Whittier Journal of Child & Family Advocacy
Whittier Journal of Child & Family Advocacy
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"EVALUATING THE EFFECTIVENESS OF THE BEST INTERESTS
MARITAL PRESUMPTION OF PATERNITY: IT IS ACTUALLY IN
THE BEST INTEREST OF THE CHILDEREN TO DIVORCE THE
CURRENT APPLICATION OF THE BEST INTERESTS MARITAL
PRESUMTION OF PATERNITY."
Debi McRae [1]
I. INTRODUCTION [2]
In 1987, Lisa and Brian married, and in 1989, they separated. During their
separation, Lisa met David. Although David was clinically depressed, Lisa was very
attracted to him. She coached David to find something in life to be excited about, to
take his depression medication regularly, and to attend his mental health sessions
consistently. After a year of dating, Lisa became pregnant, and she informed David
that she was pregnant by him. However, three months after Lisa gave birth to baby
Shannon, Lisa went back to Brian. Since Lisa and Brian wanted a “fresh new start,”
they both thought it would be best if David “stayed out of Shannon’s life.” As a
result, Lisa and Brian denied David visitation with Shannon.
After an unsuccessful year of fighting with Lisa and Brian about visitation, David filed
a paternity action to establish Shannon’s biological paternity, child support, child
custody, and child visitation. However, since Lisa was married to Brian at the time
she conceived and birthed Shannon, the court conducted a hearing to determine
whether it would be in Shannon’s best interests to “learn” the truth about her
biological paternity. At the conclusion of this hearing, the court held that it would not
be in Shannon’s best interests to learn the truth. As a result, the court held that
Brian was Shannon’s legal father and that David had no fatherhood rights with regard
to Shannon.
This result angered and disappointed David. Therefore, every two years for the next
ten years, David re-filed the paternity action in an attempt to prove that it would be
in Shannon’s best interests to learn the truth about her biological paternity.
However, on the sixth attempt to establish Shannon’s paternity, David requested that
the court appoint a Guardian ad Litem (“G.A.L.”) to represent Shannon’s best
interests. Notwithstanding, after ruling against David again, the court warned him
that any subsequent paternity actions brought by him would likely be considered
frivolous and that he would be sanctioned heavily if he brought another frivolous
paternity action. As a result, at the advice of counsel, David did not bring any
further paternity actions. Unfortunately, after David lost hope of developing a
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relationship with Shannon, he stopped taking his depression medication and going to
his counseling sessions.
A few years later, shortly after Shannon’s thirteenth birthday, Brian left Lisa for
another woman and, this time, filed for divorce. In these divorce proceedings, Lisa
requested child custody and child support. Brian balked at the idea of paying child
support for Shannon. After the court awarded child custody and support to Lisa and
visitation rights to Brian, Brian asked the court: “Why should I have to pay child
support for a child that isn’t mine? You should order David to pay this child support!
I am willing to give up visitation if I don’t have pay child support.” Since the court
did not accept Brian’s “offer,” later that same day, Brian called Shannon to angrily
tell her that he “wasn’t her real dad.” Additionally, Brian never exercised any of his
court awarded visitation with Shannon.
Shannon became emotionally distraught and started asking Lisa about her biological
father, but Lisa refused to discuss David. Soon thereafter, Shannon began calling
Lisa names and exhibiting disturbing behavior, including two attempted suicides.
Lisa finally arranged mental health treatment and counseling for Shannon and
discovered that, like David, Shannon also suffered from clinical depression. During
counseling sessions, Shannon expressed anger at Lisa and her “dead-beat dad.” The
psychotherapist prescribed depression medication for Shannon and suggested that
Lisa begin to slowly introduce David into Shannon’s life.
Lisa decided to follow the psychotherapist’s advice. However, by the time Lisa
contacted David, he was severely depressed, and he angrily and unreasonably
refused to communicate with Lisa. Angry, Lisa brought a paternity action on
Shannon’s behalf against David. But since a G.A.L. represented Shannon’s interests
in the previous proceeding, the court dismissed the action on the grounds of
paternity preclusion (res judicata). In its ruling, the court explained that Shannon,
and those in privity with Shannon, were forever barred from attempting to establish
David as Shannon’s biological father. The court further explained that, as far as the
law was concerned, Brian was Shannon’s legal father.
In the above scenario, the Best Interests Marital Presumption of Paternity (the
“BIMPP”) is responsible for Shannon being deprived of knowing and/or establishing
the identity of her biological father. Although the BIMPP was created to serve the
best interests of children—children like Shannon—it sometimes fails because the
BIMPP can deprive children of their family medical histories, prevent children from
developing healthy psychological identities, and preclude children from establishing
their own paternity and/or encourage unnecessary litigation. As a result,
jurisdictions should evolve the BIMPP into a more effective presumption of paternity.
In this Article, I propose ways that jurisdictions can evolve the BIMPP into a more
effective marital presumption of paternity. In doing so, I will first discuss the
conception, growth, and development of the BIMPP and the policies underlying the
BIMPP. Next, I will discuss the application of the BIMPP and the problems that arise.
Under the BIMPP’s current application, parties are only sometimes allowed an
opportunity to establish the children’s true paternity. Since interested parties are
only sometimes allowed to rebut the BIMPP, it is a semi-conclusive presumption of
paternity. This results in depriving children of their family medical histories,
preventing children from developing healthy psychological identities, and precluding
children from establishing their own paternity and/or encouraging unnecessary
litigation. I will next propose that jurisdictions evolve the BIMPP into a rebuttable
presumption of paternity, which will more freely allow children to determine their
true biological paternities.
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II. ARTICLE SUMMARY
The BIMPP is a modified version of the marital presumption of paternity. [3]
Generally, a true marital presumption of paternity provides that a husband is to be
presumed the biological father of his wife’s children. [4] Once this presumption is
established, however, an interested party [5] is allowed to rebut the presumption. [6]
The BIMPP shares similarities and differences with the marital presumption of
paternity. [7] Like the marital presumption of paternity, it provides a presumption
that a husband is the biological father of his wife’s children. [8] However, unlike a
true marital presumption of paternity, the BIMPP does not automatically allow a party
to rebut this presumption. [9] Instead, the BIMPP allows a party to rebut the
presumption only if it is in the children’s best interests to discover that someone
other than the husband is the children’s biological father. [10]
The BIMPP restricts an interested party’s right to dispute the paternity of a wife’s
children. [11] Although this restriction may seem harsh and irrational by today’s
standards, it is rationally and deeply rooted in common law. [12] Under common
law, courts conclusively prohibited parties from disputing the paternity of a wife’s
children. [13] These courts rationally justified the prohibition for several reasons.
[14]
First, courts were attempting to protect the sanctity of marriage. [15] They
reasoned that if they allowed parties to dispute the paternity of a wife’s children, it
would cause the institution of marriage to deteriorate. [16] Second, common law
litigants did not have scientific proof of paternity; genetic paternity tests did not
exist. [17] Paternity could not be established as a scientific fact, and as a result,
common law courts were unable to determine biological paternity with any degree of
certainty. [18] Since these courts did not have potentially stronger evidence to
overcome allegations of the husband’s non-paternity, it would have caused an
evidentiary impasse to allow such allegations. [19] Therefore, common law courts
also created the marital presumption of paternity to prohibit evidentiary impasses.
[20] Third, common law courts attempted to protect children from being declared
“bastards” and thus, subject to harsh bastardy laws. [21] In other words, common
law courts created the common law marital presumption of paternity to protect
children's best interests. [22] As illustrated above, at common law, courts rationally
employed the virtually conclusive marital presumption of paternity to serve the
paramount interests at that time. [23]
However, as circumstances changed, so did the marital presumption of paternity.
[24] First, although marriage continues to be cherished today, it is no longer as
sacred as it was at common law. [25] Furthermore, the common law presumption
did not achieve its intended result because it failed to effectively preserve marriage.
[26] Accordingly, modern courts began to use the marital presumption of paternity
to protect other laudable interests. [27] Second, modern litigants have genetic
paternity tests at their disposal [28] and courts can determine the children’s paternity
via scientific evidence. [29] Thus, there is no longer a need for courts to avoid an
impasse of evidence. [30] Third, bastardy laws have been abolished for the most
part. [31] Today, the law must treat legitimate and illegitimate children substantially
similar. [32] As such, it is no longer necessary to prohibit parties from rebutting the
presumption of paternity. [33]
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Since the priorities and concerns of common law courts differ from those of modern
courts, so too do the common law and modern presumptions. [34] Three versions of
the modern marital presumption of paternity have resulted: conclusive, rebuttable,
and semi-conclusive. [35] The conclusive presumption of paternity retains the harsh
common law restriction that prohibits a party from challenging the paternity of a
wife’s children. [36] Thus, the common law presumption and the conclusive
presumption are substantially similar. [37] The rebuttable marital presumption of
paternity, a true presumption, allows a party to freely rebut the presumption of
paternity. [38] The semi-conclusive marital presumption allows a party to rebut the
paternity of a wife’s children only under certain circumstances. [39]
The BIMPP is one type [40] of semi-conclusive marital presumption of paternity. [41]
Modern jurisdictions have created the BIMPP since they recognize (1) there is no
longer a need to harshly and routinely deny a party the right to challenge the
children’s paternity and (2) the best interests of the children should always be the
court’s paramount concern. [42]
Although the BIMPP has a laudable origin, as currently applied, it is an ineffective
presumption of paternity for several reasons. [43] Denying a party the right to
establish the children’s biological paternity is rarely in the children’s best interests
since the failure to determine biological paternity may result in (a) the discrimination
of medical treatment, [44] (b) psychological trauma, [45] and (c) paternity preclusion
problems [46] to the children. Therefore, jurisdictions should evolve the BIMPP into a
true presumption; jurisdictions should evolve the BIMPP into a rebuttable
presumption of paternity.
III. VARIOUS MODERN PRESUMPTIONS OF PATERNITY
To fully understand the BIMPP, it is first necessary to understand the marital
presumption of paternity. The marital presumption of paternity assumes that a
woman’s husband is the biological father of her children. [47] For good reason, the
marital presumption of paternity, historically, has been one of the strongest
presumptions known to law. [48] The marital presumption of paternity evolved from
common law. [49] However, a shift in the priorities that existed at common law [50]
not only evolved the common law presumption into the modern presumption of
paternity, but it also caused the presumption to evolve into a variety of versions.
Since each jurisdiction determines its own priorities, each jurisdiction has created its
own version of the modern presumption of paternity. [51] These modern
presumptions may, generally, be categorized as (A) rebuttable, (B) conclusive, and
(C) semi-conclusive. [52]
A. The Rebuttable Marital Presumption of Paternity
The rebuttable marital presumption of paternity is a true presumption [53] since it
allows a party to freely dispute that a husband is the biological father of his wife’s
children. [54] A “presumption” is merely an assumption that a fact exists, based on
the existence of some other fact. [55] Thus, a presumption is the proving of one
fact—the presumed fact—by proving the existence of another fact—the basic
fact.” [56] Said differently, by utilizing a presumption, a party may prove one fact
by proving the existence of another fact. [57] After a party establishes the
presumption, the burden is then supposed to shift to the other litigant to rebut or
disprove the presumed fact. [58] A litigant is allowed an opportunity to rebut the
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presumption since a presumption is merely a tool designed to aid the court to
determine the truth at trial. [59]
Therefore, with regard to the marital presumption of paternity, once a party proves
that the children were conceived and/or born to the husband’s wife during their
marriage—the basic fact—the court will presume that the husband is the children’s
biological father—the presumed fact. [60] After the presumed fact is established,
however, a party will have an opportunity to rebut the presumed fact. In other
words, a party will have an opportunity to rebut the fact that the husband is actually
the children’s biological father. [61] Since the rebuttable marital presumption is a
true presumption, most jurisdictions employ the rebuttable marital presumption of
paternity. [62]
B. The Conclusive Marital Presumption of Paternity
The conclusive marital presumption of paternity absolutely prohibits a party from
disputing that the husband is the biological father of his wife’s children. [63] This
presumption of paternity is not a true presumption. [64] Since a “presumption” is
merely an “assumption” [65] and conclusive means “indisputable,” [66] a conclusive
presumption is an “indisputable assumption,” which is a contradiction of terms. [67]
Thus, a conclusive presumption is an oxymoron. [68]
Likewise, a conclusive marital presumption of paternity is an indisputable
determination that the husband is the biological father of his wife’s children. Since
this “presumption” is irrebuttable, no one can dispute that the husband is the
children’s biological father. As a result, no U.S. jurisdiction currently employs a
conclusive marital presumption of paternity. [69]
C. The Semi-Conclusive Marital Presumption of Paternity
The semi-conclusive marital presumption of paternity will sometimes allow a party to
dispute that the husband is the biological father of his wife’s children. This
presumption is a hybrid of the rebuttable and conclusive marital presumptions of
paternity. Therefore, in some instances, the semi-conclusive marital presumption of
paternity will act as a true presumption of paternity, and in other instances, it will
not. The semi-conclusive marital presumption of paternity will sometimes act as a
true presumption since a party will sometimes be able to rebut the presumption.
However, the semi-conclusive marital presumption of paternity will sometimes act as
a conclusive presumption since sometimes a party will be prohibited from attempting
to rebut the presumption. Said differently, under this presumption, a party will be
allowed an opportunity to rebut the presumption only in certain circumstances.
These circumstances include a party attempting to rebut the presumption within a
specified amount of time [70] and/or if it will be in the children’s best interests to
discover the truth about their biological paternity. [71] The latter semi-conclusive
marital presumption of paternity is the BIMPP.
IV. THE BIMPP
A. Generally
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Although the BIMPP is not a true presumption, [72] multiple jurisdictions employ it.
[73] Again, a true marital presumption of paternity allows a party to dispute that
the husband is the biological father of his wife’s children. [74] Since the BIMPP will
only allow a party to rebut the presumption of paternity only if it will be in the
children’s best interests to do so, [75] the BIMPP is not a true presumption of
paternity. Although the BIMPP is not a true presumption, jurisdictions may rely upon
it, nonetheless, since the BIMPP is deeply rooted in common law. [76]
B. A Historical Perspective: The Conception and Evolution of the
BIMPP
Although the BIMPP may appear novel, it was actually conceived at common law.
[77] Specifically, the BIMPP evolved directly from the common law marital
presumption of paternity. [78] Therefore, to fully address the conception and
evolution of the BIMPP, this section will address the births of (1) the common law
marital presumption of paternity, (2) the modern marital presumption of paternity,
and (3) the BIMPP.
1. The Birth of the Marital Presumption of Paternity: The
Common Law Marital Presumption of Paternity
In the 1700’s, out of necessity, common law courts created the marital presumption
of paternity. [79] At its birth, this presumption was virtually conclusive. [80]
Courts considered this presumption virtually conclusive for several reasons. [81]
First, this presumption could only be rebutted by proving that the husband was
sterile, and/or he did not have access to his wife when she conceived the children
(“non-access”). [82] Second, the only way the husband could prove non-access
was that he was out of the county during his wife’s entire pregnancy. [83] Third,
neither the husband nor wife could testify to access or non-access; [84] initially at
common law, the only admissible evidence that could rebut the presumption of
paternity was third party testimony relating the husband’s sterility and/or the
husband’s absence from the county for his wife’s entire pregnancy. [85] Therefore,
it is likely that the parties rarely had an opportunity to rebut this common law
presumption, and undoubtedly, many husbands were forced to take care of children
who were not their biological children. [86] Although this result may seem unduly
harsh, there were at least three justifiable policies underlying the virtual
conclusiveness of this presumption at that time. [87]
First, common law courts primarily created the conclusive presumption of paternity to
protect children. [88] Specifically, these courts created this presumption to avoid
declaring children illegitimate. [89] The policy against declaring children illegitimate
was so intertwined with the presumption of paternity that, even today, many modern
courts still interchange the terms “the presumption of paternity” and the “the
presumption of legitimacy.” [90]
Common law courts wanted to avoid declaring children illegitimate, because the law
and society treated illegitimate children very differently from legitimate ones. [91]
Indeed, at common law, illegitimate children had no mother or father under the law.
