The Case Against Paternity Fraud Laws



The Case Against Paternity Fraud Laws | |

|BY PROFESSOR MELANIE B. JACOBS, JD, LLM |

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|The family unit has dramatically changed in recent years. In an era in which individuals and couples, |

|heterosexual and homosexual, are embracing new reproductive technologies to create families, the |

|biological connection often does not assist in establishing legal parentage for intended parents. |

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|Couples and individuals alike may contract with egg donors, sperm donors, and gestational surrogates to|

|create their families. As a result, reliance on biology as the determinative means by which to |

|establish legal parentage no longer makes sense. Functional parenthood—emphasizing the daily, routine, |

|and even mundane aspects of everyday parenting—provides a more realistic approach to defining legal |

|parentage, especially for nontraditional families. |

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|Simply because we have the means to determine biological parentage with greater certainty does not mean|

|that it is in the best interests of children to do so. |

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|Additional scientific advances, particularly improved genetic testing, are similarly changing how we |

|define traditional families. While res judicata and estoppel principles have long existed to preserve |

|the unitary, nuclear family, some states are moving away from these doctrines in favor of biological |

|paternal certainty. Thus, if a man is not the biological father of a child—and was either uncertain or |

|unaware of this biological fact—he may petition to disestablish paternity. These disestablishment |

|petitions represent the emergence of a new family law phenomenon—the theory of paternity fraud. |

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|Michigan is among a growing number of states seeking to enact a paternity fraud law. About 12 states |

|currently have some form of paternity fraud law that permits a man who learns he is not the child’s |

|biological father to vacate an order that previously established his legal parenthood. Several of |

|these, like Michigan’s proposed statute, are open-ended, such that the man can file his motion to |

|vacate his paternity at any time—for example, five, 10 or 15 years after the child’s birth. Still |

|others have a stricter statute of limitations of two to three years. The statutes also vary with |

|regards to vacating child support orders and arrearages and also ongoing visitation and parenting time.|

|Thus, paternity fraud jurisprudence has at its core the difficulty of balancing competing best |

|interests: those of the child and the child’s non-biological yet legal father. Whose rights are |

|paramount? Whose should be paramount? And can we characterize this issue as one of genetic innocence? |

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|Michigan House Bill 4120 would allow a man to have a prior judgment of paternity vacated upon showing |

|that the man is not the child’s biological father or adoptive father and that the man did not know or |

|had no reason to know that he is not the biological father.1 The proposed bill contains no statute of |

|limitations for the filing of the motion, other than a requirement that the man must file the motion |

|within six months of learning that he is not the biological father. The proposed bill does not, |

|however, prevent a man who learns that he is not the biological father of his child 12 years after the |

|child’s birth, for instance, from filing a motion to disestablish his paternity. Worse yet, the |

|proposed bill and a companion bill, House Bill 4650, would permit the court to vacate all child support|

|obligations and any arrearages, while still permitting the man to seek parenting time with the child. |

|The proposed bill thus miserably fails to protect the best interests of children and instead places the|

|rights of non-biological fathers well above those of the children that they have actively fathered for |

|months and, oftentimes, years. |

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|Paternity fraud statutes—predicated on enhanced and cheaper genetic testing—are being used to destroy |

|established, functional families. Simply because we have the means to determine biological parentage |

|with greater certainty does not mean that it is in the best interests of children to do so. For wrongly|

|convicted felons, improved DNA testing has increasingly provided the means by which innocence was |

|finally proved and freedom from incarceration secured. Regularly, newspapers regale readers with |

|stories of prisoners who were wrongly convicted and were proven innocent through advanced scientific |

|testing. Reliance on DNA testing is not relegated to criminal law, however. Many men who have either |

|been adjudicated fathers or who have voluntarily acknowledged their paternal legal status are now |

|challenging those legal determinations because genetic testing subsequently revealed their |

|non-paternity. A grassroots movement is under way to exonerate these innocent fathers from the “bonds |

|of parentage.”2 Likening newly discovered evidence of non-paternity to DNA testing that exonerates a |

|felon, the U.S. Citizens Against Paternity Fraud website includes this motto: “If the Genes don’t fit, |

|you must acquit.™ ”3 |

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|The issue of paternity disestablishment has become a cause célèbre for men who have unsuccessfully |

|petitioned to disestablish their paternity subsequent to genetic testing which disproved their |

|biological fatherhood. Non-biological fathers equate their non-paternity with a wrongful criminal |

|conviction. As authors Anderlik and Rothstein have recently observed, “...those within the fathers’s |

|rights movement...tend to view family law through the lens of criminal law…It is common to find the |

|issue framed as one of justice or fairness, in the sense that evidence admissible to ‘convict’ should |

|also be available to ‘exonerate.’”4 But can (should) family law be equated with criminal law? A wrongly|

|convicted man should be exonerated: he has been the victim of the system. A man who has no biological |

|connection to his child may also feel wrongly adjudicated and tricked by the mother of the child and/or|

|victimized by a federal and state system that forces the mother to name her baby’s father in order to |

|qualify for certain financial benefits. To simply disestablish paternity, however, ignores the crucial |

|difference between the criminal and family law contexts: the presence and best interests of a child. |

