It may be one of the oldest and strongest presumptions in the Law, but it seems to be time for the Courts to wake up to the reality of modern living and the complicated interpersonal relationships we weave. There were, no doubt, good social reasons why, in the past, the Courts were protective of the apparent “legitimacy” of children. Being known as, and being called, a bastard had a much more devastating impact on a child than it would today. Now it is more of an general insult rather than a direct expression of a person’s parentage. However, it is becoming less and less accurate that all children born within the dates of a marriage, even while the spouses reside together, are the children of the husband. As more and more children are born to unmarried mothers, and to families whose living arrangements are more fluid than remaining living with the father of the children, it is becoming increasingly more important to acknowledge the biological ties than to turn a blind eye in favor of a legal fiction.
I came to an understanding of the real meaning of the phrase that is the title of this article when my son, was around twelve and I told him to do something. He challenged me with a response that asked why he should do so. My response was the ultimate parental answer, “Because I said so, and I am your father”. His quick response was, “That’s just what Mom tells you”. Suddenly, the phrase came to mind and I appreciated the full meaning. There are witnesses, usually, to the birth, so we know who the mother is, but, hopefully, no witnesses to the conception and continued exclusive sexual conduct to eliminate any possibility that someone other than the purported father is the biological parent.
Of course, it is important to not have the government, through the Courts, intrude into the family relationships and to impose something on a family that is functioning well and is intact. However, where all parties acknowledge the possibility/probability of someone other than the husband being the biological parent, there are good reasons to have that knowledge known and the resultant rights and responsibilities attend. Even where one or two of the parties is/are not in agreement, it can be very important to permit the DNA testing to determine the biological parentage. If the spouses’ marriage is a matter of abuse and neglect, has a history of being “intact” with periods of volatility and separation, then the Courts should be permitted to “pierce the marriage contract veil” and permit the testing. As it stands now, the living together of the spouses is tantamount to completely precluding the alleged parent from asserting his rights.
The knowledge could have a devastating impact on a family that believes, or at least the husband believes, that the child or children are biologically the husband’s. This is particularly true where the husband has developed over time a loving and bonded relationship with the child or children. We all need as many people as we can gather that actually love us and care about us, regardless of their biological connection to us. As a loving stepfather, I believe that should not be compromised! However, there are several good reasons why the Commonwealth has an interest in getting to the reality of the situation.
The most obvious, of course, is the issue of genetically transmitted diseases and disorders. A child, and its parents, should be aware of all of the possible issues that may arise in childhood or adulthood. A proclivity or sensitivity to alcohol poisoning, is one such issue, but there are disorders, susceptibility to certain diseases, or physical difficulties that can be passed through DNA that may need to be monitored throughout the child’s life that should be known. Knowing the medical history of the birth parents can be instrumental in anticipating difficulties and resultant quick action can literally save lives. The Commonwealth has already acknowledged this as such an important issue that upon the conclusion of an adoption a notice is required to be sent to the biological parent whose rights have been terminated to inform them that they may deposit such medical information with a registry of the State’s that can be made available to the adopted child. There is no reason why such should not be available for the children of all parents of whom the child may have little to no knowledge or ability to contact.
There have been inroads into this presumption, but they all require a non-intact family unit in the mother’s living situation. Given that Court civil records are available in most counties on-line, the use of initials in the captions of cases brought to establish the parentage should help to protect from prying eyes, particularly where it turns out that the father is the husband. However, when the caption includes the names of the parents, and then initials and age of the child only, confidentiality seems rather opaque.
A recent case has come down from the Pennsylvania Supreme Court regarding the obligations of a step-parent who has acted in the place of a parent, in loco parentis. In that case, the Court ruled that such step-parents can be required to pay support for the child or children. In the mid-1970's the Superior Court set precedent in permitting step-parents in such positions to have regular and Court-ordered contact with their stepchildren. The Court, by inference, is taking steps to reflect the reality of modern living and that the traditional mother-wife/fatherhusband model is not as commonly found as before and that responsibilities go along with rights. Here the Court would be acknowledging the responsibilities of the person who actually has an obligation to assist in the support of a child he helped to produce.
All of this article has focused on the child and the family’s rights to not have intrusions into it that may cause it to dissolve. However, the biological father’s rights must also be a factor in the consideration of this issue. I have encountered fathers who, contrary to the stereotype, want to step up, meet their responsibilities and have a life-long and bonded relationship with the child or children they have helped bring into this world. To ignore or dismiss his rights and feelings, as well as depriving the child of such relationship, is not a recognition of reality, and abrogating his rights as a father. There has been an effective movement regarding father’s rights, and the Courts have been taking a more active role in protecting those rights, as well as enforcing the obligations that attend to the birth of a child.
In custody cases, the Courts have been very clear that the over-riding consideration is the best interests and welfare of any child involved. This presumption ignores this vital aspect. I realize that it is assumed that the continuation of a loving and supportive relationship is a factor in such best interests, and a balancing of all of the competing the interests may be necessary. However, an irrebuttable presumption does not permit such analysis. Not only from a medical standpoint, but from psychological and emotional aspects, it may very well be in the child’s best interests to know its exact parentage. For it is truly a wise child who knows who his/her father is.