[92] Thus, bastardy laws denied illegitimate children the right to child support and
the right to inherit property from their parents at common law. [93] Since the
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fathers of these illegitimate children were not legally obligated to support these
children, [94] these children usually became wards of the state. [95] Moreover,
when illegitimate children finally obtained the right of support from their parents,
courts arbitrarily awarded illegitimate children less child support than they awarded
to legitimate children. [96]
Not only did the law treat illegitimate children harshly, but society also treated these
children poorly. [97] For example, at common law, illegitimate children were
“stigmatized with shame” and considered “social ishmaelites.” [98] Therefore,
illegitimate children were perceived as social disgraces. [99] Thus, the overall goal
of the common law presumption of paternity, primarily, was to reduce the number of
children who became wards of the state [100] and to protect these same children
from a cruel and unforgiving society. [101] To achieve this goal, common law courts
made the marital presumption of paternity virtually conclusive, which prohibited
anyone from challenging the children’s paternity. [102]
Second, common law courts also created a conclusive presumption to protect the
sacred institution of marriage. [103] These courts “most wisely and properly
[protected] the sanctity of married intercourse [by] permit[ting] it not to be inquired
into any Court of law.” [104] Obviously, if husbands and wives were routinely
allowed, in open court, to assert that the wife had sex with another man during the
marriage, it would have soiled the reputation of marriage and thus, would have
deteriorated the sanctity of marriage. In an attempt to avoid this deterioration,
common law courts made the initial presumption of paternity virtually conclusive.
[105]
Third, common law courts also created the conclusive presumption of paternity in an
attempt to avoid evidentiary impasses. [106] Again, at common law, husbands and
wives were not allowed to testify against each other in paternity actions. [107] As a
result, common law courts primarily relied upon third party testimony to establish the
paternity of the wife’s children. The wife and husband—and thus, common law
courts—had difficulty establishing biological paternity with any degree of certainty.
[108] This resulted in evidentiary impasses since the third party witnesses’
testimonies were likely to cancel each other.
Also, in the 1700’s, scientific paternity tests did not exist. [109] During this era, for
the most part, neither party had sufficiently compelling evidence to overcome third
party witness testimony. [110] This prohibited common law courts from determining
biological paternity confidently, and it is likely that these courts would have made
many mistakes in surmising paternity. [111] Indeed, before the advancement of
scientific technology, one court admitted:
[U]nless identification of the father is otherwise made possible through some tests or means afforded by
advancing medical knowledge, establishment of the fact of intercourse with [two or more men] at or about
the time for conception precludes determination of which man is the father [since doing so] . . . would be a
decision based on pure speculation. [112]
Since the outcome of a paternity proceeding is extremely significant [113] and
conclusive presumptions alleviate the need for trial, [114] common law courts also
created the conclusive presumption of paternity to avoid making mistakes in
attempting to determine the children’s biological paternity. [115]
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Therefore, although the common law presumption of paternity may appear to have a
harsh result, it laudably attempted to serve the prevailing interests that existed at its
conception: protecting the best interests of children, protecting the institution of
marriage, and overcoming evidentiary impasses, which were caused by a lack of
scientific evidence.
2. The Birth of the Modern Marital Presumption of Paternity
The common law presumption of paternity, the precursor to the modern marital
presumption of paternity, usually prohibited anyone from rebutting the presumption
of paternity. However, generally, under the modern presumption of paternity, the
father, mother—and even the children, have a right to rebut the marital presumption
of paternity. [116] Thus, today in many jurisdictions, there is no restriction on an
interested party’s right to rebut the presumption of paternity.
Although the modern presumption of paternity evolved from the common law
presumption of paternity, the policies underlying the modern presumption differ from
those underlying the common law presumption. [117] Again, the primary policies
underlying the common law presumption of paternity included protecting children
from being declared illegitimate, protecting the sanctity of marriage, and preventing
evidentiary impasses caused from a lack of scientific evidence. [118] However, in
modern times, these interests are no longer of paramount concern; [119] and thus,
these interests do not underlie the modern presumption of paternity. Since bastardy
laws have, effectively, been abolished, [120] the concern for the sanctity of marriage
is declining, [121] and the availability of genetic paternity testing has eliminated
evidentiary impasses in paternity actions, [122] the conclusive common law
presumption of paternity has evolved into the modern rebuttable presumption of
paternity.
a) Changes in Bastardy Laws No Longer Require Courts to
Avoid Punishing Illegitimate Children
At common law, in an attempt to discourage fornication, promiscuity, and the
procreation of illegitimate children, many jurisdictions adopted bastardy laws. [123]
As indicated by their names, these laws disfavored and harshly punished illegitimate
children. [124] For example, many common law jurisdictions prohibited illegitimate
children from obtaining (1) child support from their parents, [125] (2) inheritance,
[126] and (3) compensation for the wrongful injury or death to their parents. [127]
Obviously, these laws illogically punished children for their parents’ behavior. [128]
Therefore, common law courts had a very strong incentive to find that the children
were legitimate products of the husband and wife’s marriage. [129] These courts
knew that a finding otherwise would have deprived the children of child support,
inheritance, and other legal remedies that legitimate children were entitled. [130]
Since the conclusive presumption allowed courts to hold that the children were,
unquestionably, the husband’s legitimate children, these courts created the
conclusive marital presumption of paternity to significantly increase the probability of
finding children legitimate. [131]
However, as times changed, societal attitudes also changed with regard to
fornication, promiscuity, and the procreation of illegitimate children. [132] As a
result, the number of illegitimate children increased significantly. [133] Thus, it
became necessary for courts to reevaluate the equity and constitutionality of
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bastardy laws. [134] In this process, the United States Supreme Court struck down
many of these laws as unconstitutional and held that governments did not have valid
interests in treating legitimate and illegitimate children disparately. [135]
Accordingly, today, illegitimate children enjoy many of the rights that legitimate
children enjoy. [136] Since illegitimate and legitimate children are now treated
substantially similar, modern courts no longer need to protect illegitimate children
from harsh bastardy laws; [137] and these courts no longer need a conclusive
presumption of paternity to protect illegitimate children. [138]
b) Protecting the Sanctity of Marriage is No Longer a
Paramount Concern
Again, since marriage and marital harmony was a paramount concern during
common law, English common law courts created the marital presumption of
paternity to “wisely and properly [protect] the sanctity of married intercourse and
[permit] it not to be inquired into in any Court of law.” [139] Thus, under English
common law, another policy underlying the conclusive marital presumption was to
protect the institution of marriage. [140]
However, as times changed, so did societal attitudes toward marriage. [141]
Although, today, marriage is a cherished institution, society no longer considers it
sacred. [142] The common law marital presumption of paternity also failed to
effectively preserve marriage. [143] As a result, courts no longer needed a
conclusive presumption of paternity to protect the sanctity of marriage.
c) Scientific Paternity Testing Alleviates the Need for
Courts to Avoid Evidentiary Impasses.
As time evolved, so did scientific technology. In the early 1900’s, scientists
discovered the blood-grouping test, [144] which lead to the development of the blood
grouping paternity test. [145] A blood-grouping paternity test uses the mother’s,
children’s, and putative father’s blood type to determine whether the putative father could be excluded as a
potential biological father. [146] In other words, a blood-grouping test cannot pinpoint the
children’s paternity, but it can only eliminate the possibility of paternity. [147]
Initially, however, on average, these tests could only eliminate seventeen percent of
the population from paternity. [148] Therefore, blood-grouping tests assisted courts
by only excluding a limited number of putative fathers from the possibility of
paternity. [149]
In the 1940’s, courts began to admit the results of these blood-grouping tests in
paternity actions. [150] Although blood-grouping tests provided courts with partial
relief from the evidentiary impasse dilemma, it did not necessarily solve the court’s
dilemma. For example, if the blood test excluded the possibility that the husband
was the children’s father, the court’s dilemma was resolved with regard to the
husband. However, if the blood test did not exclude the possibility that the husband
was the children’s father, then the court’s dilemma remained. In this scenario, since
paternity remained a possibility, the courts were still reduced to relying on witness
testimony to establish paternity. [151] As can be expected, this reality did not
provide much relief to frustrated courts. [152]
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Fortunately, in the 1980’s, scientists developed the genetic paternity test. [153]
Soon thereafter, courts began to rely upon genetic tests to determine paternity.
[154] Unlike the blood-grouping tests, genetic testing analyzes more than individual blood
types; genetic testing analyzes the DNA found in tissue—be it blood, salvia, or semen. [155] Accordingly,
a genetic paternity test can identify the children’s paternity at a high degree of probability and is highly
reliable. [156] Indeed, genetic testing is so reliable that at least one court has declared that
“the accuracy and infallibility of the DNA test are nothing short of remarkable.” [157]
Therefore, courts today routinely admit genetic test results into evidence to prove or
disprove paternity. [158]
Genetic paternity testing entirely solved the evidentiary impasse dilemma. The result
of a genetic paternity test is significantly compelling evidence of biological paternity
or non-paternity. [159] As a result, genetic tests easily overcame witness
testimony. [160] Now, modern courts no longer must rely on mere conflicting
witness testimony to determine the children’s paternity; [161] modern courts no
longer need a conclusive presumption of paternity to shield them from making
difficult biological paternity determinations. [162]
3. The Evolution of the BIMPP
Undisputedly, the BIMPP, a modern presumption of paternity, is a laudable
presumption. Again, the BIMPP evolved from the common law presumption of
paternity. [163] The primary policy underlying the common law presumption of
paternity was to protect the best interests of children. [164] Specifically, the
common law presumption of paternity protected children from being stripped of their
rights of support, inheritance, and succession by preventing them from being
declared bastards. [165] This common law presumption of paternity planted the
seed that led to the birth and evolution of the BIMPP.
Although many modern jurisdictions recognize that genetic tests alleviate the need to
avoid evidentiary impasses and it is no longer necessary to protect the sanctity of
marriage, BIMPP jurisdictions desire to continue to protect children. In these
jurisdictions, the salient inquiry is whether it will be in the children’s best interests to
learn the truth about their biological paternity.
In determining whether it will be in the children’s best interest to determine their
biological paternity, courts are likely to base their decisions on who the children have
substantial relationships with. [166] Courts are also likely to consider (1) the length
of time the husband has had knowledge of the children’s existence, (2) the length of
time the husband has assumed the role of the children’s father, (3) the
circumstances surrounding the children’s questionable paternity, (4) the children’s
age, (5) the harm to the children if the children learned the truth about their
paternity, and (6) the likelihood that someone else can be established as the
children’s father. [167] However, according to at least one court, courts should not
solely consider which father has the most money in which to support the children.
[168]
Although the BIMPP sounds laudable in theory, this presumption, in its current
application, is flawed since it will always be in the children’s best interests to rebut
the marital presumption of paternity. [169] Therefore, BIMPP jurisdictions should
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evolve the BIMPP into a rebuttable presumption of paternity. It is always in the
children’s best interests to rebut the marital presumption of paternity, because (A) it
will always be in the children’s best interests to know their accurate family medical
history, (B) children who do not know the identity of their biological parents may
suffer psychologically, and (C) paternity preclusion will either (1) irreversibly prohibit
the children from learning the truth about their biological paternity when they mature
and/or their circumstances change or (2) fail to efficiently and fairly provide the
children with a resolution to their paternity disputes.
V. CHALLENGING THE SEMI-CONCLUSIVENESS OF THE BIMPP: IT IS
ALWAYS IN THE CHILDREN’S BEST INTERESTS TO DETERMINE THEIR
TRUE BIOLOGICAL PATERNITY
Again, the BIMPP arose from the common law conclusive presumption of paternity.
[170] However, since it is no longer necessary to avoid evidentiary impasses or to
protect the sanctity of marriage, the BIMPP is semi-conclusive. [171] Although the
BIMPP attempts to achieve the best interests of children, it does not always do so.
[172] When the BIMPP prohibits the children from learning the truth about their
paternity, for the above stated reasons, it fails to achieve the children’s best interests
since it is always in the children’s best interest to rebut the marital presumption of
paternity. [173]
A. It Will Always be in the Children’s Best Interests to Know Their
Family Medical History
I don’t even know my medical history. Everyone else does. For a long time[,] I had
terrible acne and thought it was because I was a bad person. I found out my birth
mother had the same severe problem at age 21 when she had me. How much easier
my high school years would have been if I’d known about the heredity factor. I
thought it was the bad in me coming out. I didn’t need to do that.
Lee H., age 17 [174]
It will always be in the children’s best interests to know their true biological paternity
to enable them to know their entire and accurate family medical history. [175] Many
medical disorders such as heart disease, diabetes, hypertension, sickle cell anemia,
Huntington’s chorea, Alzheimer’s disease, multiple sclerosis, peptic ulcers,
schizophrenia, depression, breast cancer, colon cancer, retinoblastoma, and
Duchenne muscular dystrophy all are genetically linked. [176] Since many of these
disorders may be predicted by examining one’s medical history, a close examination
of the children’s family medical history will predict the children’s present and future
health. [177] A family medical history can determine the children’s present and
future health since many medical disorders have a genetic component. [178] This
genetic component determines whether a person has the propensity to acquire a
medical disorder. [179] Therefore, knowing their medical history will more likely
lead to children detecting these medical disorders early. [180]
Fortunately, since medical disorders also have an environmental factor, the fact that
individuals are genetically pre-disposed to certain disorders does not automatically
mean that they will suffer from these predisposed diseases. [181] Indeed, in some
instances, the individuals’ environments will determine whether they will actually
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suffer from a disorder. [182] Although individuals do not have control over their
genetics, [183] they do have some control over their environment. [184] If people
detect a potential defect early, they may minimize the effect of the disease or
prevent it all together, which will have a significant impact on their health. [185]
Therefore, their lifestyles will determine whether their genetic propensity toward
certain diseases will become a reality. [186]
However, knowing their true genealogy is critical in determining their family medical
history. [187] This is so because children are products of their biological parents,
grandparents, great-grandparents, and other distant relatives. [188] Only an
accurate and detailed family medical history will adequately ensure that the children
have an adequate opportunity to detect the disorders that they are genetically
predisposed to suffer from. [189] Thus, obviously, to construct an accurate family
medical history, one should start by interviewing one’s biological parents. [190]
If children are prohibited from determining their true biological paternity, they will be
deprived of access to their true and accurate family medical history. [191] As such,
these children will also be deprived of an opportunity to detect genetic disorders
early. [192] Therefore, they will be more likely to suffer from these genetic
disorders than those children who know their biological paternity. [193] These
children are deprived of their family medical history and are discriminated against.
[194] Therefore, children’s ignorance of their true and accurate family medical
history is not in the children’s best interests. [195]
B. Psychologically, It is Not in the Children’s Best Interests to be
Ignorant About their True Biological Paternity [196]
My . . . parents are my parents and always will be. I’ve spent my life with them[,]
and I love them. I just hope they understand I need a part of my birth parents too.
I still may be the same person, but I’ll feel more like I belong to the human race. I’ll
feel complete.
