At first glance, genetic testing is an appealing solution to parentage determinations, as it appears to simplify the process. However, assisted reproductive technology refutes the notion that a child’s biological parents must be the child’s legal parents. For example, a surrogacy arrangement creates both biological parents and “intended” parents. The surrogate may be the biological mother of the child, but she likely has no intention of parenting the child. Instead, the surrogate is most often carrying a child for intended parents—one of whom may also have a biological connection to the child. In this scenario, relying solely on biological connections to the child would produce an unwarranted result— the surrogate and one of the intended parents would be treated as the child’s legal parents. Simply put, biological realities may conflict with the intended family structure or the child’s best interests.
Further, the rise of genetic testing has not rendered the marital presumption of paternity obsolete. Even as genetic testing has become increasingly accessible, the marital presumption of paternity remains “one of the most powerful presumptions” in the law. Leach v. Leach, 942 S.W.2d 286, 288 (Ark. Ct. App. 1997).
In Michael H. v. Gerald D., 491 U.S. 110 (1989), the U.S. Supreme Court addressed the tension between biology and the marital presumption of paternity. In Michael H., the child’s biological father, who was not married to the child’s mother at the time of the child’s birth, attempted to establish his parental rights. However, because a California statute created a rebuttable marital presumption of paternity, the mother’s husband was already presumed to be the child’s father. In order to rebut the marital presumption of paternity through genetic testing, the biological father was required to bring a motion within two years of the child’s birth, which he failed to do. As a result, the Court held that the biological father was precluded from rebutting the marital presumption of paternity, despite his genetic connection to the child.
A third approach to parentage determinations is the intent-based or functional approach. It focuses on the actions and intentions of the parent seeking to establish parentage, rather than on their marital relationships or genetic connections. Such an approach has become necessary with the rise of assisted reproductive technology. Biological and martial connections do not always reflect the intended family structure, so courts must now look at the parent’s intentions and actions.
Under UPA 2002, a man is presumed to be the father of a child if he lives with the child and “openly held out the child as his own” during the first two years of the child’s life. UPA § 204 (a)(5). The presumption applies regardless of the father’s marital relationship to the mother or his biological relationship to the child. This provision recognizes that a father who has no biological connection to the child may still intend to care for and parent the child.
Fathers can also voluntarily assume parental obligations through a voluntary acknowledgment of paternity. Federal child support laws require states that are receiving child support enforcement funding to create a framework for fathers to voluntarily establish paternity by signing an affidavit. 42 U.S.C. § 666(a)(5)(C) (i). Such states must also establish procedures under which a signed voluntary acknowledgment of paternity constitutes a legal finding of paternity. 42 U.S.C. § 666(a)(5)(D)(ii).
Rebutting the Presumption
Once a presumption of paternity has been established, circumstances may arise or family structures may change in such a way that a parent or a third party may seek to challenge the presumption of paternity. Whether the parent or third party will be able to do so and ultimately disestablish paternity depends on the unique facts of the case, including the state in which the action is brought.
Rescinding a Voluntary Acknowledement of Paternity
Under federal child support laws, states receiving child support enforcement funding are required to create procedures allowing a parent to rescind a voluntary acknowledgment of paternity within sixty days. 42 U.S.C. § 666(a)(5)(D)(ii). States must also create a procedure for contesting paternity in court on the basis of fraud, duress, or material mistake of fact for parents who fail to rescind the acknowledgment within that sixty-day timeframe. 42 U.S.C. § 666(a)(5)(D) (iii).
The specific procedures for rescinding a voluntary acknowledgment of paternity vary from state to state and consist of a mix of administrative and judicial processes.
Initially, the only way to rebut the marital presumption of paternity was to prove that the husband was either “incapable of procreation” or that he “had no access to his wife during the relevant period.” Michael H., 491 U.S. at 124. Even then, Lord Mansfield’s Rule prevented either spouse from testifying regarding nonaccess or extramarital affairs.
