Amicus Online Winter 2003-04

The Case Against Paternity Fraud Laws

BY PROFESSOR MELANIE B. JACOBS, JD, LLM

The family unit has dramatically changed in recent years. In an era in which individuals and couples, heterosexual and homosexual, are embracing new reproductive technologies to create families, the biological connection often does not assist in establishing legal parentage for intended parents.

Couples and individuals alike may contract with egg donors, sperm donors, and gestational surrogates to create their families. As a result, reliance on biology as the determinative means by which to establish legal parentage no longer makes sense. Functional parenthood—emphasizing the daily, routine, and even mundane aspects of everyday parenting—provides a more realistic approach to defining legal parentage, especially for nontraditional families.

Simply because we have the means to determine biological parentage with greater certainty does not mean that it is in the best interests of children to do so.

Additional scientific advances, particularly improved genetic testing, are similarly changing how we define traditional families. While res judicata and estoppel principles have long existed to preserve the unitary, nuclear family, some states are moving away from these doctrines in favor of biological paternal certainty. Thus, if a man is not the biological father of a child—and was either uncertain or unaware of this biological fact—he may petition to disestablish paternity. These disestablishment petitions represent the emergence of a new family law phenomenon—the theory of paternity fraud.

Michigan is among a growing number of states seeking to enact a paternity fraud law. About 12 states currently have some form of paternity fraud law that permits a man who learns he is not the child’s biological father to vacate an order that previously established his legal parenthood. Several of these, like Michigan’s proposed statute, are open-ended, such that the man can file his motion to vacate his paternity at any time—for example, five, 10 or 15 years after the child’s birth. Still others have a stricter statute of limitations of two to three years. The statutes also vary with regards to vacating child support orders and arrearages and also ongoing visitation and parenting time. Thus, paternity fraud jurisprudence has at its core the difficulty of balancing competing best interests: those of the child and the child’s non-biological yet legal father. Whose rights are paramount? Whose should be paramount? And can we characterize this issue as one of genetic innocence?

Michigan House Bill 4120 would allow a man to have a prior judgment of paternity vacated upon showing that the man is not the child’s biological father or adoptive father and that the man did not know or had no reason to know that he is not the biological father.¹ The proposed bill contains no statute of limitations for the filing of the motion, other than a requirement that the man must file the motion within six months of learning that he is not the biological father. The proposed bill does not, however, prevent a man who learns that he is not the biological father of his child 12 years after the child’s birth, for instance, from filing a motion to disestablish his paternity. Worse yet, the proposed bill and a companion bill, House Bill 4650, would permit the court to vacate all child support obligations and any arrearages, while still permitting the man to seek parenting time with the child. The proposed bill thus miserably fails to protect the best interests of children and instead places the rights of non-biological fathers well above those of the children that they have actively fathered for months and, oftentimes, years.

Paternity fraud statutes—predicated on enhanced and cheaper genetic testing—are being used to destroy established, functional families. Simply because we have the means to determine biological parentage with greater certainty does not mean that it is in the best interests of children to do so. For wrongly convicted felons, improved DNA testing has increasingly provided the means by which innocence was finally proved and freedom from incarceration secured. Regularly, newspapers regale readers with stories of prisoners who were wrongly convicted and were proven innocent through advanced scientific testing. Reliance on DNA testing is not relegated to criminal law, however. Many men who have either been adjudicated fathers or who have voluntarily acknowledged their paternal legal status are now challenging those legal determinations because genetic testing subsequently revealed their non-paternity. A grassroots movement is under way to exonerate these innocent fathers from the “bonds of parentage.”² Likening newly discovered evidence of non-paternity to DNA testing that exonerates a felon, the U.S. Citizens Against Paternity Fraud website includes this motto: “If the Genes don’t fit, you must acquit.™ ”³

The issue of paternity disestablishment has become a cause célèbre for men who have unsuccessfully petitioned to disestablish their paternity subsequent to genetic testing which disproved their biological fatherhood. Non-biological fathers equate their non-paternity with a wrongful criminal conviction. As authors Anderlik and Rothstein have recently observed, “...those within the fathers’s rights movement...tend to view family law through the lens of criminal law…It is common to find the issue framed as one of justice or fairness, in the sense that evidence admissible to ‘convict’ should also be available to ‘exonerate.’”⁴ But can (should) family law be equated with criminal law? A wrongly convicted man should be exonerated: he has been the victim of the system. A man who has no biological connection to his child may also feel wrongly adjudicated and tricked by the mother of the child and/or victimized by a federal and state system that forces the mother to name her baby’s father in order to qualify for certain financial benefits. To simply disestablish paternity, however, ignores the crucial difference between the criminal and family law contexts: the presence and best interests of a child.