Emily P., age 15 [197]
Under the BIMPP, courts greatly emphasize the nurturing of the children. [198] This
may have occurred, since at one time, psychologists believed that nurturing the
children was more important to the children than biology. [199] However, it is now
known that although nurturing is important to the children, their biological identity is
equally important. [200]
Biology is extremely important to children. For example, even if infants have never
been in contact with a biological parent, if they are deprived of a knowing that
biological parent or having a relationship with that parent, they will eventually grieve
that parent’s loss. [201] This grieving process usually cannot begin until after the
children reach the age of six. [202]
Unfortunately, during this grieving process, some children will become intensely
angry, argumentative, oppositional, and exhibit disruptive and disturbing behaviors.
[203] Sometimes these symptoms are so severe that some of these children are
likely to be referred to psychotherapists. [204] However, until these children are
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able to at least identify their biological parent(s), they will not be able to complete
the grieving process; and thus, they will continue to exhibit the above symptoms.
[205] Moreover, if the children are stuck in this grieving process, it may prevent
them from having positive relationships with their non-biological parent. [206]
Obviously, this strained relationship between the children and non-biological parent
may potentially cause a tremendous strain on the entire family.
Children who do not know the identity of their biological parents may also experience
“genealogical bewilderment.” [207] Genealogical bewilderment is the feeling of
being deprived of one’s heritage, religious background, culture, and/or race. [208]
Genealogical bewilderment can obviously overwhelm children. [209]
Naturally, children who suffer from genealogical bewilderment will likely question
their biological pasts. [210] If children are not told the truth about their biological
history, they will be unable to construct their own biological identities. [211] On the
other hand, if these children are provided honest answers about their biological
history, they can use this information to build their self-identities. [212] Thus, if
children merely discover information about their birth parents, it could provide these
children with enormous emotional and psychological relief. [213] As a result, all
children should be provided information about their birth parents to enable them to
develop their self-identities. [214]
Although these children suffer tremendously, many people, albeit unintentionally, are
not empathetic to their suffering. This may be because those who have not lost a
biological parent will never understand the children’s pain of losing that parent. [215]
Therefore, it may be difficult for many people to understand and/or accept that the
children who have never met a birth parent will grieve that parent’s loss. [216]
Many of these critics may argue that these children’s loss is no different from a loss
that children may suffer as a result of losing a biological parent through death or
divorce. However, this is simply untrue. In this particular scenario, it is assumed
that the children who lost a parent through divorce or death, at some point, knew the
identity of that parent. Therefore, these children will be more likely to complete the
grieving process and move on with their lives. [217] However, the children who do
not know the identity of their biological parent may never know the identity of that
parent. This is potentially a deeper loss since the children will continue to fantasize
about finding their living, biological parent. [218] As a result, it will be difficult for
these children to complete the grieving process since they do not know whom they
are grieving about. [219]
C. Since Children Generally have a Right to Establish Their Own
Paternity, the Operation of Paternity Preclusion in BIMPP
Jurisdictions will Either Usurp the Children’s Statutory Right to
Later Establish Their Own Paternity or Encourage Unnecessary Relitigation
“Sometimes[,] I feel life cheated me by taking something that belonged to me. I feel
like I want to get back by taking from other people.”
Brian B., age 15 [220]
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The BIMPP, as currently applied, is also ineffective since the operation of paternity
preclusion [221] will either deny the children of their statutory right to later establish
their own paternity and/or encourage unnecessary and unwarranted re-litigation.
However, to understand the operation of paternity preclusion in BIMPP jurisdictions,
it is first necessary to define paternity preclusion and the policies underlying this
legal doctrine.
1. Defining Paternity Preclusion
Paternity preclusion is a specialized sub-doctrine of the preclusion doctrine. The
doctrine of preclusion [222] will prohibit a party from re-litigating a matter that has—
or already should have been—properly determined by a court. [223] Thus, the
purpose of preclusion is to end litigation by preventing a party, or a party’s privy,
who had one fair trial on a matter, from unnecessarily re-litigating the matter a
second time. [224] However, in order for preclusion to prevent a subsequent
lawsuit, (1) the prior lawsuit must have resulted in a final judgment on the merits;
(2) the court in the prior lawsuit must have had jurisdiction to make the final
determination; (3) the prior lawsuit must have been fully contested in good faith; (4)
both lawsuits must have involved the same issues or causes of action; and (5) both
lawsuits must have involved the same parties or their privies. [225]
The doctrine of paternity preclusion, under certain circumstances, prevents parties,
and their privies, in a prior lawsuit—where the parties litigated or should have
litigated the issue of paternity—from re-litigating the children’s paternity. These
prior lawsuits may include a paternity action, a divorce proceeding, and/or an action
brought by a governmental agency to collect child support or to recover
reimbursement for public benefits. [226]
2. The Policies Underlying Paternity Preclusion
There are at least four primary policies underlying preclusion. [227] First, paternity preclusion preserves
the integrity of the court system. [228] The purpose of the court system is to provide a final resolution to
the parties’ dispute. [229] However, if the parties were repeatedly able to re-litigate the same facts and
issues, a final judgment would become illusionary, and courts would fail to provide litigants with a final
resolution to their disputes. [230] Second, preclusion reduces the possibility of inconsistent judgments.
[231] Since preclusion reduces the number of judgments related to a specific occurrence, it reduces the
chances of courts issuing conflicting judgments.
Third, preclusion seeks to prohibit harassing, embarrassing, expensive, and vexing re-litigation. [232]
Preclusion reduces this type of re-litigation since, after litigation, many losing parties often have a desire of
re-litigating the matter in an attempt to achieve “the right result” and/or to make the other party “pay.”
Fourth, preclusion assists overburdened courts. [233] Preclusion reduces the number of potential cases
on courts’ dockets by prohibiting unnecessary and unwarranted re-litigation. [234] Therefore,
paternity preclusion (1) provides parties with a final resolution to a paternity dispute,
(2) reduces the chance of inconsistent paternity judgments, (3) reduces harassing
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paternity re-litigation, and (4) reduces the burden on overcrowded family courts.
3. The Operation of Paternity Preclusion
A party’s inability to freely rebut the marital presumption of paternity causes
paternity preclusion problems. Again, paternity preclusion will bar the children from
bringing a subsequent paternity action where (1) a court of competent jurisdiction
rendered the prior judgment, (2) the court rendered the prior judgment on its merits,
(3) the same claim and/or issue is present in both lawsuits, and (4) the parties to
both lawsuits are substantially identical. [235] When attempting to determine
whether paternity preclusion will bar the children from bringing subsequent paternity
actions against the putative father, the salient issue usually becomes whether the
children were an actual parties in the first action or in privity with a party in the first
action. [236]
Problems with paternity preclusion arise since although, in many jurisdictions,
children have a right to establish their own paternity, [237] once a court fails to
determine the children’s paternity, the children may be forever precluded from
learning the truth about their paternity. [238] Additionally, even if paternity
preclusion will not prohibit the children from later establishing their paternity, courts
will run the risk of (1) failing to provide the parties with a final resolution of the
paternity dispute, (2) rendering inconsistent paternity judgments, (3) presiding over
harassing paternity litigation, and (4) managing more congested family law court
dockets. [239]
Generally, jurisdictions are split as to whether a parent and the children are privies;
[240] and thus, jurisdictions are split as to whether the children will be precluded
from bringing subsequent paternity actions to determine their paternity. [241]
BIMPP jurisdictions are also split as to whether the children can bring subsequent
actions to determine their paternity. [242] However, in BIMPP jurisdictions, it is
problematic whether the children will be precluded or not from bringing subsequent
paternity actions. For example, the BIMPP jurisdictions that prohibit children from
bringing subsequent paternity actions deprive courts of the flexibility to determine
the children’s best interests as the children mature and/or as the children’s
circumstances change. Alternatively, the BIMPP jurisdictions that allow children to
bring subsequent actions will fail to provide the children with finality to the paternity
dispute, consistent paternity judgments, and protection from harassing litigation.
These BIMPP jurisdictions are also more likely to have congested domestic relations
dockets and thus, are not as likely to resolve paternity disputes timely.
(a) BIMPP Jurisdictions that Prohibit Children from Bringing
Subsequent Paternity Actions Will Fail to Achieve the
Children’s Best Interests
“I get very angry when I think my personal information is out there somewhere[,]
and I can’t get my hands on it. It belongs to me. It tells me who I am. I need that
information.”
Jason T., age 16 [243]
Many BIMPP jurisdictions hold that the doctrine of paternity preclusion prohibits
children from bringing subsequent paternity actions against their putative father.
[244] Further, although many jurisdictions have yet to expressly prohibit children
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from bringing subsequent paternity actions, many of these jurisdictions have
indicated that, given the right circumstances, they will likely do so in the future.
[245] In some of these jurisdictions, courts have admitted that had the court
appointed a G.A.L. in the first action to represent the children’s interests, paternity
preclusion would have barred the children from bringing a subsequent action. [246]
Although BIMPP jurisdictions are split on whether paternity preclusion will bar
children from bringing subsequent paternity actions, a majority of jurisdictions have
or will likely deny children of the right to bring subsequent actions to determine their
paternity. [247]
In these BIMPP jurisdictions, once a court determines that it will not be in the
children’s best interests to learn the truth about their paternity, the BIMPP becomes
conclusive. [248] Once the BIMPP becomes conclusive, the children, and the
children’s privities, will be precluded from bringing any subsequent paternity actions.
[249] In these jurisdictions, the children, and/or the children’s representative, will
only have one opportunity to convince a court that it will be in the children’s best
interests to learn the truth about their biological paternity. Allowing the children only
one bite of the proverbial apple is the wrong result for several reasons.
First, this result defeats the very purpose of the BIMPP: to allow courts the flexibility
to achieve a result that is in the children’s best interests. Prohibiting the children
from bringing a subsequent paternity action is not in the children’s best interests for
several reasons. In BIMPP jurisdictions, children are more likely to be precluded
from bringing subsequent paternity actions. For example, in many BIMPP
jurisdictions, courts are required to appoint a G.A.L. to represent the children’s best
interests. [250] Unfortunately, many courts hold that the appearance of a G.A.L.
makes the children a party to the first action; and thus, the children will be precluded
from bringing subsequent paternity actions. [251]
This is an inequitable result. When a paternity action is brought, many of these
children are too young to assist a G.A.L. in their own representation. If these
children are too young to participate in their own representation, it is inherently
unfair to force them to “take credit” for that same representation under the paternity
preclusion doctrine. Therefore, in BIMPP jurisdictions, many children, who are now
competent enough to participate in the paternity proceedings, will be unfairly
precluded from bringing a subsequent paternity action.
Second, at the very least, for medical and psychological reasons, it is not in the
children’s best interests to indefinitely prohibit them from determining their biological
paternity. [252] As times change, so will the children’s circumstances. Therefore,
the best interest standard demands flexibility. For instance, a court may determine
that it is not necessary for healthy infants to “learn” the truth about their paternity.
This court may reason that since these infants “only know the marital father,” it is in
their best interests to maintain status quo and stability. However, when these
infants evolve into rebellious teenagers who question their paternity and have
medical and/or emotional problems, it becomes more obvious that it is actually in the
children’s best interests to learn the truth about their paternity. Unfortunately, if
these children, and those in privity with these children, are precluded from relitigating
the children’s paternity, the fact that it is now in the children’s best
interests to learn the truth about their biological paternity is irrelevant—and
detrimental—on many levels—to the children. In other words, in these BIMPP
jurisdictions, paternity preclusion may deny the children access to information
relating to their biological paternity when the children may need this information the
most.
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Third, many jurisdictions grant children the right to establish their own paternity.
[253] Additionally, many of these jurisdictions allow children to establish their
paternity even after they reach the age of majority. [254] However, if a G.A.L.
“represents” the children in the prior action, the children will be, effectively, deprived
of their statutory right when the children are mature enough to participate in the
legal proceedings. [255] Such a result is unfair, because the G.A.L. may have
represented the children when they were too young to assist the court in determining
what was, or will later be, in their best interests.
(b) BIMPP Jurisdictions Allowing Children to Bring
Subsequent Paternity Actions May Fail to Provide
Children with an Efficient and Fair Resolution to Their
Paternity Dispute
On the other hand, some BIMPP jurisdictions have held that, despite the paternity
preclusion doctrine, children can bring subsequent paternity actions. [256] These
jurisdictions have justified allowing children to bring subsequent paternity actions for
the same reason it adopted the BIMPP: to achieve the best interests of the children.
[257] Generally, these BIMPP jurisdictions hold that there is a need for new
paternity determinations, because it will be in the children’s best interests to do so.
[258] These courts reason that the application the children’s best interests standard
requires flexibility [259] and will allow the children multiple opportunities to convince
a court that it will, now, be in their best interests to learn the truth about their
biological paternity. [260] However, before it allows the parties to re-litigate the
children’s paternity, the court must determine whether there is a sufficient change in
circumstances to establish that it would now be in the children’s best interests to
learn the truth about their biological paternity. [261]
In these BIMPP jurisdictions, there is a possibility for a multiplicity of paternity
lawsuits. In these multiple lawsuits, the salient issue will be whether it is in the
children’s best interests to allow a party an opportunity to rebut the marital
presumption of paternity. This ability to repeatedly re-litigate this issue is
problematic for several reasons.
First, until a party is allowed to rebut the presumption of paternity, the parties will
not receive a final resolution to the paternity dispute. [262] All of the parties to the
paternity dispute, potentially including the children, will live with the thought that the
children’s paternity is unresolved and uncertain. This is not in the children’s best
interests, because the children will be unable to determine their true self-identities,
[263] and this may cause the children emotional turmoil. [264] Additionally,
although the marital father may hold the children out to be his biological children, his
suspicion or knowledge may otherwise manifest in treating the children differently
from his other biological children. [265] This may also cause turmoil within the
family unit. [266]
Second, parties to paternity disputes will have an opportunity to bring subsequent
harassing, embarrassing, expensive, and vexing litigation. [267] Thus, all parties
involved may be required to expend more time ad money to prove or defend against
the same issues presented in the prior paternity actions. [268] Third, the court will
have an opportunity to render inconsistent paternity judgments. Fourth, if parties
are allowed to routinely re-litigate paternity cases, courts in BIMPP jurisdictions will
more likely have congested court dockets in domestic relations divisions. [269] This
will result in additional delays in determining children’s paternity.
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Fifth, since children will also have the right to re-litigate the issue of paternity after
they reach the age of majority, [270] BIMPP jurisdictions may experience difficulty
applying the “best interests of the children standard” in some paternity actions. [271]
Adult children complicate the use of the best interests of the children standard,
because many children have a right to determine their paternity after they reach the
age of majority. [272] Although adult “children” are no longer considered “children”
once they reach the age of majority, the statute of limitations for children to
determine their paternity usually runs after they reach the age of majority. [273]
Therefore, in BIMPP jurisdictions, children will have the option of re-litigating their
paternity once they reach the age of majority. This creates a problem since the
“children” in these paternity actions will no longer be “children.” Instead, the
“children” will be adults. It is questionable whether the best interests of the children
standard will be the appropriate standard to determine whether adult-children should
learn the truth about their biological paternity. [274] As a result, courts in BIMPP
jurisdictions will be forced to create additional rules and standards in a continued
attempt to apply common law theories to modern day situations. [275]
VI. THE SOLUTION: EVOLVING THE BIMPP INTO A REBUTTABLE
PRESUMPITON OF PATERNITY
“I feel I was a helpless pawn as a baby. People who didn’t even know me made
decisions for me. How did they know what was best for me?”
