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The Impossible Heir, Further Readings

The state or condition of a father; the relationship of a father.

English and U.S. COMMON LAW have recognized the importance of establishing the paternity of children. In the United States, a child born outside a legal marriage relationship will lose CHILD SUPPORT and inheritance rights if the fatherhood of the child is not legally established. The father may voluntarily acknowledge paternity in a legal document filed with a court or may agree to have his name listed as the father on the child's birth certificate. If the man disputes fatherhood, the mother or the state government may initiate a legal proceeding, known as a paternity action, to adjudicate fatherhood.

The common law also established the "marital paternity presumption," which holds that a child born during a marriage is the offspring of the husband. Therefore, a child born as a result of the wife's adulterous affair is recognized as a legitimate child of the marriage. This rule recognized that ILLEGITIMACY brought social stigma as well as severe economic penalties to a child, including the inability to inherit from the husband of the child's mother. By establishing a presumption of paternity and therefore legitimacy, the rule promoted family stability and integrity.

This rule was developed at a time when no medical tests existed to prove paternity. In addition, a husband could not testify that he had no access to his wife at the time of conception. A husband could rebut the marital presumption only by proving his impotence or his absence from the country.

By the late nineteenth century, U.S. courts began to allow the defense of impossibility to rebut the marital presumption. The question of paternity became a fact that could be rebutted by clear and convincing evidence that procreation by the husband was impossible.

In 1973 the COMMISSIONERS ON UNIFORM LAWS proposed the Uniform Parentage Act (UPA), which sought to establish a consistent rule on adjudicating paternity disputes. The UPA, which has been adopted by 18 states, continued to use the marital paternity presumption. In addition, it presumes a mother's husband to be the natural father of a child if the child is born during the marriage or within 300 days after the marriage is terminated. The UPA does state, however, that a presumption of paternity may be rebutted by clear and convincing evidence.

Modern science has made the adjudication of paternity issues easier. Modern blood and genetic testing can accurately determine paternity. Human leukocyte antigen tissue typing can provide up to a 98 percent probability that a certain man is the father of a particular child. The use of DNA testing provides near-positive paternity identification. Many states that have adopted the UPA have created a presumption of paternity based solely on genetic testing. Some courts have questioned the need for the marital presumption at all because of the certainty produced by testing.

The evolving state of the martial presumption of paternity can be seen in the revised Uniform Parentage Act (UPA), published in 2000. While the new UPA retains all of the original presumptions related to marriage, it eliminates the clear and convincing evidence standard for rebutting an assumption of paternity. Instead it states that the presumption may be rebutted "only by admissible results of genetic testing excluding that man as the father of the child or identifying another man as the father of the child." The most recent UPA states: "The existence of modern genetic testing obviates this old approach to the problem of conflicting presumptions when a court is to determine paternity."

In determining a husband's paternity, the court may deny a request for genetic testing if it finds by clear and convincing evidence that the conduct of the mother or the presumed father means it would be unfair to allow that party to deny parentage and it would be wrong to end the father-child relationship. According to the new UPA, the alleged biological father of a child born to a married mother now has standing to bring an action to determine the existence or non-existence of the parent-child relationship. The new UPA also adopts a time limit to rebut the marital presumption to two years following the birth of the child if the presumed father lived in the same household as the child or treated the child as his own.

In addition to the changing provisions of the new UPA, genetic testing has also allowed most states to expand the categories of persons who can challenge the martial presumption and increase the chances that such challenges will be successful. With that, the marital presumption of paternity has become eroded. Twenty-two states now set a scientific standard for a conclusive presumption of non-paternity, while eight states establish a scientific standard for a conclusive presumption of paternity.

But despite the new emphasis on genetic testing, both the newly revised UPA and most state laws and courts put some emphasis on the best interests of the child. In states such as Arizona, Wisconsin, Kansas, Maryland, Montana and Minnesota, courts have said that the best interest of the child must be taken into account when determining paternity. In some cases, courts have upheld the right to refuse genetic tests if it is determined they are not in the best interest of the child; others have stated the best interests of the child must be taken into account after the genetic testing determines paternity.


DNA Evidence; Family Law; Paternity Suit.

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