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Our last column dealt with the rights of unwed fathers to assert paternity in an attempt to thwart the adoption of their children. In this column we will consider the issue of paternity establishment in other contexts [NLJ, March 19]. We begin with those circumstances in which a man’s already-established paternity is challenged by the mother or the biological father. We will consider under what circumstances a biological mother is estopped from denying the legal paternity of a nonbiological father. A child born to a married mother is presumed to be the child of her husband. At common law, this presumption was known as Lord Mansfield’s rule and was rebuttable only upon a showing that the husband was sterile or did not have access to the wife during the period of conception. The rule served to protect a child from the severe disabilities that flowed from a finding of illegitimacy. It also was useful at a time when paternity establishment was difficult. Although most disabilities associated with being born out of wedlock have disappeared, and paternity can now be quickly established through DNA testing, many states still restrict the ability to challenge the marital presumption. Rebuttal of presumption limited in two crucial ways Under the Uniform Parentage Act, adopted in nearly half the states, rebuttal of the presumption is limited in two important ways: 1) by limiting standing to challenge paternity and 2) by limiting the time in which such an issue can be raised. The modern justification for these limitations that serve to maintain the status quo are preservation of the stability of marriage, the best interest of the child and the protection of the public fisc by ensuring that someone other than the state is financially responsible for the child. While biological fathers argue that they have a right to assert paternity and exercise the rights associated with it, the U.S. Supreme Court has upheld a state’s ability to deny a biological father the rights associated with parenthood when the child was born to a married woman. Michael H. v. Gerald D., 491 U.S. 110 (1989). Some recent cases are illustrative. In Pearson v. Pearson, 134 P.3d 173 (Utah Ct. App. 2006), cert granted, 150 P.3d 58 (Utah 2006), the couple had two children during the marriage. During the second pregnancy, the mother told the husband that she had had an affair and that the child was likely the biological child of another man. In spite of this disclosure, the husband agreed to raise the child as his own. The couple separated when the child was 8 months old. The mother told the biological father of her suspicions, but he did not wish to assert any claim. The mother and the biological father reunited when the child was approximately 16 months old. The biological father sought to intervene in the divorce proceedings to assert his paternity. The trial court granted his request. In spite of the fact that the mother was now married to the biological father, the Utah Court of Appeals held that he did not have standing to rebut the presumption of the ex-husband’s paternity. The court relied on a previous case that held that, in cases in which a putative father is seeking to rebut the husband’s presumed paternity, the focus must be on “preserving the stability of the marriage” and “protecting the child from disruptive and unnecessary attacks upon his paternity.” The court was not willing to affirm the lower court’s finding that stability of the marriage was no longer an issue once a divorce was filed. Rather, it looked at the broader policy that encourages a couple to remain married, particularly when the husband has knowledge of the paternity issue and nevertheless assumes responsibility. While the court did not use the term “estoppel,” it is fairly clear that it thought it unfair to deny the husband parental rights after he had voluntarily assumed them and discharged the obligations that flow from parenthood. In addition, the court also found that establishing a new parental relationship would be disruptive and unnecessary for the child. A Pennsylvania court did use the doctrine of estoppel when it held that the biological mother and father (now the mother’s husband) were estopped from seeking to establish the biological father’s paternity. In Moyer v. Gresh, 904 A.2d 958 (Pa. Super. Ct. 2006), the child had been raised by the mother and the ex-husband for eight years prior to their divorce. Some time after she married the biological father, the ex-husband filed for custody of the child. The mother and the biological father filed a motion to dismiss the ex-husband’s petition on the ground that he lacked standing to request custody because he was not the child’s father. The court held that those who mislead a child as to the identity of his father cannot later seek to disprove the fiction to the detriment of the child. Here the 16-year-old said that he wished to live with the ex-husband and the court found that the ex-husband had supported and cared for the child. At issue in both the Moyer and Pearson cases and others like them is the question of what happens to the relationship between the child and the legal father once another man has proven his paternity? In some jurisdictions, the person whose paternity was rebutted might not have standing to assert legal rights to the child. This is because the law recognizes parenthood as an exclusive status meaning that a child can only have one legal father. As a matter of fact, this was a crucial factor for the Supreme Court in the Michael H. case. But having one father does not always comport with the reality faced by children in today’s society. A Michigan court attempted to resolve this dilemma by recognizing the rights of both the biological father and the ex-husband who raised the child as his own. In Sinicropi v. Mazurek, 729 N.W.2d 256 (Mich Ct. App. 2006), the child was born out of wedlock in 1999, and the man with whom the mother was living (Powers) filed an acknowledgment of paternity at the time of his birth. The parties split up in 2001 and entered into a consent order giving them joint legal and physical custody. When the mother sought to relocate the child in 2004, Powers sought sole custody. The mother then sought paternity testing, which established that another man (Sinicropi) was the child’s biological father. She sought the dismissal of Powers’ custody action and the revocation of his acknowledgment of paternity. The court denied her request on the grounds of res judicata and collateral estoppel based on the previously entered joint custody consent order. Sinicropi then filed a paternity action, and after consolidating the paternity and custody cases, the court entered an order of filiation that recognized Sinicropi as the child’s father. It did not, however, revoke the acknowledgment of paternity that had been filed and relied upon by Powers. In essence, the court ruled that the child had one father under the Acknowledgment of Paternity Act and another under the Paternity Act. It then went on to order joint legal custody to Powers and the mother with sole physical custody to Powers, and further ordered Sinicropi to pay child support. On appeal, the court reversed the finding of paternity, stating that a court cannot recognize two legal fathers. It relied on a previous Michigan Supreme Court case, In re K.H., 677 N.W.2d 800 (Mich. 2004), in which the court held that “where a legal father exists a biological father cannot be considered even a putative father.” The court further rejected the biological father’s constitutional claims, finding that biology alone does not give a man standing to assert paternity of a child. Second limitation pertains to timing of paternity suit The second limitation, relating to the time in which a person can assert paternity, is also governed by statute and equitable principles. A man can be estopped from bringing a paternity action even when there is no other man claiming legal parenthood. In Buccieri v. Campagna, 889 A.2d 1220 (Pa. Super. Ct. 2005), the child was born in 1996 after a brief monogamous affair. The mother told the father of the pregnancy, but he asserted that he did not believe that she was pregnant. No one disputed that he was the biological father. The parties had no further communication until a chance meeting in 2000 or 2001. The father claimed that he thought the child was his based on a physical resemblance, but did nothing until 2004 when he filed a paternity action. The mother objected to the action on the basis that it was not in the child’s best interest to have the father legally establish paternity because she was engaged and her fianc�e intended to adopt the child after they were married. She further asserted that the father should be estopped from pursuing the action, as he had waited eight years to bring it. Although there was no legally recognized father, the court agreed that the biological father should be barred from pursuing his claim. The court held that, although the Paternity Act creates a statutory right to obtain blood testing to determine paternity, the right is not absolute and must be balanced against competing societal/family interests. In this case, the court found that the child was soon to be a part of an intact family and that it would not be in her best interests to have that disrupted by recognition of the claimant’s paternity. As for the father, the court held that by his actions he had forfeited his right to seek a finding of legal parenthood. Barbara Handschu is a solo practitioner with offices in New York City and Buffalo, N.Y. She can be reached via e-mail at [email protected]. Mary Kay Kisthardt is a professor of law at the University of Missouri-Kansas City School of Law. She can be reached at [email protected].

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