Marie S., age 12 [276]
It will always be in the children’s best interests to determine their biological
paternity. It is always in the children’s best interests, medically and psychologically,
to know the identity of their biological father. Additionally, whether children are able
to bring multiple subsequent paternity actions or not, paternity preclusion will not
achieve the children’s best interests. If children are deprived of bringing multiple
paternity actions, the court may be deprived of making a ruling in the children’s best
interests when the children mature, when the children are competent enough to
participate in the legal proceedings, and/or as the children’s circumstances change.
On the other hand, if the children are able to bring multiple paternity actions, the
children’s paternity may remain unresolved, may ultimately result in harassing
litigation, may result in inconsistent court rulings, and may result in substantial
delays in resolving paternity disputes.
Therefore, BIMPP jurisdictions should evolve the BIMPP into a true rebuttable
presumption of paternity. In other words, courts in BIMPP jurisdictions should
always allow parties to dispute the children’s biological paternity. To make the
BIMPP rebuttable, jurisdictions should allow multiple, rebuttable paternity
presumptions to arise. For example, in a paternity action, under a rebuttable BIMPP,
a court should, at a minimum, allow parties to establish the following rebuttable
presumptions of paternity: the marital presumption of paternity, the biological
presumption of paternity, and the functional presumption of paternity. [277] In this
lawsuit, the children’s mother should be required to identify all potential marital
fathers, biological fathers, and functional fathers. Next, all alleged marital fathers
should have an opportunity to establish that they were married to the children’s
mother at the children’s conception and/or birth. Then, all alleged biological fathers
should have an opportunity to establish biological ties with the children through
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genetic paternity testing. All alleged functional fathers should have an opportunity to
establish that they have assisted substantially in raising the children.
Then, the court should allow the parties an opportunity to rebut each of these
presumptions. Next, based on the established presumed facts, the court should then
use the children’s best interests standard to determine which presumed father [278]
should be the children’s legal father. In other words, courts should use the children’s
best interest standard to determine the children’s relationship with each of their
presumed fathers—but only after the parties have had an opportunity to establish
each presumption, and each party has had an opportunity to rebut each
presumption.
Consider the following example. Assume that children are born to a married woman.
The woman’s husband would become the children’s presumed marital father from the
operation of the marital presumption of paternity. Additionally, all men who had sex
with the woman during the time of the children’s conception would become presumed
biological fathers from the operation of the presumption of biological paternity.
Furthermore, all men who raised the children would become presumed functional
fathers from the operation of the presumed functional presumption of paternity.
However, at a best interests hearing, all parties would have an opportunity to rebut
each of the above presumptions. Once all of the parties have had an opportunity to
establish and rebut each of these presumptions, the court should then determine
which of the above-presumed fathers should become the children’s legal father(s).
Under this mechanism, the children’s best interests will be served. At the conclusion
of the paternity action, the children will know the identity of their biological father.
Information on the identity of the father will allow them to construct a more accurate
family medical history and to develop more healthy self-identities. Additionally, once
the court determines the children’s biological paternity, the children will not have a
reason to bring subsequent paternity actions in an attempt to determine their
biological paternity. As a result, paternity preclusion will not deprive the children of
(a) ever knowing the identity of their biological father, (b) their statutory right to
establish their biological paternity, (c) finality to the paternity dispute, and (d) more
timely resolution to paternity disputes.
Critics may argue that the children’s knowledge of the identities of all of their
presumed fathers and/or the ensuing battle between all of the presumed fathers may
be traumatic for the children. Although it is true that the children may suffer some
emotional distress with this knowledge, the trauma experienced by the children, if
any, is no different from the “trauma” that many modern children experience. For
example, many modern children have two or more fathers as a result of divorce, cohabitation,
and re-marriage. [279] Obviously, only one of these men can be the
children’s biological father. The remainder of these fathers will be either marital
fathers and/or functional fathers. Many modern children have knowledge that they
have multiple fathers. Indeed, these relationships may actually be beneficial since
children benefit when they have a relationship with both their custodial fathers and
non-custodial fathers. [280] Furthermore, children who have two or more fathers as
a result of divorce, co-habitation, and re-marriage are also likely to witness disputes
between these fathers. If children can adjust to stepfathers, adoptive fathers, live-in
fathers, intermittent fathers, and absent fathers, these children can also adjust to
having a biological father and a legal father. [281] Therefore, the BIMPP will not
cause children socially unacceptable levels of trauma.
Additionally, critics may argue that the above-described paternity action may
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excessively intrude into the mothers’ and putative fathers’ privacy; and therefore,
mothers and putative fathers may use these proceedings to abuse each other.
However, this type of paternity litigation does allow any more abuse than any other
type of litigation. If a party brings a frivolous claim, the other parties to the litigation
can bring a claim against that party for frivolous litigation. Moreover, the concern
should not be about what is in the parents’ best interests—the concern should be the
children’s best interests.
VII. CONCLUSION
Although the BIMPP attempts to achieve the best interests of the children, as
currently applied, it fails to always do so. The BIMPP fails to achieve the best
interests of children because it may potentially deprive children from learning the
identity of their biological father. This is contrary to the best interests of children for
several reasons.
First, the failure to identify the children’s biological father will deprive the children of
learning their true medical family histories. If these children do not accurately know
their family medical histories, they could be less likely to avoid devastating and
debilitating diseases. Second, psychologically, it will be in the children’s best
interests to learn the truth about their biological paternity. If children are deprived
of knowing the identity of their biological fathers, they will be more likely to suffer
from emotional and behavioral problems and be unable to develop their own healthy
self-identities.
Third, under the BIMPP, when children are deprived of learning the identity of their
biological fathers, sometimes, these children will be able to determine their paternity
at a later date, and sometimes, they will be forever barred from determining their
biological paternity. Either way, the children’s best interests will not be served. If
children are prohibited from bringing a subsequent action, the courts will lose the
flexibility to achieve the children’s best interests as the children mature and/or their
circumstances change. However, if the court allows parties to bring subsequent
paternity actions, the parties may never receive a final, efficient, and fair resolution
to the paternity dispute.
Therefore, the BIMPP should be evolved into a true rebuttable presumption of
paternity. Under this rebuttable presumption, jurisdictions should allow multiple
presumptions of paternity to arise. After all presumptions are proved or disproved,
then courts should determine, based on the children’s best interests, which father(s)
should be the children’s legal father(s).
[1] J.D., University of Florida, College of Law; Instructor of Law,
University of Florida Agricultural & Mechanical University, College of
Law.
[2] Note that the scenario in this introduction is fictional.
[3] Compare infra nn. 41-71 and accompanying text (discussing the modern marital
presumption of paternity) with nn. 72 -76 and accompanying text (discussing,
generally, the BIMPP).
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[4] See infra nn. 53 -61 and accompanying text (explaining that a true presumption
of paternity is merely a presumption that may be rebutted).
[5] In many jurisdictions, interested parties include the husband, wife, and children.
See e.g. Minn. Stat. § 257.57 (2004); N.Y. Dom. Rel. Law § 522 (McKinney 2004);
Wis. Stat. § 767.45 (2004); Spada v. Pauley, 385 N.W.2d 746, 748 (Mich. App.
1986).
[6] See infra nn. 60 -62 and accompanying text (explaining that under a true
presumption, a party will have an opportunity to rebut the presumption).
[7] Compare infra n. 8 and accompanying text (identifying the similarity between the
BIMPP and the rebuttable marital presumption of paternity) with infra nn. 9 -10 and
accompanying text (identifying the differences between the BIMPP and the rebuttable
marital presumption of paternity).
[8] Compare infra n. 54 and accompanying text (explaining that under a true
presumption of paternity, the parties may rebut that the husband is the children’s
biological father) with infra n. 75 and accompanying text (explaining that under the
BIMPP, the parties may potentially rebut that the husband is the children’s biological
father).
[9] Compare infra n. 54 and accompanying text (explaining that under a true
presumption of paternity, the parties may rebut that the husband is the children’s
biological father) with infra n. 75 and accompanying text (explaining that under the
BIMPP, the parties may only rebut that the husband is the children’s biological father
in a certain circumstance).
[10] See infra n. 75 and accompanying text (explaining that under the BIMPP, the
parties may only rebut that the husband is the children’s biological father if it is in
the children’s best interests to do so).
[11] See id.
[12] See infra nn. 88 -102 and accompanying text (explaining that at common law,
courts severely restricted a party’s ability to rebut the presumption of paternity to
protect children’s legal and societal interests).
[13] Id.
[14] See e.g. infra nn. 88 -115 and accompanying text (identifying at least three
reasons why common law courts made the common law marital presumption of
paternity virtually conclusive).
[15] See infra nn. 103 -105 and accompanying text (explaining that one reason
common law courts made the marital presumption of paternity virtually conclusive
was to protect the institution of marriage).
[16] Id.
[17] See infra n. 109 and accompanying text (explaining that in the 1700’s, genetic
paternity tests were non-existent).
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[18] See infra n. 111 and accompanying text (espousing that since, at that time, no
one could determine biological paternity as a scientific fact, common law courts
would have likely made many mistakes in attempting to determine children’s
biological paternity).
[19] See infra nn. 109 -115 and accompanying text (explaining that the lack of
scientific evidence at common law caused evidentiary impasses).
[20] Id.
[21] See infra nn. 88 -102 and accompanying text (explaining that at common law,
courts severely restricted a party’s ability to rebut the marital presumption of
paternity to protect children from being declared bastards).
[22] See id.
[23] See supra nn. 13 -22 and accompanying text (identifying at least three reasons
why common law courts made the marital presumption of paternity virtually
conclusive).
[24] See infra nn. 117 -122 and accompanying text (explaining why, as times
changed, the marital presumption of paternity evolved); compare e.g. Sanders v.
Yancy, 122 So. 2d 202, 204 (Fla. 2d Dist. App. 1960) (applying the common law
presumption of paternity to protect the sanctity of marriage) with Sacks v. Sacks,
267 So. 2d 73, 75 (Fla. 1972) (applying the BIMPP to protect the children’s best
interests); compare also e.g. Eldridge v. Eldridge, 16 So. 2d 163, 163-164 (Fla.
1944) (applying a virtually conclusive marital presumption of paternity) with H.R.S.
v. Privette, 617 So. 2d 305, 308 (Fla. 1993) (applying the BIMPP, a semi-conclusive
presumption of paternity).
[25] See infra nn. 141 -142 and accompanying text (explaining that since common
law, societal attitudes changed with regard to the institution of marriage).
[26] Compare infra nn. 103 -105 and accompanying text (explaining that one reason
common law courts made the marital presumption of paternity virtually conclusive
was to protect the sanctity of marriage) with infra nn. 141 -142 and accompanying
text (alluding that since common law, the sanctity of marriage has declined
significantly).
[27] See infra nn. 123 -162 and accompanying text (explaining why the common law
policies underlying the common law marital presumption do not underlie the BIMPP);
compare e.g. Sanders, 122 So. 2d at 204 (applying the common law presumption of
paternity to protect the sanctity of marriage) with Sacks, 267 So. 2d at 75 (applying
the BIMPP to protect the children’s best interests).
[28] See infra nn. 153 -158 and accompanying text (explaining that since the 1980’s,
highly reliable genetic paternity testing became available).
[29] Id.
[30] See infra nn. 159 -162 and accompanying text (explaining that scientific
paternity testing now relieves courts from routinely choosing the husband as the
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children’s biological father).
[31] See infra nn.132 -135 and accompanying text (acknowledging that the United
States Supreme Court struck down many of the bastardy laws as unconstitutional).
[32] See infra n. 136 and accompanying text (explaining that now legitimate and
illegitimate children must be treated similarly).
[33] Compare infra nn. 88 -108 and accompanying text (explaining why it was once
necessary for courts to make the presumption of paternity virtually conclusive) with
infra nn. 123 -162 and accompanying text (explaining why, today, it is no longer
necessary for courts to employ a conclusive marital presumption of paternity).
[34] Id.
[35] See infra nn. 53 -71 and accompanying text (discussing that the three modern
presumptions of paternity are rebuttable, conclusive, and semi-conclusive).
[36] Compare infra nn. 80 -85 and accompanying text (discussing the virtual
conclusiveness of the common law presumption of paternity) with infra nn. 63 -69
and accompanying text (discussing the conclusiveness of the conclusive marital
presumption of paternity).
[37] See id.
[38] See infra nn. 53 -61 and accompanying text (asserting that the rebuttable
presumption of paternity is the only true presumption of paternity).
[39] See infra nn. 70 -71 and accompanying text (identifying the circumstances in
which a party can rebut a semi-conclusive presumption of paternity).
[40] The other type of semi-conclusive presumption is the Temporal Marital
Presumption of Paternity. This marital presumption allows an interested party to
rebut the presumption that the husband is the biological father of his wife’s children
only if the party attempts to rebut this presumption within a specified amount of
time. See infra n. 70 ; see also e.g. David V.R. v. Wanda J.D., 907 P.2d 1025, 1027
(Okla. 1995) (explaining that a putative father must attempt to rebut the marital
presumption of paternity within the children’s first two years of life).
[41] Cf. Deborah A. Ellingboe, Sex, Lies, and Genetic Tests: Challenging the Marital
Presumption of Paternity Under the Minnesota Parentage Act, 78 Minn. L. Rev. 1013,
1023 (1994) (explaining that courts will allow a party to rebut the “Child’s-Best-
Interests Test” only if it is in the child’s best interests to do so).
[42] See infra nn. 123 -162 and accompanying text (explaining why it is no longer
necessary to employ a conclusive presumption of paternity) with infra n. 164 and
accompanying text (explaining that the children’s best interests are the paramount
goal of the BIMPP).
[43] See generally infra nn. 170 -275 and accompanying text (discussing the various
reasons why the BIMPP, as currently applied, is ineffective).
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[44] See infra nn. 174 -195 and accompanying text (declaring that the failure to
identify the children’s true biological parent will deprive the children of their accurate
family medical history and thus, the children will receive disparate medical
treatment).
[45] See infra nn. 196 -219 and accompanying text (opining that since
the failure to identify the children’s true biological parent will likely
cause the children to mourn the loss of their biological parent and to
suffer from genealogical bewilderment, the children will be more likely
to suffer psychologically).
[46] See infra nn. 220 -275 and accompanying text (explaining that in BIMPP
jurisdictions, paternity preclusion will work against the children’s best interests).
[47] Traci Dallas, Student Author, Rebutting the Marital Presumption: A
Developed Relationship Test, 88 Colum. L. Rev. 369, 371 (1988).
[48] Eldridge, 16 So. 2d at 163; Godin v. Godin, 725 A.2d 904, 909 (Vt. 1998);
Brenda J. Runner, Protecting a Husband’s Parental Rights When His Wife Disputes the
Presumption of Legitimacy, 28 J. Fam. L. 115, 115 (1989-1990) (“One of the
strongest presumptions in law is that the child born to a married women is the
legitimate child of her husband.”).
[49] Compare infra nn. 79 -87 and accompanying text (discussing the
common law marital presumption of presumption) with infra nn. 53 -71
and accompanying text (discussing the modern presumptions of
paternity).
[50] For a discussion of these shifts in priorities, see text accompanying
infra notes 123 -162 (explaining that over time, courts no longer
attempted to (a) punish bastard children, (b) protect the sanctity of
marriage, and (c) determine children’s biological paternities without the
assistance of technology).
[51] Cf. infra nn. 53 -71 and accompanying text (discussing the various types of
modern presumptions of paternity).
[52] Id.
[53] Compare infra nn. 54 -59 and accompanying text (demonstrating that a true
presumption is rebuttable) with infra nn. 60 -61 and accompanying text (explaining
that the rebuttable marital presumption of paternity is rebuttable).
