Paternity by Estoppel: Fighting Injustice with Injustice

-- By SamHershey - 21 Feb 2010

Introduction

In class, Eben mentioned an innocent boy who is at risk of deportation because of an accidental injury to his girlfriend and the inexorable "must arrest" laws that he now faces. The story prompted some class members to argue that the sacrifice of innocent men is a worthy exchange for the safety of abused women. This debate reminded me of a fascinating, heartbreaking article titled "Who Knew I Was Not the Father?" that appeared in the New York Times Magazine last November. The article discusses men who, when they realize that they have been duped into raising children who are not their own, find themselves bound by stringent paternity laws to continue to pay child support. While I would never wish to downplay the horrors of domestic violence and deadbeat fathers, my fear in both situations is that the law, in combating terrible social ills, has created new injustices. I reject as false the proposition that the law can only work in obscene binaries: that we must choose whether to sacrifice the rights of this group or of that group. The law must work in more nuanced ways to achieve justice.

The Problem: Solving One Injustice by Creating Another

Abandoned Mothers

The abandonment of mothers and children is a grave and rampant problem. According to the US Census Bureau, over 20% of custodial mothers, i.e. single mothers with minor children, do not receive any child support from their children's father. While mothers who know the identity of their children's father have potential recourse through the courts, mothers who remain ignorant of the identity of their children's father face a hopeless situation. For that reason, efforts to identify and legally bind absentee fathers have proved essential to achieving justice for these women and their children.

Deceived "Fathers"

Still, through the enforcement of stringent paternity laws, a new class of victims has been created. As the New York Times article recounts, DNA testing has enabled men across the country to discover that the child they have been raising is not theirs at all. These men are doubly deceived--not only in remaining faithful to an adulterous wife, but also in supporting her lover's child. Different states adopt different approaches to this problem, but as the New York Times article notes, the laws of the vast majority of states offer no sympathy to the deceived man: Not only must he continue to pay child support, but also the true father, if he is known or discovered, bears no financial obligation. These states operate under the ancient notion that birth in marriage establishes paternity, and adultery and deception change nothing. Some might say that these men are the necessary victims in a system that, to combat deadbeat fathers, must privilege the rights of mothers above all else. I find that argument callously simplistic.

Rights in the Balance

The Child

The paramount consideration behind most of the relevant court rulings has been the well-being of the out-of-wedlock child. And rightly so: The child is an innocent bystander to the fraud perpetrated by its mother. It is powerless to defend its interests. Courts have reasoned that allowing men to abandon the child they have been caring for, even if that child proves not to be their own, would constitute a greater injustice than forcing those men to continue to pay child support. I do not dispute this conclusion. Both the man and the child are victims, but the child's rights must take precedence.

The Deceived Father

Still, the rights of the deceived father must be considered. It is true that many of these fathers develop deep relationships with their "children" and would perhaps independently desire to support them. Nevertheless, the legal obligation to pay for a child that is not theirs is a continual, bitter reminder of their status as dupes. As the Alaska Supreme Court noted in a "paternity by estoppel" case, the legal duty to pay child support can poison the very relationship it hopes to save.

The Mother and the True Father

Under the current state of the law, while the deceived father must pay child support, the mother escapes all negative consequences of the fraud she has perpetrated, and the true father bears none of the financial responsibility for his child. This area of the law demands reform. First, the true father, if he can be found, should take on the financial responsibility for his child, just as he would if no man had been duped into taking his place. Furthermore, after the child reaches an age at which it no longer needs to be supported, the mother, the true father, or both should recompense the deceived father for the money he has spent as a result of their fraud. Doing so would enable the mother to receive child support when she needs it and would still save the relationship between the deceived father and his child from the bitterness discussed above. The injustice to the deceived father, while not entirely erased, would be greatly diminished. What's more, the deceived father should be looked favorably upon in custody disputes. By continuing to support a child that is not his, he has movingly proven his emotional attachment and commitment to the child.

Conclusion

Ultimately, the real problem for these deceived "fathers" and for innocent boys like the one Eben discussed in class is that they have had the misfortune of falling into groups that are rightly viewed with skepticism, namely "fathers who no longer wish to pay child support" and "men who have been accused of abusing their partners." Nevertheless, it is precisely because these innocent men face such intense doubt and antipathy that sensitive, serious lawyers must strive to defend them. Changes in the law that allow for more nuanced treatment of these men should not be seen as a threat to women but rather as protection of the justice to which all people are entitled.

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