When determining things like child custody and child support payments, the law generally considers what is in in the best interest of the child. I wrote a post on the late Bobvis blog about how the law should approach cases where the husband of the mother turns out not to be the father. Generally speaking, the law doesn’t care. At least not past a certain point. As far as the law in concerned, if he’s been acting as the child’s father, he becomes the legal father. This means in the event of a divorce that he can’t cease making child support payments and it means that she can’t use his lack of paternity as a reason to deny him custody or access to the child.
This strikes a lot of men as being unfair. If we find out ten years after the fact that a child is ours, we’re told that biology is destiny. If we find out ten years later that it isn’t, well biology isn’t so important after all. The counterargument is that fairness to the father (real or purported) is not the issue so much as the welfare of the child. The child did not choose to be born into that situation, after all. And it’s possible that the non-father knew. In the discussion, guys were taken to task for even considering that his rights might trump that of a child, his or otherwise. The welfare of the child trumps all (within reason, which this is).
My general sense of the issue is that both sides do have valid points. The attachment between an adopted child and adopted parent is real. If the law were to state that upon finding out that the child is not biologically his that he loses all custody rights would strike me as fundamentally unfair. The notion that, upon discovering non-paternity, the entirety of the choice of the non-father as to whether to continue or sever the relationship does seem fundamentally unfair to the child, who (support payments aside) has probably grown attached to two parents. It makes what would already be a traumatic experience even worse. All for the sake of allowing a man to save some money.
I should also say that in a good portion of the cases, a man put into this situation would gladly trade support payments for access to his putative son or daughter. Except in particular cases, I strongly believe that is the moral thing to do. Finding out that the child isn’t yours has to be heartbreaking, but your love for him or her should not be fundamentally changed by that fact. Parents love their adopted children all the time.
If I were king, I would probably still like to give the non-father more discretion than he currently has, though. I wouldn’t put all of the responsibility on the purported father to determine whether or not he is the biological dad in a timely fashion or else say that he has lost any right to object being held legally responsible for the mother’s deceit. I’m not sure that I could sign on with automatic paternity testing at birth. I don’t like the idea because of the disruption it would cause when the vast majority of the time there is nothing to be concerned about, but the arguments against it are pretty thin. It would have the benefit of giving the non-father the right, early on, to decide whether or not he wants the role and if he does then he could adopt.
The alternative might be a paternity test requirement prior to payments having to be made in the event of a divorce. In that case, the question of whether or not he knew he was not the biological father and usurped that role anyway (thus making him a party to the lie) could be brought up and if the mother could prove that was the case then he could be left on the hook. But all of that could make a traumatic time in the kid’s life even moreso. “Your father and mother are splitting up. Oh, and your father ain’t your father.”
An argument I reject, though, is the notion that the child support payments should be required on the basis not of fairness (it’s hard to argue that the cuckolded fellow deserves it… though some do make that argument), but rather because that’s what’s in the best interest of the child. It’s an argument that sounds solid (bulletproof, even) at the base of it, but it’s an argument that is frequently jettisoned in the name of practicality. In fact, rather than being based in the moral conviction it’s often clothed in, I think it’s mostly based on pragmatism. Somebody has to help the mother take care of the child. Might as well be this guy.
So when do we ignore the Best Interest of the Child arguments in favor of the rights of the parents? Sperm donation, primarily. And I mostly agree with that. In fact, I think that some of the fundamentals there ought to be expanded to cover other areas, as well. That’s going to be another post.
Addendum: In the comments, Phi points to another conundrum: What if the birth father, kept in the dark, comes back to claim what’s biologically his? This tilts me slightly more in favor of mandatory DNA testing. Ironically, the more I think about it the more the strongest argument in favor of it is “the best interest of the child”. To disrupt these sorts of things from happening down the line, test early. And maybe, at least in cases that don’t involve anonymous adoption and/or sperm donation, the right of the child to know who his or her father is.
Addendum II: Here is a good rundown of the laws in Illinois regarding paternity, custody, and a slew of other issues. I found it very instructive.
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