[54] N.A.H. v. S.L.S., 9 P.3d 354, 361 (Colo. 2000) (explaining that a presumption of
paternity only creates a prima facie case, which may be rebutted by contrary
evidence).
[55] Black’s Law Dictionary 1223 (Bryan A. Garner ed., 8th ed., West 2004).
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[56] Joel S. Hjelmaas, Stepping Back from the Thicket: A Proposal for the Treatment
of Rebuttable Presumptions and Inferences, 42 Drake L. Rev. 427, 430-431 (1993).
[57] Id.
[58] N.A.H., 9 P.3d at 361 (citing and quoting Am. Ins. Co. v. Naylor, 70 P.2d 349,
351 (Colo. 1937) (“Presumptions generally do not conclusively resolve an issue, but
create a prima facie case, which ‘[i]s always subject to be[ing] overcome by evidence
to the contrary.’ ”). Instead, the purpose of a presumption is to aid the trier of fact
in ascertaining the truth at trial. N.A.H., 9 P.3d at 361 (citing Denver Publg. Co. v.
City of Aurora, 896 P.2d 306, 318 (Colo. 1995)); G. Michael Fenner, Presumptions:
350 Years of Confusion and it has Come to This, 25 Creighton L. Rev. 383, 383
(1992).
[59] Id. (citing Denver Publg. Co., 896 P.2d at 319) (“[A] presumption is a rule of
convenience based on experience or public policy.”).
[60] Compare supra nn. 55 -59 and accompanying text (demonstrating how true
presumptions operate) with Ellingboe, supra n. 41 , at 1014 (defining the marital
presumption of paternity as the assumption that the husband is the biological father
of his wife’s children).
[61] N.A.H., 9 P.3d at 361.
[62] See Runner, supra n. 48 , at 115 (explaining that the presumption of paternity is
rebuttable in most jurisdictions); Dallas, supra n. 47 , at 369 (explaining the same);
see also e.g. Ala. Code § 26-17-5 (2003); Ariz. Rev. Stat. § 25-814 (2004); Colo.
Rev. Stat. § 19-4-105 (2004); Del. Code Ann. tit. 13 § 804 (2004); Ga. Code Ann. §
19-7-20 (2004); Mont. Code Ann. § 40-6-105 (2003); Neb. Rev. Stat. § 42-377
(2003); S.D. Codified Laws § 25-5-1 (2004); Tex. Fam. Code Ann. § 160.204
(2004); Smith v. Smith, 845 P.2d 1090, 1092 (Alaska 1993); Schaffer v. Schaffer,
445 A.2d 589, 590 (Conn. 1982); In re Estate of Willis, 574 N.E.2d 172, 177 (Ill.
App. 1st Dist. 1991); In re Estate of Long, 804 N.E.2d 1176, 1180-1181 (Ind. App.
2004); In re Marriage of Hopkins, 453 N.W.2d 232, 234 (Iowa App. 1990); Buzzell v.
Buzzell, 235 A.2d 828, 832 (Me. 1967); C.C. v. A.B., 550 N.E.2d 365, 370 (Mass.
1990); Rafferty v. Perkins, 757 So. 2d 992, 995 (Miss. 2000); L.C.F. v. D.H.F., 333
S.W.2d 320, 326 (Mo. App. 1960); J.W.P. v. W.W., 604 A.2d 695, 697 (N.J. Super.
Ch. Div. 1990); Walker v. Covington, 731 N.Y.S.2d 485, 487 (N.Y. App. Div. 2d Dept.
2001); Kohler v. Bleem, 654 A.2d 569, 572 (Pa. Super. 1995); Tindle v. Gay, 891
S.W.2d 617, 619 (Tenn. App. 1994); Masters v. Worsley, 777 P.2d 499, 501 (Utah
App. 1989).
[63] See Michael H. v. Gerald D., 491 U.S. 110, 119-120 (1989)
(explaining that a conclusive presumption of paternity is not a
presumption—but actually a rule of substantive law).
[64] Id.; Leo H. Whinery, Presumptions and Their Effect, 54 Okla. L.
Rev. 553, 555 (1999).
[65] Black’s Law Dictionary, supra n. 55, at 1223.
[66] Id.
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[67] Hjelmaas, supra n. 56 , at 430.
[68] Id.; see also John M. Phillips, Student Author, Irrebuttable Presumptions: An
Illusory Analysis, 27 Stan. L. Rev. 449, 451 (1975) (asserting that conclusive
presumptions also violate due process).
[69] Note that although it is popularly believed that California employs a conclusive
presumption of paternity, it actually does not. Instead, California employs the
Temporal Marital Presumption of Paternity, which is a semi-conclusive presumption of
paternity. See Cal. Fam. Code Ann. § 7541 (West 2004) (providing that the husband
may attempt to rebut the presumption within two years of the child’s birth); Michael
H., 491 U.S. at 113 (1989) (acknowledging that under Cal. Evid. Code section 621,
the presumption of paternity could be rebutted—but only in limited circumstances).
[70] See e.g. La. Civ. Code Ann. art. 189 (2004) (providing that the presumption of
paternity may only be rebutted one year after the husband learned of the child’s
birth); Okla. Stat. tit. 10, § 3 (1998) (providing that if the presumption of paternity is
not disputed within two years of the child’s birth, the presumption of paternity
becomes conclusive).
[71] See e.g. R.N. v. J.M., 61 S.W.3d 149, 154 (Ark. 2001); Privette, 617 So. 2d at
308; Baker v. Baker, 582 S.E.2d 102, 104 (Ga. 2003); In re Marriage of Ross, 783
P.2d 331, 338 (Kan. 1989); Turner v. Whisted, 607 A.2d 935, 940 (Md. 1992); In re
Welfare of C.M.G., 516 N.W.2d 555, 560 (Minn. App. 1994); M.F. v. N.H., 599 A.2d
1297, 1300 (N.J. Super. App. Div. 1991); Tedford v. Gregory, 959 P.2d 540, 546
(N.M. App. 1998); McDaniels v. Carlson, 738 P.2d 254, 261 (Wash. 1987); In re
Paternity of C.A.S., 468 N.W.2d 719, 726 (Wis. 1991).
[72] Compare supra nn. 55 -59 and accompanying text (demonstrating that a true
presumption of paternity is rebuttable) with infra n. 75 and accompanying text
(explaining that the BIMPP may only be rebutted in a certain circumstance).
[73] See supra n. 71.
[74] Cf. Fenner, supra n. 58 , at 383 (explaining that a true presumption is
rebuttable); N.A.H., 9 P.3d at 361 (explaining that a presumption is not conclusive).
[75] See Ellingboe, supra n. 41 , at 1023 (explaining that courts will only allow a
biological father an opportunity to rebut the marital presumption of paternity when it
is in the children’s best interests to do so); Godin, 725 A.2d at 910 (holding that
unless there is clear and convincing evidence that it would be in the children’s best
interests to rebut the presumption of paternity, the presumption becomes
conclusive).
[76] See supra n. 73 (identifying the jurisdictions employing the BIMPP); see also
infra nn. 88 -101 and accompanying text (explaining that one of the reasons common
law courts created the marital presumption of paternity was to protect children’s legal
and social interests).
[77] See infra nn. 88 -102 and accompanying text (explaining that one reason courts
created the common law marital presumption of paternity was primarily to protect
children’s best interests).
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[78] See Sacks, 267 So. 2d at 76 (acknowledging that common law courts created
the common law marital presumption of paternity to protect the best interests of
children).
[79] See Michael H., 491 U.S. at 124.
[80] Id.; Eldridge,16 So. 2d at 163-164; Runner, supra n. 48 , at 115; Raymond T.
Elligett, Jr., Paternity Suits, Blood Tests, and the Law, Fla. B.J. 715, 715 (Dec. 1983).
[81] See infra nn. 82 -86 and accompanying text (explaining why the common law
marital presumption of paternity was considered virtually conclusive).
[82] Michael H., 491 U.S. at 124.
[83] Godin, 725 A.2d at 909 (“The presumption of parentage originated in the
common law, which established that ‘a child born of a married woman was
conclusively presumed to be legitimate unless her husband was not within the four
seas which bounded the kingdom.’ ”) (citation omitted).
[84] Michael H., 491 U.S. at 124-125; see also Runner, supra n. 48 , at 115.
[85] Runner, supra n. 48, at 115 (explaining that neither the husband nor wife could
testify that the husband did not have an opportunity to impregnate his wife); Godin,
725 A.2d at 909 (explaining that one way to rebut the common law marital
presumption of paternity was to prove the husband’s non-access to his wife).
[86] Elligett, Jr., supra n. 80 , at 715 (explaining even if it was naturally impossible
for a husband to be the children’s biological father, courts routinely and conclusively
declared the husband to be the biological father of his wife’s children and criticizing
the common law, conclusive presumption of paternity for requiring a parent to
financially support non-biological children).
[87] See infra nn. 91 -115 and accompanying text (discussing three policies
underlying the common law marital presumption of paternity); see also Dept. Health
& Rehab. Servs. v. West, 378 So. 2d 1220, 1224 (Fla. 1979) (acknowledging that
past problems with paternity proof caused previous courts to create arbitrary
paternity rules—like conclusive presumptions); Gammon v. Cobb, 335 So. 2d 261,
265 (Fla. 1976) (explaining that the purpose of the common law presumption of
paternity was to protect the best interests of the children); Sacks, 267 So. 2d at 76
(explaining the same).
[88] Michael H., 491 U.S. at 125 (citing Michael Grossberg, Governing the Hearth:
Law and Family in Nineteenth-Century America 201 (U. of N.C. Press 1985)) (“The
primary policy rationale underlying the common law’s severe restrictions on rebuttal
of the presumption appears to have been an aversion to declaring children
illegitimate . . . thereby depriving them of rights of inheritance and succession . . .
and likely making them wards of the state.”); Gammon, 335 So. 2d at 265
(explaining that the purpose of the common law presumption of paternity was to
protect the best interests of the children); Sanders, 122 So. 2d at 204 (“In 1777[,]
Lord Mansfield stated that the [marital presumption of paternity], founded in
decency, morality, and policy, is that the declarations of the father or the mother
cannot be admitted to bastardize the issue born after marriage.”).
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[89] Sanders, 122 So. 2d at 205.
[90] See e.g. Michael H., 491 U.S. at 124-126 (referring to “the marital presumption
of paternity” as “the presumption of legitimacy”); Privette, 617 So. 2d at 307
(referring to “the marital presumption of paternity” as “the presumption of
legitimacy”); In re Trust Created by Agreement Dated Dec. 20, 1961, 765 A.2d 746,
752 (N.J. 2001) (using the phrases “presumption of paternity” and “presumption of
legitimacy” interchangeably); see also Daniel v. Daniel, 695 So. 2d 1253, 1254 (Fla.
1997) (declaring that the presumption of paternity and the presumption of legitimacy
are separate issues); Worsley, 777 P.2d at 501 (explaining that legitimacy addresses
whether the children were conceived or born in wedlock, while paternity is a question
of biological fatherhood); Chris W. Altenbernd, Quasi-Marital Children: The Common
Law’s Failure in Privette and Daniel Calls For Statutory Reform, 26 Fla. St. U. L. Rev.
219, 254 (1999) (explaining that courts have traditionally confused “paternity” with
“legitimacy”).
[91] See In re Trust Created Dec. 20, 1961, 765 A.2d at 752 (“The common-law
presumption of legitimacy sought to avoid the effects of the doctrine of nullius filius
(the children of nobody), an ancient tenet that essentially treated an illegitimate child
as a non-person in the eyes of the law.”) (emphasis in original).
[92] James Schouler, A Treatise on the Law of the Domestic Relations: Embracing
Husband & Wife, Parent and Child, Guardian and Ward, Infancy, and Master and
Servant 379 (Little, Brown & Company 1874) (explaining that, at common law, an
illegitimate children were the children of no one); Michelle Holtzman Garbis, The
Florida Bastardy Act—A Law in Need of Change, 24 U. Miami L. Rev. 713, 715 (1970)
(“Under English common law, neither the father nor the mother were under a duty to
support their children.”).
[93] Garbis, supra n. 92, at 715; Michael H., 491 U.S. at 125.
[94] See Garbis, supra n. 92 , at 715 (asserting that the common law did not obligate
either the father or mother to support their illegitimate children); Altenbernd, supra
n. 90 , at 237.
[95] Michael H., 491 U.S. at 125 (“The primary policy rationale underlying the
common law’s severe restrictions on rebuttal of the presumption appears to have
been an aversion to declaring children illegitimate . . . thereby . . . likely making
them wards of the state.”); Altenbernd, supra n. 90 , at 237.
[96] Garbis, supra n. 92 , at 719.
[97] Id.; Mary Kay Kisthardt, Of Fatherhood, Families and Fantasy: The Legacy of
Michael H. v. Gerald D., 65 Tul. L. Rev. 585, 588 (1991).
[98] Weber v. Aetna Cas. & Surety Co., 406 U.S. 164, 175 (1972) (acknowledging
that society brutally stigmatized illegitimate children); Schouler, supra n. 92 , at 388.
[99] Id.
[100] Altenbernd, supra n. 90 , at 236.
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[101] Gayle Wintjen, Make Room for Daddy: A Putative Father’s Rights to His
Children, 24 New Eng. L. Rev. 1059, 1063 (1990).
[102] Kisthardt, supra n. 97 , at 588.
[103] Michael H., 491 U.S. at 125; Wintjen, supra n. 101 , at 1063-1064.
[104] Sanders, 122 So. 2d at 204 (citing Rex v. Reading, (1734) Cast Temp Hard 79,
82, 95 Eng. Reprint 49) (emphasis added).
[105] See Michael H., 491 U.S. at 126 (explaining that the common law’s secondary
concern in creating the conclusive marital presumption of paternity was to protect
the marital family).
[106] See Eldridge, 16 So. 2d at 163-164.
[107] Michael H., 491 U.S. at 125-126.
[108] Kisthardt, supra n. 97 , at 594 (explaining that the common law marital
presumption of paternity originated when biological paternity was difficult to
establish); see also Weber, 406 U.S. at 175 (acknowledging the past problems with
proving children’s biological paternity); West, 378 So. 2d at 1224 (acknowledging the
problems with biological paternity proof); Pace v. State, 648 So. 2d 1302, 1310 (La.
1995) (O’Connor, J., concurring) (admitting that courts traditionally struggled to
determine biological paternity); Bachelor v. Boyd, 423 S.E.2d 810, 813 (N.C. App.
1992) (explaining that prior to blood grouping and DNA paternity testing, the
presumption of paternity was conclusive, but after these paternity tests became
available, the presumption of paternity became rebuttable); Alexander v. Alexander,
537 N.E.2d 1310, 1311 (Ohio Misc. 2d 1989) (“After taking judicial notice of the
accuracy of the DNA test, the court recognizes that the problems of proof inherent to
an action in which paternity is alleged should no longer deprive an illegitimate child
of proving his paternity.”).
Indeed, prior to the use of blood grouping and genetic paternity tests, the
resolution of paternity had plagued mankind for centuries. Therefore, for centuries,
mankind had used various primitive paternity tests in an attempt to determine a
child’s paternity. For example, in the twelfth century, the Japanese pricked the
child’s finger and a drop of blood was allowed to drop on the skeleton of the
deceased and alleged father. If the blood soaked into the skeletal bones, the child
was declared the father’s biological child. Yvette Hilderson & Michael R. Henry,
Paternity Establishment 9 (2d ed., Nov. 1985). In yet another test, the alleged
father’s and child’s fingers were pricked over a basin. In this paternity test, if the
parties’ blood merged, they were considered to be biologically related. Id.