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|As our societal understanding of “family” grows, changes and moves away from the traditional, nuclear |

|family, an interesting disconnect has emerged. As Boston Globe columnist Ellen Goodman has observed, |

|these scientific advances force us to ask, “What does make a father? Diapers or DNA?”5 She aptly |

|continues, “...family law seems to be going in two directions at once. We are giving more recognition |

|to non-biological relationships…[a]nd more weight to DNA.”6 In recent years, scholars, judges and |

|legislators have begun to recognize the importance of functional parenthood. For example, several |

|states have permitted non-biological lesbian coparents to maintain visitation and custody petitions |

|because of their intent to parent and their history of parenting. Similarly, other non-biological |

|parents such as stepparents, grandparents, and foster parents have been able to maintain greater access|

|to the children they have helped to raise. Thus, biology is not the sole criterion for determining |

|parent-child relationships. Moreover, it should not be the only criterion for determining such a |

|relationship. As one judge has noted, “A father-child relationship encompasses more (and greater) |

|considerations than a determination of whose genes the child carries. Sociological and psychological |

|components should be considered. The laws governing adoptions have acknowledged that parentage |

|comprises a totality of factors, the least significant of which is genetics.”7 |

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|What determines a parent has been the subject of much scholarship, and many scholars are now embracing |

|nontraditional definitions of parentage and family. |

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|What determines a parent has been the subject of much scholarship, and many scholars are now embracing |

|nontraditional definitions of parentage and family. For example, both the American Law Institute (ALI) |

|and the newest version of the Uniform Parentage Act (UPA) recognize the fact that parental status and |

|legal parenthood may be established without regard to biological connection.8 To fairly balance the |

|competing interests between a legal, yet non-biological father and his child, the father should have a |

|limited time in which to challenge his legal fatherhood; specifically, I propose that a man have no |

|recourse to challenge his paternity after two years from the date on which he begins to function as a |

|parent and hold himself out as a parent to the child. A two-year period in which to challenge legal |

|fatherhood comports with the two-year statute of limitations contained within the UPA to challenge |

|paternity and/or presumptions of paternity. Furthermore, the two-year period further comports with the |

|ALI Principles time frame for establishing a functional relationship with a child, when the |

|relationship begins after the child’s birth. Just as the ALI Principles recognize that it often takes a|

|period of time in which to establish a functional parental relationship, courts should not ignore the |

|time during which a man has fathered his child. Since legal parenthood can be established based on a |

|two-year period, it would be incongruous to disestablish paternity after an even greater length of |

|time. Finally, by using a two-year statute of limitations in which to challenge legal paternity, the |

|rights of a non-biological father are preserved while ensuring that a child is not deprived of a parent|

|after a significant bond has developed between the parties. |

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|The Michigan legislature should redraft its proposed paternity fraud statute so that it strikes a more |

|equitable balance between the rights of a non-biological, legal father and his child. More often than |

|not, diapers make a daddy—not DNA. The proposed Michigan paternity fraud statute should be amended to |

|better reflect the reality of today’s families. |

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|Portions of this article are excerpted from “Using Functional Parenthood to Make the Case Against |

|Paternity Fraud Laws,” a paper that Professor Jacobs presented in Eugene, Oregon, at the International |

|Society of Family Law Conference in June 2003. |

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|Melanie B. Jacobs is an assistant professor of law at Michigan State University-DCL College of Law. She|

|holds a JD from Boston University and an LLM from Temple University. Before coming to MSU-DCL, |

|Professor Jacobs was a Freedman Fellow and lecturer in law at Temple University, a clinical instructor |

|for Harvard Law School’s Hale & Dorr Legal Services Center, and an adjunct instructor at Boston |

|University School of Law. While in Boston, she also practiced with Witmer, Karp, Warner & Thuotte and |

|served as counsel to the Massachusetts Department of Revenue Child Support Enforcement Division. She |

|publishes on family law, is admitted to the Massachusetts Bar, and teaches family law; decedents, |

|estates and trusts; and property. |

|1 Mich. H.B. 4120 (2003). |

|2 See, e.g., U.S. Citizens Against Paternity Fraud, (visited June 10, |

|2003). Carnell Smith, the founder of the organization and website, attempted several times to vacate |

|his paternity judgment and support obligation in the State of Georgia. He became a lobbyist for |

|paternity fraud reform and, after Georgia recently passed its paternity fraud bill, Mr. Smith returned |

|to court and had his child support obligation vacated. Id. |

|3 Id. |

|4 Anderlik, Mary R. & Mark A. Rothstein, DNA-Based Identity Testing and the Future of the Family: A |

|Research Agenda, 28 Am. J.L.M. 215, 220 (2001). |

|5 Ellen Goodman, “What Makes a Father?” Baltimore Sun, May 1, 2001, at 11A. |

|6 Id. |

|7 Hulett v. Hulett, 544 N.E.2d 257, 263 (Brown, J. concurring). |

|8 The ALI Principles include establishment of a legal parent-child relationship without regard to |

|genetic connection in specific circumstances. ALI Principles of the Law of Family Dissolution §2.03 91)|

|(2000). Moreover, the UPA also includes presumptions of legal parenthood that are not predicated on |

|biology. For example, the UPA presumes a man’s legal fatherhood if “for the first two years of the |

|child’s life, he resided in the same household with the child and openly held out the child as his |

|own.” UPA §204 (a)(5), 9B U.L.A. 15 (Supp. 2002). |

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