UPA 2002 outlines a more modern approach to the nonaccess rebuttal. Under section 607(b), a presumed father can bring an action to disprove the father-child relationship at any time if the court finds that: “(1) the presumed father and the mother of the child neither cohabitated nor engaged in sexual intercourse with each other during the probable time of conception; and (2) the presumed father never openly held out the child as his own.” Thus, under the UPA, so long as the father did not treat the child as his own, he can use nonaccess to rebut the presumption of paternity.
Some courts have invoked the doctrine of equitable estoppel to prevent a petition to disestablish paternity from moving forward. In those cases, courts have held that a presumed father is estopped from challenging paternity based on the length of time that he has held the child out as his own.
The doctrine “is based on the public policy that children should be secure in knowing who their parents are.” Brinkley v. King, 701 A.2d 176, 180 (Pa. 1997). In other words, once a presumed father has held himself out as a child’s father and they have formed a father-child relationship, “the child should not be required to suffer the potentially damaging trauma that may come from being told that the father he has known all his life is not in fact his father.” Id. An equitable estoppel case could result in a presumed father being required to financially support a child who has no genetic connection to him. Such cases prioritize the child’s best interests over the presumed father’s financial interests.
Notably, the use of the equitable estoppel doctrine in parentage cases is based on the underlying assumption that a child can only have two parents—a mother and a father. In a world where family structures are changing and children can have same-sex parents and multiple caregivers, this assumption may be outdated.
Like the equitable estoppel doctrine, the principle of res judicata is a mechanism available to courts to dismiss petitions to disestablish paternity. The justifications underlying this principle are finality for families and prevention of continued litigation of issues already litigated and decided.
In Dreyer v. Greene, 871 S.W.2d 697 (Tex. 1993), a wife attempted to disestablish the paternity of her children’s presumed father and establish the paternity of another man. In the context of a divorce proceeding, the wife stated under oath that she and her husband were the parents of three minor children. Based on the wife’s statement, the trial court adjudicated the husband as the biological father of the parties’ children and ordered him to pay child support. When the wife initiated a proceeding to establish another man as the children’s biological father, the Texas Supreme Court held that such an action was barred because a final judgment had already adjudicated the wife’s ex-husband as the children’s biological father.
Genetic Testing and Best Interests
It would seem that genetic testing offers a conclusive means of challenging paternity. However, a number of courts preclude genetic testing once there has been a final judgment of paternity. In such cases, the court will only allow genetic testing to move forward if the court finds that testing is in the best interests of the minor child.
Vermont addressed this issue in Godin v. Godin, 725 A.2d 904 (Vt. 1998). The presumed father sought DNA testing fifteen years after the child was born. The court held that he was precluded from undergoing genetic testing “absent a clear and convincing showing that it would serve the best interests of the child .…” Id. at 910. In reaching this conclusion, the court stated that “the financial and emotional welfare of the child, and the preservation of an established parent- child relationship, must remain paramount.” Id.
UPA 2002 takes a similar approach. The court may deny a request for genetic testing if it determines that: “(1) the conduct of the mother or the presumed or acknowledged father estops that party from denying parentage; and (2) it would be inequitable to disprove the father-child relationship between the child and the presumed or acknowledged father.” UPA § 608(a). In deciding whether to allow a motion for genetic testing to proceed, the UPA requires the court to engage in a “best interest” analysis and consider the age of the child, the nature of the father-child relationship, and a number of other factors. UPA § 608(b).
However, other courts have prioritized genetic test results over the best interests of the child. In Doran v. Doran, 820 A.2d 1279 (Pa. Super. Ct. 2003), the presumed father sought dismissal of his child support obligation based on a genetic test that proved he was not the child’s biological father. Even though the man held himself out as the child’s father for more than eleven years, the court granted his motion to dismiss his child support obligation. In reaching this decision, the court held that the marital presumption no longer applied because the parties were no longer married. In addition, the court held that the equitable doctrine of estoppel did not apply because the man only held the child out as his own based on the mother’s misrepresentations regarding paternity.
Significant rights and obligations attach to parentage presumptions. It is precisely because of these rights and obligations that parents and third parties are motivated to establish parentage or attempt to disestablish parentage. In such cases, the courts must look beyond a child’s biological connections and consider the parental rights and financial obligations at stake, the intended family structure, and the child’s best interests. fa