[109] See Altenbernd, supra n. 90 , at 233.
[110] Id. at 236.
[111] Sunny J. Jansma, Presumption of Paternity—Denying a Biological Father
Standing to Establish his Paternity of a Child Who has a Presumed Father, 25 St.
Mary’s L.J. 821, 830 n. 32 (1994); Harry D. Krause, Illegitimacy: Law and Social
Policy 123 (Bobbs Merrill 1971); see also Yarmark v. Strickland, 193 So. 2d 212,
213-214, 215 (Fla. App. 3d Dist. 1966) (refusing to submit the issue of a child’s
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paternity to the jury when a woman had sex with two or more men during the time
of conception, since the trier of fact could only speculate as to which man was the
child’s biological father).
[112] Yarmark, 193 So. 2d at 215.
[113] N.A.H., 9 P.3d at 359.
[114] Id. at 362.
[115] See Michael H., 491 U.S. at 140 (Brennan, J., dissenting) (“[T]he original
reasons for the conclusive presumption of paternity are out of place in a world in
which blood tests can prove virtually beyond a shadow of a doubt who sired a
particular child . . . .”); West, 378 So. 2d at 1225 (admitting that since it was difficult
to prove paternity, the courts’ prior decisions drew arbitrary lines with regard to the
presumption of paternity in an attempt to facilitate this problem); Altenbernd, supra
n. 90 , at 237 (explaining that the conclusive, common law presumption allowed
courts to ignore biology).
[116] See generally George L. Blum, Right of Illegitimate Child to Maintain Action to
Determine Paternity, 86 A.L.R.5th 637 (2001) (demonstrating that in many states,
children have a right to determine their own paternity).
[117] Compare nn. 88 -115 and accompanying text (discussing the policies
underlying the common law marital presumption of paternity) with infra nn. 123 -162
and accompanying text (discussing why the policies underlying the common law
presumption of paternity are not policies underlying the modern marital presumption
of paternity).
[118] See generally supra nn. 88 -115 and accompanying text (explaining that the
three primary policies underlying the common law marital presumption of paternity
were to (a) protect children from being declared illegitimate, (b) protect the sanctity
of marriage, and (c) prevent evidentiary impasses caused from a lack of scientific
evidence).
[119] See infra nn. 123 -162 and accompanying text (explaining why protecting
children from being declared illegitimate, protecting the sanctity of marriage, and
preventing evidentiary impasses caused from a lack of scientific evidence are no
longer of great concern).
[120] See infra nn. 123 -138 and accompanying text (explaining that
changes in bastardy laws no longer require courts to avoid punishing
illegitimate children).
[121] See infra nn. 139 -143 and accompanying text (explaining that
protecting the sanctity of marriage is no longer a paramount concern).
[122] See infra nn. 144 -162 and accompanying text (explaining that
scientific paternity testing alleviates the need to avoid evidentiary
impasses).
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[123] Garbis, supra n. 92 , at 715 (explaining that bastardy laws evolved from
common law and they attempted to punish and deter promiscuous behavior).
[124] Id. at 714.
[125] Schouler, supra n. 92 , at 379 (explaining that at common law, illegitimate
children were the children of no one); see supra nn. 92 -94 and accompanying text
(explaining that neither parent was obligated to care for his or her illegitimate
children); see also supra nn. 91 -92 (explaining that since illegitimate children were
the children of no one, the state usually became obligated to care for them).
[126] See e.g. Trimble v. Gordon, 430 U.S. 762, 776 (1977) (striking down an
intestacy statute that treated illegitimate children differently from legitimate
children).
[127] See e.g. Weber, 406 U.S. at 175 (declaring a statute denying illegitimate
children from receiving worker’s compensation benefits unconstitutional); Levy v.
Louisiana, 391 U.S. 68, 72 (1968) (holding that a statute that denied an illegitimate
child the right to recover for the wrongful death of his mother violated equal
protection); Hilderson, supra n. 108 , at 2 (“Traditional forms of discrimination
included rights to support, inheritance, custody, name, as well as to claims under
father-related welfare statutes, such as workmen’s compensation, wrongful death,
and various State and Federal acts.”).
[128] Weber, 406 U.S. at 175.
The status of illegitimacy has expressed through the ages society's
condemnation of irresponsible liaisons beyond the bonds of marriage.
But visiting this condemnation on the head of an infant is illogical and
unjust. Moreover, imposing disabilities on the illegitimate child is
contrary to the basic concept of our system that legal burdens should
bear some relationship to individual responsibility or wrongdoing.
Obviously, no child is responsible for his birth and penalizing the
illegitimate child is an ineffectual as well as an unjust way of deterring
the parent.
Id.
[129] Cf. supra nn. 125 -128 and accompanying text (explaining that had courts
declared someone other than the husband as the children’s biological father, the
court would have simultaneously denied the children of child support, inheritance,
and compensation for the wrongful injury or death to their parent); compare Michael
H., 491 U.S. at 125 (citing Grossberg, supra n. 88) (“The primary policy rationale
underlying the common law’s severe restrictions on rebuttal of the presumption
appears to have been an aversion to declaring children illegitimate . . . .”) with supra
nn. 125 -128 and accompanying text (explaining that had courts declared someone
other than the husband as the children’s biological father, the court would have
simultaneously denied the children of child support, inheritance, and compensation
for the wrongful injury or death to their parent).
[130] Cf. supra nn. 125-128 and accompanying text.
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[131] Id.
[132] Gammon, 335 So. 2d at 265 (acknowledging that, as of 1967, promiscuity had
become more acceptable than it was at common law, attitudes about illegitimate
children had also changed, and thus, the number of illegitimate children had
increased significantly); Kisthardt, supra n. 97 , at 593 (explaining that the large
number of illegitimate births has decreased the social stigma of illegitimate children);
Hilderson, supra n. 108 , at 3 (admitting that social attitudes toward illegitimate
children have changed dramatically).
[133] Gammon, 335 So. 2d at 265 (demonstrating that the number of illegitimate
children born in the U.S. had increased dramatically over the past four decades);
Kisthardt, supra n. 97 , at 593 (explaining that the large number of illegitimate births
has decreased the social stigma of illegitimate children).
[134] See e.g. Weber, 406 U.S. at 175 (declaring a statute denying illegitimate
children from receiving worker’s compensation benefits unconstitutional); Gammon,
335 So. 2d at 265 (evaluating the effectiveness and the constitutionality of Florida’s
bastardy laws).
[135] See e.g. N.J. Welfare Rights Org. v. Cahill, 411 U.S. 619, 621 (1973); Weber,
406 U.S. at 176; Homer H. Clark, Jr., The Law of Domestic Relations in the United
States 171 (2d ed., West 1988) (“Ten years of Supreme Court litigation have
undeniably eliminated many of the legal disabilities formerly afflicting the illegitimate
child.”).
[136] Michael H., 491 U.S. at 125 (acknowledging that, over time, bastardy have
become less harsh); Hilderson, supra n. 108 , at 3 (explaining that now illegitimate
children and legitimate children, for the most part, are treated equally).
[137] Cf. Hilderson, supra n. 108, at 3.
[138] C.C., 550 N.E.2d at 370 (“In view of the gradual betterment of the illegitimate
child's legal position, which weakens the purpose behind the presumption, coupled
with the corresponding recognition of the interests of unwed putative fathers, we
think that there is no longer any need for a [conclusive] presumption of
legitimacy.”); Hilderson, supra n. 108 , at 3 (admitting that as bastardy laws became
less harsh, courts began to allow parties to more freely rebut the presumption of
paternity).
[139] Sanders, 122 So. 2d at 204.
[140] See id.
[141] Gammon, 335 So. 2d at 265 (“[T]he fabric of our society related to the
institution of marriage has been sorely rent and promiscuity has been the result.”).
[142] David M. Brodzinsky et al., Children's Adjustment to Adoption: Developmental
and Clinical Issues 1 (Sage Publications, 1998) (opining that the “traditional family”—
a family with children living in an intact family with two biological parents—has lost
its meaning); Harry D. Krause & David D. Meyer, What Family for the 21st Century?,
50 Am. J. Comp. L. 101, 103 (2002) (declaring that although marriage was once an
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institution of great public interest, it is no longer as important).
[143] Dallas, supra n. 47 , at 371.
[144] Gaia Bernstein, The Socio-Legal Acceptance of New Technologies: A Close Look
at Artificial Insemination, 77 Wash. L. Rev. 1035, 1081 n. 174 (2002) (explaining
that, in 1900, Karl Landsteiner discovered the blood grouping test). A blood type is
determined by identifying the ABO antigens that are found in an individual’s blood. Plemel v. Walter, 735
P.2d 1209, 1212 (Or. 1987) (en banc). The possible ABO antigens are: A, B, and O. Id. No person
possesses all of these antigens. Id. Instead, each person has only two antigens in their blood. Id. The
child’s mother supplies one of these antigens, and the father supplies the other antigen. Cf. id. The
combination of these two antigens determines the child’s blood type. See id. For example, a child who
receives an A antigen from one parent and an A antigen from her other parent will have an AA blood type.
However, a child who receives an A antigen from one parent and an O antigen from another parent will
have an AO blood type. Id. Likewise, the same rules apply to parents giving their child two B antigens
(BB blood type) or a B antigen and an O antigen (BO blood type) respectively. However, if one parent
gives a child an A antigen and another parent gives the child a B antigen, then the child will have an AB
blood type. Id. Additionally, if both parents give the child an O antigen, then the child’s blood type would
be OO. Id.
[145] A blood grouping paternity test operates as follows:
Once a scientist determines the children’s blood type, the scientist can also
predict the possible blood types of the children’s parents. For example, children with AA
blood types must have had two parents who were able to give them an A antigen. Thus, if
the children’s putative father was unable to contribute an A antigen, then he will be
excluded from being the children’s biological father. Thus, all males with BB, BO, and
OO blood would be excluded from paternity. Likewise, children with AB blood must
have had one parent give them an A antigen and a parent giving them a B antigen. Thus,
initially, in this scenario, only all males with OO blood could be excluded from paternity.
However, in both scenarios, even more males could be excluded from biological
paternity. More of the male population could be excluded from paternity if the scientist
also identifies the mother’s blood type. For example, assume that the children have AB
blood types. If the mother has an AA blood type, she must have given the child an A
antigen and the male must have given the children a B antigen. Thus, in this scenario, not
only males with OO blood types would be excluded, but males with AA and AO blood
types would also be excluded.
For a more detailed discussion of blood grouping paternity testing, see generally E.G.
Reisner & T.A. Bolk, A Laymen’s Guide to the use of Blood Group Analysis in Paternity Testing,
20 Louisville J. Fam. L. 657 (1981-1982).
[146] Bernstein, supra n. 144 , at 1080; see also supra n. 142.
[147] Altenbernd, supra n. 90 , at 233.
[148] Plemel, 735 P.2d at 1213. Note that as time progressed and as blood grouping tests became more
sophisticated, a higher percentage of putative fathers could be excluded from paternity. Id.
[149] Altenbernd, supra n. 90 , at 233.
[150] E. Donald Shapiro et al., The DNA Paternity Test: Legislating the Future
Paternity Action, 7 J.L. & Health 1, 20 (1992-1993) (“[I]t was not until the 1940s
that the blood group testing was accepted as accurate and evidentially competent.”).
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[151] Yarmark, 193 So. 2d at 215 (declaring that where the court is forced to rely on
only witness testimony to determine a child’s paternity and it is established that the
women had intercourse with more than one man during the time of conception, the
court was precluded from speculating which man was the child’s biological father);
Pauline Quirion et al., Trial and Evidentiary Issues in Proving Paternity, PLPI MA-CLE
8-1 § 8.1 (2002) (“In earlier times, when paternity testing was not available or did
not eliminate a man as a child's possible father, the court determined paternity of a
child based primarily on testimony of the parties related to sexual relations at the
probable time of conception and circumstantial evidence, such as the child's
resemblance to the putative father.”). Note, however, that at least at this time, the
wife and husband could testify to access and non-access. See C.C., 550 N.E.2d at
371 ( “[A] wife and a husband are no longer incompetent, by operation of Lord
Mansfield's Rule, to testify as to non-access or impotence during the time relevant to
conception.”).
[152] See e.g. supra n. 112 and accompanying text.
[153] Theresa Glennon, Somebody’s Child: Evaluating the Erosion of the Marital
Presumption of Paternity, 102 W. Va. L. Rev. 547, 555-556 (2000).
[154] Altenbernd, supra n. 90 , at 233.
[155] Randi B. Weiss et al., The Use of Genetic Testing in the Courtroom, 34 Wake
Forest L. Rev. 889, 905 (1999). In genetic testing, the DNA in an individual’s blood,
hair, semen, or other body medium is analyzed to determine that individual’s unique
genetic profile. Id. This process is sometimes referred to as DNA fingerprinting. Id.
[156] Christopher L. Blakesley, Scientific Testing and Proof of Paternity: Some
Controversy and Key Issues for Family Law Counsel, 57 La. L. Rev. 379, 379 (1997);
see also In re J.M., 590 So. 2d 565, 567 (La. 1991); but see Jonathan J. Koehler,
Error and Exaggeration in the Presentation of DNA Evidence at Trial, 34 Jurimetrics
21, 23, (1993) (declaring that although DNA tests are highly accurate, they are not
infallible).
[157] Blakesley, supra n. 156, at 379.
[158] See Weiss, supra n. 155 , at 889-890.
[159] See Hilderson, supra n. 108 , at 9 (exclaiming that scientific paternity testing
can now prove the innocence of a falsely accused father ninety-nine percent of the
time and therefore, these paternity tests are conclusive); see also supra n. 156 .
[160] See Hilderson, supra n. 108 , at 9 (declaring that today, as a
result of genetic paternity testing, paternity trials are no longer witness
credibility tests); see also D.F. v. Dept. of Rev. re L.F., 823 So. 2d 97,
101 (Fla. 2002) (explaining that after genetic paternity testing
developed, an interested party could possibly overcome the
presumption of paternity).
[161] Altenbernd, supra n. 90 , at 237 (“The judiciary can no longer consistently
select marital fathers as legal fathers, now that the presumption of legitimacy can be
regularly overcome by scientific testing.”); Kisthardt, supra n. 97 , at 594 (explaining
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that modern paternity tests have eliminated the need for other types of evidence in
paternity actions). Notwithstanding, some modern courts continue to apply common
law theories in paternity actions, and they have encountered difficulty doing so when
confronted with genetic evidence. Altenbernd, supra n. 90 , at 252; see also e.g.
Daniel, 695 So. 2d at 1254 (bifurcating the presumption of legitimacy and the
presumption of paternity in an attempt to reconcile its decision with the common law
marital presumption of paternity); In re Welfare of C.M.G., 516 N.W.2d at 560
(explaining that under Minnesota law, a genetic test identifying a man as the child’s
biological father only creates a conflicting presumption of paternity with the marital
presumption of paternity).
[162] D.F., 823 So. 2d at 110 (“[W]ith the shift to an urban society, the increase in
the number of divorces, and the advent of genetic testing, both the courts and the
Legislature must examine the viability of common law doctrines.”); Hilderson, supra
n. 108 , at 9-10 (declaring that modern scientific paternity testing has alleviated the
guesswork involved in determining the children’s biological paternity and that
scientific paternity testing has evolved paternity proceedings from credibility contests
to conclusive, fact-oriented proceedings); Glennon, supra n. 153 , at 555 (“The
protection of children born out of wedlock was hampered by the lack of accurate
tests to prove paternity.”); see also Kisthardt, supra n. 97 , at 590 (declaring that
the common law marital presumption of paternity is ill-equipped to handle modern
day situations).