As our societal understanding of “family” grows, changes and moves away from the traditional, nuclear family, an interesting disconnect has emerged. As Boston Globe columnist Ellen Goodman has observed, these scientific advances force us to ask, “What does make a father? Diapers or DNA?”⁵ She aptly continues, “...family law seems to be going in two directions at once. We are giving more recognition to non-biological relationships…[a]nd more weight to DNA.”⁶ In recent years, scholars, judges and legislators have begun to recognize the importance of functional parenthood. For example, several states have permitted non-biological lesbian coparents to maintain visitation and custody petitions because of their intent to parent and their history of parenting. Similarly, other non-biological parents such as stepparents, grandparents, and foster parents have been able to maintain greater access to the children they have helped to raise. Thus, biology is not the sole criterion for determining parent-child relationships. Moreover, it should not be the only criterion for determining such a relationship. As one judge has noted, “A father-child relationship encompasses more (and greater) considerations than a determination of whose genes the child carries. Sociological and psychological components should be considered. The laws governing adoptions have acknowledged that parentage comprises a totality of factors, the least significant of which is genetics.”⁷

What determines a parent has been the subject of much scholarship, and many scholars are now embracing nontraditional definitions of parentage and family.

What determines a parent has been the subject of much scholarship, and many scholars are now embracing nontraditional definitions of parentage and family. For example, both the American Law Institute (ALI) and the newest version of the Uniform Parentage Act (UPA) recognize the fact that parental status and legal parenthood may be established without regard to biological connection.⁸ To fairly balance the competing interests between a legal, yet non-biological father and his child, the father should have a limited time in which to challenge his legal fatherhood; specifically, I propose that a man have no recourse to challenge his paternity after two years from the date on which he begins to function as a parent and hold himself out as a parent to the child. A two-year period in which to challenge legal fatherhood comports with the two-year statute of limitations contained within the UPA to challenge paternity and/or presumptions of paternity. Furthermore, the two-year period further comports with the ALI Principles time frame for establishing a functional relationship with a child, when the relationship begins after the child’s birth. Just as the ALI Principles recognize that it often takes a period of time in which to establish a functional parental relationship, courts should not ignore the time during which a man has fathered his child. Since legal parenthood can be established based on a two-year period, it would be incongruous to disestablish paternity after an even greater length of time. Finally, by using a two-year statute of limitations in which to challenge legal paternity, the rights of a non-biological father are preserved while ensuring that a child is not deprived of a parent after a significant bond has developed between the parties.

The Michigan legislature should redraft its proposed paternity fraud statute so that it strikes a more equitable balance between the rights of a non-biological, legal father and his child. More often than not, diapers make a daddy—not DNA. The proposed Michigan paternity fraud statute should be amended to better reflect the reality of today’s families.

Portions of this article are excerpted from “Using Functional Parenthood to Make the Case Against Paternity Fraud Laws,” a paper that Professor Jacobs presented in Eugene, Oregon, at the International Society of Family Law Conference in June 2003.

Melanie B. Jacobs is an assistant professor of law at Michigan State University-DCL College of Law. She holds a JD from Boston University and an LLM from Temple University. Before coming to MSU-DCL, Professor Jacobs was a Freedman Fellow and lecturer in law at Temple University, a clinical instructor for Harvard Law School’s Hale & Dorr Legal Services Center, and an adjunct instructor at Boston University School of Law. While in Boston, she also practiced with Witmer, Karp, Warner & Thuotte and served as counsel to the Massachusetts Department of Revenue Child Support Enforcement Division. She publishes on family law, is admitted to the Massachusetts Bar, and teaches family law; decedents, estates and trusts; and property.

¹ Mich. H.B. 4120 (2003).
² See, e.g., U.S. Citizens Against Paternity Fraud, http://www.paternityfraud.com (visited June 10, 2003). Carnell Smith, the founder of the organization and website, attempted several times to vacate his paternity judgment and support obligation in the State of Georgia. He became a lobbyist for paternity fraud reform and, after Georgia recently passed its paternity fraud bill, Mr. Smith returned to court and had his child support obligation vacated. Id.
³ Id.
⁴ Anderlik, Mary R. & Mark A. Rothstein, DNA-Based Identity Testing and the Future of the Family: A Research Agenda, 28 Am. J.L.M. 215, 220 (2001).
⁵ Ellen Goodman, “What Makes a Father?” Baltimore Sun, May 1, 2001, at 11A.
⁶ Id.
⁷ Hulett v. Hulett, 544 N.E.2d 257, 263 (Brown, J. concurring).
⁸ The ALI Principles include establishment of a legal parent-child relationship without regard to genetic connection in specific circumstances. ALI Principles of the Law of Family Dissolution §2.03 91) (2000). Moreover, the UPA also includes presumptions of legal parenthood that are not predicated on biology. For example, the UPA presumes a man’s legal fatherhood if “for the first two years of the child’s life, he resided in the same household with the child and openly held out the child as his own.” UPA §204 (a)(5), 9B U.L.A. 15 (Supp. 2002).