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 2005 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. 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 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 old English common law notion that birth in marriage establishes paternity. Although the law originally operated to avoid bastardy, it now serves a further function in preventing mothers and their children from facing abandonment.

Rights in the Balance

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.

The Child

In most of the relevant court rulings, the paramount concern 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.

What are the quotes around "children" designed to indicate: that these aren't actually children? Is their legal entitlement to support from the adults around them "unjust" unless it corresponds to possession of half each adult's genome? Are adopted children "children"? If not, why is adoption an appropriate basis for legal obligation, but not contemporaneous marriage to a biological parent?

Nevertheless, these men's 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,

Hadn't you better get your breathing under control and check your analysis? A woman has married, and she has borne a child. Her husband is financially responsible for the support of that child: his obligation arises from the marriage, rather than from any representation the woman has made, or any intention she had of his relying on it. "Fraud" is a metaphor, and depends for its effect on the unestablished, and largely inaccurate, proposition that adultery is a crime. A man who wanted to be sure that the children he is going to be charged with supporting are his genetic offspring could have paternity tested in utero, or divorce his wife unless she agreed to the test. You would say, I suppose, that such a fellow is trying to avoid fraud. I might reach a different conclusion.

and the true father bears none of the financial responsibility for his child. These inequalities demand reform.

Perhaps abolishing marriage would work for you?

First, the true father, if found within the statute of limitations, should take on the financial responsibility for his child, just as he would if no other man had been duped. i

Gaining parental rights in the process? Otherwise, new inequalities will demand reform, n'est-ce pas?

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.

Surely you don't expect that to turn out very well, do you? You see judgments enforced by husbands against wives out of the common marital property? Or this is a special benefit for divorced former husbands only, giving an immense apparent financial incentive for family breakup? You anticipate significant and effective collections of the sums expended by resident fathers from the transient uninvolved parties you call "adulterers"? Good luck with that. You should have been able to see why this proposal is not only not going to happen, but couldn't actually happen.

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.

Marriage is not only a right, after all, but a responsibility. So is biological parenthood, but it is not terribly surprising that where the law terminates parental rights, it also terminates support obligations. Would you establish also, in addition to these residual support obligations for previously-unidentified biological fathers, residual rights to visitation and shared decisions on upbringing?

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 "men 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 adversity 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.

You have made a variety of assumptions about the story I told, not the least of which is that it's a story of "injustice." I'm not convinced of that, but I am convinced of the difficulties the criminal justice system faces in a situation which, as I pointed out, had as much to do with the extracultural origin of the two young people whose fight turned into a felony prosecution as it had to do with anything else. Your supposedly analogous situation is in fact quite different. All the fulmination about "fraud" explains why. Here you are arguing that a rule of which everyone can be prospectively aware, which has been in place for more than a thousand years, and which serves a variety of positive social purposes, is "unjust" because it operates as it has always done. In order to take that position, you have to decompose marriage as a civil contract, with specific obligations, and restore it to a kind of market participation, in which—I suppose—men buy sex in return for an obligation to support any children they actually engender. Whether that would be a better approach to the institution of marriage (which you might just as well argue ought to be disestablished outright) seems to me to involve more questions of "justice" than the one terribly hard case of fathers who have been cheated into loving children they didn't fuck into existence.