[163] Compare supra nn. 88 -101 and accompanying text (explaining
that a primary policy under the common law marital presumption of
paternity was to protect children’s best interests—by routinely
declaring children legitimate) with supra n. 75 and accompanying text
(asserting that jurisdictions created the BIMPP to protect children’s
best interests).
[164] See supra nn. 88 -101 and accompanying text (explaining that a
primary policy under the common law marital presumption of paternity
was to protect children’s best interests—by routinely declaring children
legitimate); Patricia J. Riesenburger, Paternity: Status of the Law in
Florida, 62 Fla. B.J. 61 (Nov. 1988) (opining that the marital
presumption of paternity admirably attempted to protect minor
children).
[165] Riesenburger, supra n. 164, at 61.
[166] C.C., 550 N.E.2d at 372 (“[T]he existence or nonexistence of a substantial
relationship between the putative father and the child is relevant in evaluating . . .
the best interest of the child . . . .”); McDaniels, 738 P.2d at 262 (“In determining whether it is in
the child's best interests to allow a paternity action by one outside the present family, the trial court should
consider the stability of the present home environment, the existence or lack thereof of an ongoing family
unit, the extent to which uncertainty of parentage already exists in the child's mind, and any other factors
which may be relevant in assessing the potential benefit or detriment to the child.”).
Additionally, other jurisdictions consider whether learning the truth about
their paternity will cause the children (a) emotional harm, (b) feelings of distrust, (c)
confusion and other mental injury, (d) physical harm, (e) a loss in familial stability,
(f) social stigma, (g) a lost in the continuity of established relationships, (h) certainty
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in their alleged paternity, and (i) uncertainty about their family and genetic
backgrounds. D.O. v. R.B., 722 A.2d 136, 139 (N.J. Super. 1997).
[167] See e.g. Unif. Parentage Act § 608.
[168] Daniel, 695 So. 2d at 1254.
[169] Compare supra nn. 163 -168 and accompanying text (explaining
that the BIMPP attempts to protect the best interests of children) with
infra nn. 174 -275 and accompanying text (explaining why it will
always be in the children’s best interests to rebut the BIMPP).
[170] Compare supra nn. 88 -102 and accompanying text (explaining
that a primary policy under the common law presumption of paternity
was to protect children’s best interests—by conclusively declaring
children legitimate) with supra n. 75 and accompanying text (asserting
that jurisdictions created the BIMPP to protect the children’s best
interests).
[171] Compare supra nn. 139 -162 and accompanying text (explaining
why it is no longer necessary for courts to avoid evidentiary impasses
or to protect the sanctity of marriage) with supra n. 71 and
accompanying text (explaining that the BIMPP is a semi-conclusive
presumption of paternity).
[172] See infra nn. 174 -275 and accompanying text (explaining why it
will always be in the children’s best interests to rebut the semiconclusive
BIMPP).
[173] See id.
[174] Barbara Taylor Blomquist, Insight Into Adoption: What Adoptive Parents Need
to Know About the Fundamental Differences Between a Biological and an Adopted
Child—and its Effect on Parenting 12 (Charles C. Thomas ed., 2001) (acknowledging
the feelings of a child who initially was deprived of knowing his biological parents).
[175] Hilderson, supra n. 108 , at 2 (explaining that if the children do
not know their biological father, this father cannot warn them that they
are susceptible to a particular medical disorder).
[176] Carol Daus, Past Imperfect: How Tracing Your Family Medical History Can Save
Your Life 12 (Santa Monica Press, 1999).
[177] Id.
[178] Id. at 7; see also Brodzinsky, supra n. 142 , at 11 (“There can be no question
at this time that heredity plays a major role in the development and manifestation of
many psychological and behavioral traits, including various forms of
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psychopathology.”). Thus, unfortunately, many of the tragic diseases are inherited
from biological parents, grandparents, great-grandparents, and distant relatives.
Daus, supra n. 176 , at 7.
[179] Daus, supra n. 176 , at 7.
[180] Id.
[181] See id.
[182] Id.
[183] Id.
[184] Id.
[185] Id. at 12.
[186] Id. For example, if diabetes runs in the children’s family, they can prevent or
minimize the onset of diabetes by improving their diet and exercising. Id. at 9.
[187] Id. at 11; Valerie Seal Meiners, Student Author, The Child with Two Fathers:
Updating the Wisdom of Solomon, 46 La. L. Rev. 1211, 1232 (1986).
[188] Daus, supra n. 176, at 11-12.
[189] Id. at 15, 25.
[190] Id. at 26.
[191] Cf. supra nn. 187 -190 and accompanying text (explaining that children need to
know the identity of both of their biological parents in order to construct an accurate
family medical history).
[192] See supra nn. 181 -186 and accompanying text (explaining that if the children
knew their family medical history, they would be better able to detect medical
disorders).
[193] Cf. id.
[194] Jennifer E. Lansford et al., Does Family Structure Matter? A
Comparison of Adoptive, Two-Parent Biological, Single-Mother,
Stepfather, and Stepmother Households, 63 J. Fam. & Marriage 840,
841 (2001) (admitting that adopted children report that they receive
discriminatory medical treatment since they do not know their family
medical histories); see also infra n. 196 and accompanying text
(explaining why research relating to adopted children is also
persuasive research for the children who are deprived of knowing the
identity of their biological fathers).
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[195] See D.O., 722 A.2d at 139 (explaining that the children’s need to know their
family and genetic backgrounds to determine their medical and emotional history
should be used to determine the children’s best interests). Additionally, a failure to
identify the children’s biological father may lead to unintentional inbreeding, which
may lead to medical problems in the children’s children. Hilderson, supra n. 108 , at
2.
[196] Brodzinsky, supra n. 142 , at vii, ix, 2. This Article discusses children who
likely know their biological mothers and their presumed marital fathers (i.e., their
mothers’ husbands) but do not know the true identity of their biological fathers.
However, most of the authority that is cited in this section relates to adopted
children—children who are unlikely to know the identity of either their biological
mothers or biological fathers. Notwithstanding, the use of this authority is
appropriate in this Article for at least two reasons.
First, both sets of children are similarly situated. Both sets of children are
“adopted” by a non-biological parent. For example, assume that a wife gives birth to
a child that is not the husband’s biological child, and a court declares the husband to
be the child’s legal father. In a legal sense, the husband has “adopted” the child;
although the husband does not share a biological tie with the child, as far as the law
is concerned, he is that child’s legal father. This legal relationship between the
husband and child is no different from the relationship that the husband would have
had with a stranger’s child. Additionally, both sets of children suffer from the
element of the unknown; both groups of children are deprived of knowing the
identity of a biological parent.
Second, psychological research relating to children who are only deprived of
knowing one of their biological parents is not readily available. Indeed, children have
only recently benefited from clinical and scientific research, and much of this work
has occurred in the context of divorce and adoptions. Id. at vii, ix, 2. In other words,
there is very little research available that explores the effects of a child being raised
by one biological parent and one non-biological parent. Id. at 1. Therefore, this
section relies on the psychological research conducted on adopted children—children
who are deprived of knowing the identity of both of their biological parents.
[197] Blomquist, supra n. 174 , at 12 (acknowledging the feelings of an adopted child
who was deprived of knowing her biological parents).
[198] See supra nn. 166 -167 and accompanying text (explaining that
under the BIMPP, courts are likely to consider, among other things,
with which presumed or alleged father the children have a substantial
relationship).
[199] Cf. Blomquist, supra n. 174 , at 35 (providing that at one time, nurturing the
children was considered more important than the children’s biology).
[200] Id.
[201] See Brodzinsky, supra n. 142, at 71 (explaining that even if adopted children
have not had contact with their biological parents, they will experience a sense of
loss).
[202] Id. at 29.
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[203] Id. at 30; Blomquist, supra n. 174 , at 35.
[204] Brodzinsky, supra n. 142 , at 30.
[205] Blomquist, supra n. 174 , at 36.
[206] Cf . id. (opining that if adoptive children are unable to complete the grieving
process, it will more likely prevent them from establishing a relationship with their
legal parents).
[207] Brodzinsky, supra n. 142 , at 107-108.
[208] Id. at 108.
[209] Id. at 113.
[210] Blomquist, supra n. 174 , at 25.
[211] Cf. id. (opining that children will only be able to construct their self-identities if
they are told the truth about their biological parents).
[212] Id.; Hilderson, supra n. 108 , at 2 (declaring that children obtain a great deal of
psychological satisfaction from knowing who their biological parents are and as a
result, in the 1980’s, adoption agencies throughout the U.S. received tremendous
pressure to keep track of and to reveal the identities of adopted children’s natural
parents).
[213] Brodzinsky, supra n. 142 , at 113.
[214] Blomquist, supra n. 174 , at 25.
[215] Id.
[216] Id.
[217] Cf. id. at 36 (verifying that unless children know a parent, the
children will be unable to complete the grieving process).
[218] Brodzinsky, supra n. 142 , at 74.
[219] Blomquist, supra n. 174 , at 37.
[220] Id. at 11 (acknowledging the feelings of a child who was deprived of knowing
his biological parents).
[221] Generally, preclusion prohibits the re-litigation of a suit that a court of
competent jurisdiction has already been determined. Student Author, Privity,
Preclusion, and the Parent-Child Relationship, 1977 B.Y.U. L. Rev. 612, 612
[hereinafter Privity].
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[222] The doctrine of preclusion is comprised of two sub-legal doctrines: claim
preclusion and issue preclusion. See id. Issue preclusion forecloses any litigation of issues that
were not litigated in the first action but should have been. Id. at 616. Claim preclusion prohibits the relitigation
of claims that have already been litigated and decided upon. Id. at 614.
[223] Restatement (Second) of Judgments § 27 (1982); see also
Montana v. U.S., 440 U.S. 147, 152 (1952) (“ ‘A fundamental precept of
common-law adjudication, embodied in the related [doctrine] of [preclusion], is that a
right, question or fact distinctly put in issue and directly determined by a court of
competent jurisdiction . . . cannot be disputed in a subsequent suit between the same
parties or their privies . . . Under res judicata, a final judgment on the merits bars further
claims by parties or their privies based on the same cause of action . . . Under [claim
preclusion], once an issue is actually and necessarily determined by a court of competent
jurisdiction, that determination is conclusive in subsequent suits based on a different
cause of action involving a party to the prior litigation.”) (citations omitted); E.I.B. v.
J.R.B., 611 A.2d 662, 667 (N.J. Super. App. Div. 1992) (holding where a mother brought
a prior paternity action that was litigated, which made the same allegations and sought
essentially the same relief of the child’s subsequent action, the child was precluded from
bringing the subsequent action).
[224] Moon v. Varquez, 999 S.W.2d 678, 680 (Ark. 1999); Privity, supra n. 221, at
612.
[225] See Moon, 999 S.W.2d at 680 (emphasis omitted).
[226] See e.g. Mower County Human Serv. v. Graves, 611 N.W.2d 386,
387-390 (Minn. App. 2000) (holding that a child was precluded from
bringing a subsequent paternity action after a governmental agency
failed to prove paternity in a previous paternity proceeding); Purcell v.
Bellinger, 940 S.W.2d 599, 601 (Tex. 1997) (holding that the child was
barred from bringing a subsequent suit after her mother failed to
establish paternity in a prior paternity proceeding); Miller v. Cowart,
546 So. 2d 768, 768 (Fla. 2d Dist. App. 1989) (“If a husband has
doubts concerning the paternity of a child born during the marriage, he
should raise and resolve that question during the dissolution
proceedings. Here, the issue of each child's paternity was resolved in
the final judgments of dissolution.”) (citing Johnson v. Johnson, 395
So. 2d 640, 641 (Fla. 2d Dist. App. 1981) (emphasis added).
[227] See infra nn. 228 -234 and accompanying text (identifying the
four policies underlying the preclusion doctrine).
[228] Jessica G. v. Hector M., 653 A.2d 922, 927 (Md. 1995); Privity, supra n. 221,
at 614.
[229] Privity, supra n. 221, at 614.
[230] Id.
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[231] Id.
[232] Id.
[233] Id.
[234] Id.
[235] See E.B.M. v. V.W., 586 So. 2d 230, 231 (Ala. Civ. App. 1991).
[236] Jessica G., 653 A.2d at 927-928 (conducting a survey of state law
with regard to paternity preclusion and concluding that the issue is
whether the children’s interests were actually litigated in the first
action—and thus, whether the children were in privity with a party in
the first action); see also Purcell, 940 S.W.2d at 601 (holding that if
the children cannot prove that their interests were not adequately
represented in the first action, their subsequent action will be barred);
but see Bradley v. Div. of Child Support Enforcement, 582 A.2d 478,
483-484 (Del. 1990) (declaring that the child was barred from bringing
a subsequent action even if the child was not a party to the first
action).
[237] See e.g. Ala. Code § 26-17-6 (2004) (“A child . . . may bring an action at any
time for the purpose of declaring the existence of the father and child relationship . .
. but for purposes of support, the action shall be brought before the child reaches the
age of 19.”); Fla. Stat. § 742.011 (2004) (“Any . . . child may bring proceedings in
the circuit court, in chancery, to determine the paternity of the child when paternity
has not been established by law or otherwise.”); Minn. Stat. § 257.57 (2003) (A
child . . . may bring . . . [a paternity] action . . . .”).
[238] Rivera v. Minnich, 483 U.S. 574, 582 (1987) (“[A] paternity suit
terminates with the entry of a final judgment that bars repeated
litigation of the same issue under normal principles of civil litigation.”).
[239] Privity, supra n. 221 , at 614.
[240] Compare Ex parte Snow, 508 So. 2d 266, 268 (Ala. 1987)
(concluding that the child was not in privity with her parent, because
the child had different interests in establishing the existence of
paternity); Settle By and Through Sullivan v. Beasley, 308 S.E.2d 288,
290 (N.C. 1983) (finding that the child was not in privity with his
mother or the governmental agency that brought the prior paternity
action against his putative father); Johnson v. Norman, 421 N.E.2d
124, 127 (Ohio 1981) (finding that a child and mother were not in
privity); Cmmw. Dept. of Social Serv. v. Johnson, 376 S.E.2d 787, 790
(Va. 1989) (holding that a mother and child were not in privity even
though the child was formally named a party, represented by a
guardian ad litem and given an adequate opportunity to litigate the
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issue); In re Paternity of Amber J.F. v. Richard B., 557 N.W.2d 84, 87
(Wis. App. 1996) (holding that since the child had additional interests
to protect like inheritance, social security survivor benefits, employee
death benefits, life insurance proceeds, and health insurance, the
child’s interests were not the same as the mother’s) with T.R. v. A.W.
by Pearson, 470 N.E.2d 95, 97 (Ind. App. 1984) (declaring that the
mother and daughter were in clear privity); Bradley, 582 A.2d at 483
(explaining that even if a child is not a named party in the first action,
the child’s interests are represented by the mother in the first action);
Jessica G., 653 A.2d at 927 (holding that a child was in privity with her
mother).
[241] Compare supra n. 240 and accompanying text (demonstrating
that jurisdictions are split on the issue of whether parents and children
are privies) with supra n. 225 and accompanying text (explaining that
the parties in both actions must be substantially identical before
paternity preclusion will bar the subsequent action).
