the corner", but around the time we saw it, the song had just been used in some commerical (I can't remember whether it was some brand of jeans, or some clothing store). That took away something from the song as I kept thinking of the commercial as they sang. I did really like "Abbondanza", though.

[Pete]

I think the case would be the same as OSM in the case of a sterile or impotent husband.

[Light going on.] You have an excellent point there, Galois. Sorry I was slow to catch that part. Now I agree that's how a court *should* logically translate the PoP over to an FF "marriage" or equivalent thereof, but that doesn't mean that the courts will do so. A mischievous court could suddenly play literalist on the term "sterile."

That is either spouse could (rather easily) challenge the presumption of paternity.

As I understand the CA state law upheld by the Supreme Court in Michael H. v Gerald D., the presumption exists *unless* the husband is impotent.

Now to your Maine court ruling ... I don't know how you can celebrate this, while praising the horrid Massachussetts ruling in D.H.

"This ruling is a common-sense acknowledgement that children in all families need the love and commitment provided by their parents, whether those parents are biologically or adoptively- related to them or not," said Mary L. Bonauto, an attorney with Gay & Lesbian Advocates & Defenders who represented C.E.W., along with attorney Patricia A. Peard of Portland. "It would have been tragic if the Court had discounted one of the parents this child has known his entire life.

I don't need to think of C.E.W. as a "parent" to recognize that Maine ruled correctly and in the best interests of the child. There's an obvious duty and a familial attachment. This has nothing whatsoever to do with "sexual orientation." Naturally, GLAD doesn't understand this since they blather on:

This ruling starts to put children of gay and lesbian couples on an more equal footing with children of non-gay parents because it assures that (at least some of them) will have a chance to continue their relationship with their parents even if the parents separate."

What a typical, monomaniacally self-centered thing to say. Children of broken and experimental family forms, as a group, will never be on an equal footing with the children who have a loving father and mother. The goal of family law isn't to put all children on equal footings, but to put each child in the best situation possible.

In its opinion, the Court noted that the Maine courts have recognized de facto parental rights "for persons who have played an unusual and significant parent-like role in a child's life" in several opinions over the last sixty years. The Court stated that de facto parents should be limited to "those adults who have fully and completely undertaken a permanent, unequivocal, committed, and responsible parental role in the child's life."

Bingo. This decision, unlike the twin Masachussetts atrocities (Goodridge and DH), build on the foundations of traditional family law, for the good of the child. Unlike Massachussetts, this Maine court does not misappropriate childrens' legal protections, for the sake of furthering a potent political fad.

"The Court rightly acknowledged that its doors must be open to all families, including gay and lesbian families," said Patricia A. Peard, a former GLAD Board Member and regular cooperating attorney, who practices at Bernstein, Shur, Sawyer & Nelson in Portland. "It's wonderful that the law actually has caught up with the reality of children's lives," she added.

I disagree. I think the court would have ruled the same way in the 1940s, before Americans trashed the idea of the extended family, in order to accomodate a smaller weaker "nuclear" family that was more convenient for producing corporate drones. I would say rather that it's wonderful that the law has finally gotten back to the reality of what families are.

Several Maine professional organizations, including the Maine Psychological Association, the Children's Alliance of Maine, the Maine Chapter of the American Academy of Pediatrics, and the Maine Chapter of the National Association of Social Workers, among others, submitted a friend of the court brief addressing the scientific consensus that children raised by gay and lesbian parents are developmentally normal in every way.

Talk about hickacking a child's case for political gain! Both parents were lesbian. How in the world is that silly argument remotely relevant to this case? I'm just glad that the case came out the right way in spite of the idiotic and irrelevant briefs.

An aside: A consensus of scientists is not the same thing as a scientific consensus. If Sir Isaac Newton, Einstein, and Charles Darwin agree that blondes have more fun, that doesn't make it a scientific consensus. Scientific consensus is based on verified scientific study, which requires, among other things, precise and unambiguous parameters. The statement that "children raised by gay and lesbian parents are developmentally normal in every way" is so riddled with ambiguities and hyperbole that the statement is meaningless other than in a political feel good forum, therefore it cannot be the basis of any "scientific consensus."

[Galois]

Bingo. This decision, unlike the twin Masachussetts atrocities (Goodridge and DH), build on the foundations of traditional family law, for the good of the child. Unlike Massachussetts, this Maine court does not misappropriate childrens' legal protections, for the sake of furthering a potent political fad.

I'm assuming that throughout the above comment you meant TF when you wrote DH. The Massachusetts SJC (because of the justices who would later write Goodridge) have in fact recognized de facto parenthood as in Maine, but the defendant in TF did not meet the criteria for being a de facto parent. Three of the four justices from the Goodridge majority still would have required the defendant to pay child support under principles of equity (so the Goodridge justices cannot be accused in that case of "misappropriat[ing] childrens' legal protections, for the sake of furthering a potent political fad"). Rather it was the dissenters from Goodridge who reached the decision in TF, and I must admit they made some good points. For example in footnote 10 they write:

The dissent's conclusion that "parenthood by contract" is not the law, yet that a separate support obligation may nevertheless be imposed on a nonparent, is conspicuously silent on the possible ramifications of such a conclusion. Post at (Greaney, J., concurring in part and dissenting in part). Given the unprecedented nature of imposing a long-lasting support obligation independent of parenthood, we have no recognized legal principles for determining the defendant's status. For example, although the defendant voluntarily ceased visitation, would she have visitation rights, or some right to resume contact with the child, that she could seek to enforce? While presumably not having a right to custody, would she have any say in some aspects of the child's care, or at least in those aspects that would profoundly affect her own financial obligations (e.g., the decision to send the child to private as opposed to public school)? What if the plaintiff marries and her spouse wants to adopt the child? With an adoptive second parent to provide support, would there still be a basis for continuing the defendant's obligation? What if the plaintiff dies, or becomes incapable of caring for the child? Would the defendant then have the obligation (or the right) of full custody? Given the novel and unprecedented status the defendant would have under the dissent's theory, the Probate Court would be called on to supervise the relationship between the parties and the child for many years to come, and none of them would fully comprehend their rights and obligations until each such right and obligation gave rise to a disagreement and was later defined by way of litigation.

This is similar in reasoning to the dissent in the original case of E.N.O. (linked above) which deemed someone a de facto parent. They were upset that the majority in that case was in some sense recognizing a same-sex union without being so explicit. They wrote:

A bold statement granting judicial recognition to same-sex unions would at least place quite distinct limits, analogous to those now familiar to the law, on the otherwise utterly amorphous authority the court seems to bestow today. Thus the danger that the court's decision might be used in as yet unforeseen circumstances to deprive parents of their constitutionally protected relationships with their children would be diminished. This is not to say that limiting the court's decision to same-sex unions would eliminate all ambiguity. Many vexing questions would remain. What exactly is to count as such a marriage-like commitment? When does a coparenting agreement constitute the equivalent of such a commitment? Is either sufficient to create the rights the court seems to acknowledge today, or are both necessary? How is such a union to be terminated, and what are the other incidents -- support and alimony, for instance -- that may arise when it is terminated? Only the Legislature is in a position to deal systematically and comprehensively with this important subject. Our imprecise, indirect, and piecemeal entry into this field can only cause confusion.

Of course, if there is some constitutional basis for the recognition of same-sex marriages, the matter is no longer entirely at the Legislature's discretion.