[242] Compare In Paternity of Amber J.F., 577 N.W.2d 84, 87 (Wis. App. Dist. 1996)
(allowing a child to bring subsequent paternity actions to determine paternity); with
E.I.B., 611 A.2d at 665 (prohibiting the child from bringing subsequent paternity
actions); Dept. of Human Serv. v. Seamster, 820 S.W.2d 298, 299-300 (Ark. 1991)
(barring subsequent paternity actions after the mother had an opportunity to
establish the child’s paternity); Dept. of Health & Rehab. Serv. v. Ricks, 530 So. 2d
370, 371 (Fla. 2d Dist. App. 1988) (holding that after the mother had an opportunity
to bring a paternity action, all subsequent paternity actions against the same
putative father would be barred).
[243] Blomquist, supra n. 174 , at 11 (acknowledging the feelings of a child who was
deprived of knowing his biological parents).
[244] See e.g. Bill By and Through Bill v. Gossett, 647 P.2d 649, 654 (Ariz. App. Div.
1982) (quoting J. Moore, Moore’s Federal Practice vol. 1B, ¶ 0.411[3], 1447 (LEXIS
2003)) (“[W]e conclude that the child's interests are inextricably bound to the
litigation of a paternity action, whether brought in the name of the state, the mother
or the guardian.”); Bradley, 582 A.2d at 483-484 (“Delaware's modifications to the
Uniform Parentage Act evidence a conscientious determination by the General
Assembly to bind a child by a finding of paternity or non-paternity in a judicial
proceeding, whether or not the Child was joined as a party in the initial action.”);
J.D. v. E.W. By C.W., 610 N.E.2d 289, 290-91 (Ind. App. 1993) (holding that the
child’s subsequent claim was barred); T.R., 470 N.E.2d at 97 (“The record clearly
indicates that [the mother] fully represented [the child's] rights in the 1977 suit . . .
. The suit dealt exclusively with the question of paternity and the concomitant
obligation of support in the event paternity was established . . . . The issues now
forwarded are identical to those forwarded in the 1977 suit, and liability in both cases
is based on the same facts. The issues were fully and conclusively litigated in the
first action and may not be re-litigated.”); O'Bannon for O'Bannon v. Azar, 506 So.
2d 522, 528 (La. App. 2d Cir. 1987), cert. denied, 511 So. 2d 1158 (La. 1987)
(providing that since the child’s mother attempted to establish the child’s paternity
against the defendant in a previous action, the child was barred from bringing a
subsequent action); Op. of the JJ., 558 A.2d 454, 458 (N.H. 1989) (citation omitted)
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(“[A]lthough a paternity action may be brought by 'the mother, child, or the public
authority chargeable by the law with support of the child,' a judgment in a paternity
action obtained against one of these parties may be given preclusive effect against
all, since action by any one of them asserts the child's claim, or subrogation rights
derived therefrom.”).
[245] See e.g. Ala. Code § 26-17-18 (2004); T.K.S. v. State of Ala. ex
rel M.S.B., 673 So. 2d 429, 432 (Ala. Civ. App. 1995); In re Paternity
of S.D.M., 882 P.2d 1217, 1221 (Wyo. 1994).
[246] T.K.S., 673 So. 2d at 432; In re Paternity of S.D.M., 882 P.2d at
1221.
[247] Jessica G., 653 A.2d at 928 (“[T]he decisions from other jurisdictions appear to
be split on the issue before us today, although the vast majority follow the
proposition that when there is an actual factual determination of non-paternity in a
paternity suit by the child's mother, then the child is forever bound by that factual
finding.”).
[248] In re Trust Created by Agreement Dated Dec. 20, 1961, 765 A.2d at 752 (citing
In re Gilbraith, 512 N.E.2d 956, 961 (Ohio 1987)) (“[T]he policy of this state
requires, in sum, that the parent-child relationship be shielded from the unsettling
effects of further judicial inquiry, and that re-litigation of parentage be barred, as a
general rule, in any subsequent actions . . . .”); Ga. ex rel. Brooks v. Braswell, 474
N.W.2d 346, 350 (Minn. 1991) (declaring that the presumption of paternity would no
longer be subject to rebuttal after the paternity order becomes final).
[249] Ga. ex rel. Brooks, 474 N.W.2d at 350.
[250] See e.g. Unif. Parentage Act § 608; Wallis v. Sikes, 801 So. 2d
290, 290 (Fla. 1st Dist. App. 2001).
[251] See e.g. Graves, 611 N.W.2d at 389 (holding that since, among
other things, the child was represented by a G.A.L. in the first action,
the child was barred from bringing a subsequent action).
[252] See supra nn. 197 -219 and accompanying text (explaining why,
psychologically, it is in the children’s best interests to learn the truth
about their biological paternity).
[253] Hilderson, supra n. 108 , at 5; see infra n. 272 (identifying
jurisdictions allowing children to bring paternity actions to establish
their own paternity).
[254] Hilderson, supra n. 108 , at 5.
[255] Id. (asserting that it has been argued that children should not be
unfairly deprived of their statutory right to establish their paternity
until they have had an opportunity to actually participate in the
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paternity proceedings themselves).
[256] See e.g. Ex parte Snow, 508 So. 2d at 268 (concluding that the child was not
barred from bringing the subsequent suit, because the child had different interests in
establishing the existence of paternity); State ex rel. D.H.S. v. Benjamin, 395 S.E.2d
220, 223-225 (W. Va. 1990) (concluding that a dismissal, with prejudice, of a
paternity action initiated by a mother did not preclude a child from bringing a second
action to determine paternity).
[257] Compare supra n. 75 and accompanying text (explaining that
BIMPP courts created the BIMPP to protect the best interests of the
children) with infra n. 258 and accompanying text (explaining that
jurisdictions allow new paternity determinations because it will be the
children’s best interests to do so).
Indeed, many of these courts reason that since the determination
of paternity is an issue of law, and a new paternity determination may
sometimes be warranted in order to avoid an inequitable result, parties
seeking to establish a child’s paternity are provided with a complete
defense to paternity preclusion. Compare Restatement (Second) of
Judgments § 28 (1982) (providing that a party will not be precluded
where the issue is one of law and a new determination is warranted in
order to take account of an intervening change in the applicable legal
context) with Moon, 999 S.W.2d at 680-681 (admitting that with
respect to paternity issues, the court applies a modified form of
preclusion, which is subject to changed circumstances and the best
interest of the children); Miss. Dept. of Human Serv. v. Helton, 741 So.
2d 240, 242 (Miss. 1999) (holding that the attempt to achieve a result
that was in the best interests of the children was a sufficiently
extraordinary and compelling circumstance to avoid the application of
the preclusion doctrine); but see In re Paternity of J.R.W. & K.B., 814
P.2d 1256, 1265 (Wyo. 1991) ("Because of the potentially damaging
effect that re-litigation of a paternity determination might have on
innocent children, the [doctrine] of [preclusion is] observed in the
paternity context.").
[258] See e.g. Moon, 999 S.W.2d at 680-681 (admitting that with respect to paternity
issues, the court applies a modified form of preclusion, which is subject to changed
circumstances and the best interest of the children); Helton, 741 So. 2d at 242
(modifying the preclusion rule in an attempt to achieve the best interests of the
children); Jessica G., 653 A.2d at 929 (explaining that the prior paternity judgment
may be set aside if it is in the children’s best interests); Gloria R. v. Alfred R., 631
N.Y.S.2d 1011, 1013 (N.Y. App. Div. 18th Dept. 1995) (“Standard custody disputes
are not usually subject to [preclusion] because the "best interests" of children are
more important than any of the benefits of closure.”) (emphasis in original); Spenser
v. Spenser, 488 N.Y.S.2d 565, 569 (N.Y. 1985) (“In searching for a child's best
interests, the court is not bound by prior agreements of the parents, nor must it
accord [preclusion] status to prior orders.”) (emphasis in original).
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[259] See e.g. Moon, 999 S.W.2d at 681 (“In sum, although [preclusion] can apply in
domestic-relations matters, with respect to custody and support, we have
unequivocally held that it is subject to changed circumstances and the best interest
of the child.”); Gloria R., 631 N.Y.S.2d at 1013 (“[T]he "best interests" of children
are more important than any of the benefits of closure.”); see also Meiners, supra n.
187 , at 1233.
For example, courts have refused to preclude a party from bringing
subsequent actions in domestic relations cases where the issues are child custody,
support, and/or visitation. See e.g. Gloria R., 631 N.Y.S.2d at 1013 (“Standard
custody disputes are not usually subject to [preclusion] because the "best interests"
of children are more important than any of the benefits of closure.”) (emphasis in
original); Scroggins v. Scroggins, 753 S.W.2d 830, 832 (Tex. App. 1988) (“A final
judgment in a custody proceeding is res judicata of the best interests of the child as
to conditions existing at that time.”); Spenser, 488 N.Y.S.2d at 569 (“In searching
for a child's best interests, the court is not bound by prior agreements of the parents,
nor must it accord [preclusion] status to prior orders.”) (emphasis in original).
[260] Compare Restatement (Second) of Judgments § 28 (1982)
(providing that a party will not be precluded where there is a clear and
convincing need for a new determination of the issue because of the
potentially adverse impact of the determination on (a) the public’s
interest or (b) the interests of persons not themselves parties in the
initial action) with Moon, 999 S.W.2d at 680-681 (admitting that with
respect to paternity issues, the court applies a modified form of
preclusion, which is subject to changed circumstances and the best
interest of the children); Helton, 741 So. 2d at 242 (modifying the
preclusion doctrine to achieve the best interests of the children).
[261] Id.; see Scroggins, 753 S.W.2d at 832 (“[B]efore the court may even consider
[to change the children’s custody], it must make a threshold determination of
whether there has been a material and substantial change in circumstances.”).
[262] E.I.B., 611 A.2d at 667 (“If different parties representing the same
interest are allowed to successively re-litigate the same facts and
issues, final judgment would become an illusive, if not [an]
unattainable goal.”); Wise v. Wise, 49 S.W.2d 450, 452 (Tex. App.
2001) (declaring that “endless litigation” would be worse than a
miscarriage of justice).
[263] See supra nn. 211 -214 and accompanying text (explaining that a
failure to identify the children’s biological parent may result in the
children being unable to construct their own healthy self identities).
[264] Cf. supra nn. 213 and accompanying text (asserting that if
children are able to construct their own self identities, it may provide
the children with emotional relief).
[265] Cf. Sandra L. Hofferth & Kermyt G. Anderson, Are All Dads Equal?
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Biology Versus Marriage as a Basis for Paternal Investment, 65 J.
Marriage & Fam. 215, 217 (2003) (available at
) (verifying that nonbiological
children between a married couple causes family conflict and
that non-biological parents are less warm and supportive to nonbiological
children).
[266] Cf. id.
[267] E.I.B., 611 A.2d at 667 (“[T]he need to avoid harassing litigation is a legitimate
concern, worthy of consideration in barring subsequent suits. In 1977, [the alleged
biological father] successfully defended the suit brought by [the children’s] mother . .
. which was based on the same facts and legal issues now forwarded. [The alleged
biological father] now faces the same ordeal, embarrassment, and expense incurred
in the 1977 suit . . . . [sic] It seems fundamentally unfair to make him run the same
gambit a second time.”); Privity, supra n. 221 , at 632 (“A determination of nonpaternity
should provide an accused man with some assurance of finality, especially if
accomplished through the use of [a] blood grouping test . . . a man is either the
father of a child or he is not. Irreconcilable decisions would seem to indicate that one
court had failed in its duty to provide a forum for just adjudication of disputes.
Finally, unnecessary re-litigation of the paternity issue is among the most harassing
actions imaginable.”).
[268] Privity, supra n. 221 , at 625 (espousing that a court’s failure to
preclude the children from bringing a subsequent suit against a third
party unfairly required the third party to spend additional time and
money defending the second action, which was based on the exact
same issues in the first action).
[269] See E.I.B., 611 A.2d at 667 (“[T]he failure to invoke [preclusion] in this
case results in an unnecessary delay and additional burden on an
already overcrowded court system . . . .”).
[270] See infra n. 272 .
[271] See e.g. Tedford, 959 P.2d at 545 (concluding that the best
interest of the children standard only applies when the children are
minors).
[272] See e.g. Kan. Stat. Ann. § 38-1115 (2004) (establishing that
children can establish their paternity within three years after reaching
the age of majority); compare also e.g. Alaska Stat. § 09.10.140
(2003) (establishing that a paternity action can be brought within two
years after the children reach the age of majority) with Grober v. St.
Dept. of Rev., 956 P.2d 1230, 1232 (Alaska 1998) (establishing that
children can establish their own paternity); compare Fla. Stat. § 95.11
(3)(b) (2003) (establishing that a paternity action may be brought
within four years after the children reach the age of majority) with Fla.
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Stat. § 742.011 (2003) (establishing that children can establish their
own paternity); compare N.M. Stat. Ann. § 40-11-23 (2004)
(establishing that a paternity action can be brought within three years
after children reach the age of majority) with N.M. Stat. Ann. § 40-11-7
(2004) (establishing that any interested party may bring a paternity
action); compare also e.g. Wis. Stat. § 893.88 (2003) (establishing
that a paternity action may be brought up until the children’s
nineteenth birthday) with Wis. Stat. § 767.45 (2003) (establishing that
children may establish their own paternity).
[273] See generally id.
[274] See e.g. D.O., 722 A.2d at 139-140 (N.J. Super. App. Div. 1997) (using the
“best interests of the adult children” standard in lieu of the “best interests of the
children” where an adult child sought to establish his own paternity); Tedford, 959
P.2d at 546 (“We conclude that the best-interest-of-the-child standard is applicable in a paternity or
retroactive child support action only when the child involved in such proceeding is a minor . . . .”); In re
Adult Anonymous II, 452 N.Y.S.2d 198, 200 (N.Y. App. Div. 1982) (rejecting the use
of the best interests of the children standard when the “children” are actually adults);
In re Adoption of Adult Anonymous, 435 N.Y.S.2d 527, 531 (N.Y. Fam. 1981)
(rejecting the use of the best interests of the children standard when the “children”
are actually adults).
[275] See e.g. D.F., 823 So. 2d at 110 (struggling to reconcile its
precedent, which applies the semi-conclusive BIMPP, and the need for
finality in paternity judgments).
[276] Blomquist, supra n. 174 , at 10 (acknowledging the feelings of a child who does
not know the identity of his biological parents).
[277] The marital presumption of paternity should assume that the
wife’s husband should be the legal father of her children. The biological
presumption of paternity should assume that the biological father of
the children should be the children’s legal father. The functional
presumption of paternity should assume that the father who actually
raised the children should be the children’s legal father.
[278] Note that although most people associate “fatherhood” with biological paternity,
there are at least six categories of fathers:
1. Biological Father: the man whose sperm actually impregnated the
children’s biological mother.
2. Financial Father: the man who provides financially for the children.
3. Functional Father: the man who raises the children.
4. Legal Father: the man who the law identifies as the person with all
the rights, privileges, duties, and obligations of fatherhood.
5. Marital Father: the mothers’ husband on the day the children were
born and/or conceived.
6. Putative Father: the man merely alleged to be the children’s
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biological father.
See generally Altenbernd, supra n. 90 , at 225-227 (identifying and
discussing the various categories of fatherhood).
[279] See Lynn White & Joan G. Gilbreth, When Children Have Two
Fathers: Effects of Relationships with Stepfathers and Noncustodial
Fathers on Adolescent Outcomes, 2001 J. Marriage & Fam. 155;
Meiners, supra n. 187 , at 1228.
[280] White, supra n. 279, at 155; Hilderson, supra n. 108 , at 3
(opining that children should have a right to enjoy a relationship with
both the custodial (non-biological) parent and the non-custodial
(biological) parent).
[281] Meiners, supra n. 187, at 1233.
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