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.


Category: Coffeehouse

About the Author

Will Truman (trumwill) is a southern transplant in the mountain east with an IT background who bides his time taking care of their daughter while his wife brings home the bacon. You will probably be relieved to know that he does not generally refer to himself in the third-person except when he's writing short bios on his web page.

38 Responses to The Best Interest of the Child

  1. ? says:

    Here’s a legal question: in the case of a child conceived in adultery, can the biological father show up and assert rights against the legal family?

    The reason I ask is that Dan Schmidt won custody of his daughter from her adoptive family in the Baby Jessica case, after the birth mother had lied about his paternity when she put the baby up for adoption.

  2. trumwill says:

    You confused me for a minute. I was thinking “Wait, the baby that fell into that well was adopted and part of a custody battle? I hadn’t heard that!” Different Baby Jessica, apparently.

    I’m not sure what the law is in a case like that. It may vary by state. Or it may not be codified.

    What do you think that the law should be? I am sympathetic to the father as I am sympathetic to any man that has a child put up for adoption without his knowledge, but as far as the law is concerned I think I side more with the adoptive parents. An exception might be made when, as in the case with Baby Jessica of Michigan, the error is discovered right away.

    I can’t go too much into this, though, because Part II actually expressly deals with this scenario and will be posted next week.

  3. trumwill says:

    Oh, regarding cases where adoption is not at issue, that’s an even harder case (on what the law should be, I mean). My inclination is that the father would have more standing in that case. The child is in the custody not of an bystanding adoptive family, but in the perpetrator of the fraud (and her husband). As with the other case, how long the step-father has been involved in the kid’s life is a factor.

    The question is whether or not we would give the step-father the opportunity to adopt to the exclusion of the birth-father. On a case-by-case basis, it would be a question of who knew what and when. If the father knew that the child was his and didn’t care until he found Jesus ten years later, then let the step-father adopt. If he was lied to like everyone else, it’s really a tough call.

    The first novel I wrote actually deals with this a little bit, minus the fraud. Man impregnates woman and runs off. Woman marries another man who becomes defacto father. Man decides he wants a role in the kid’s life after all. Woman agrees. Husband screwed.

  4. ? says:

    I believe I have expressed support for mandatory at-birth paternity testing, but it occurs to me that knowledge of this would cause many women to compound their infidelity with abortion. So maybe a policy that, prior to naming them on the birth certificate, asks the husband if he wants a paternity test would be a better idea.

    But then . . . suppose a man accepts legal paternity anyway? He almost certainly does so in the expectation that the marriage will survive his wife’s adultery. If that assumption is wrong, should he be able later to point to his lack of biological paternity in order to free himself from child-support payments?

    My inclination is to say yes. I say this fully aware that it would give considerable power in the relationship to those men with the least propensity to bond with their legal family. But the worst he could do with this power would be to return the woman and child to where they would have been had he not accepted legal paternity.

    Yeah, I’m pretty sure I would always allow a man in this situation to forfeit visitation in exchange for freedom from child-support payments. A man whose wife commits adultery is the victim of a monstrous fraud, and I would never allow the law to legally validate that fraud.

  5. trumwill says:

    Oooh, an increase in abortions. Not only when the child is someone else’s, but also when the child might be her husband’s but she’s just not sure. That’s a game-changer. I swear, my mind changes on this subject by the minute. There really are no simple answers.

    A man definitely ought to have the right to contest paternity if that’s what he wants to do (to whatever extent that right does not exist currently). But by not making it automatic, that creates another set of problems. What do you do with the man that waives that right because he trusts his wife? Or because he knows if he asks for a test she will quite reasonably take that as an accusation of infidelity? Then, ten years down the road he gets suspicious and then challenges paternity? One could reasonably argue that he has already accepted the child regardless of paternity.

    Maybe if you had some sort of anonymous test automatically made available that a man has to actively waive to forego… but then you still have the problem of the woman who would abort the child because she doesn’t want her significant other to know that she’s been straying. No simple answers at all that don’t involve giving all of the options to the man or all of the options to the woman.

    Regarding to whether or not he should be able to later point to that as a reason to forfeit rights and responsibilities, I think that sort of takes care of itself. If the child is not his, he is legally the step-parent unless he chooses to legally adopt the child. If he chooses to legally adopt the child, no take-backs. Period.

    One of the main benefits to automatic testing is that it would force the father to state his intentions prior to the child becoming attached to him. He couldn’t just hold on to paternity only as long as it’s convenient for him to.

    At some point the man has to fish or cut bait. He has to accept the child as his or not his regardless of actual paternity (except, of course, restrictions on being able to declare the child not-his when the child biologically is). I have sympathy for any man whose wife cheated on him, but that sympathy has to have limits. I’m not sure whether the right time period is a window after birth, when he finds out (of course, how can be prove he hasn’t always known?), or in the event of a divorce.

  6. ? says:

    In the non-adultery cases you describe, I generally agree with you. My gut tells me that legal adoptions ought to be final with respect to the biological parents. If a biological father (or mother, for that matter) wants to contest an adoption, then he should do so before the fact, not after.

    I don’t really see this as too much of a hardship. The percentage of biological fathers eager to assume financial responsibility for children conceived, born, and given away without their knowledge must be pretty small.

    In the case of female adultery, my attitude towards the biological father can be pretty much summed up in the phrase “home-wrecking bastard”.

  7. trumwill says:

    I don’t really see this as too much of a hardship. The percentage of biological fathers eager to assume financial responsibility for children conceived, born, and given away without their knowledge must be pretty small.

    I’m in that group, though to my knowledge I’ve never had children without my knowledge (kinda circular, isn’t it?). Of course, if I found out today that I have a six year old child, my response would be to hit myself for failing to follow up rather than saying “How come the law let her do that?”

    There are only two people that this could conceivably have been the case with, though. One moved away shortly after we were together (though we kept in contact). The other was a case where I was unwittingly “the other man”, wherein we lost contact after I learned the score.

    Anyway, so I think I agree. You’ve definitely sold me on the homewrecking bastard.

  8. ? says:

    That next to last sentence should have read:

    The percentage of biological fathers eager to assume financial responsibility for children conceived, born, and given away without their knowledge by women with whom they have no ongoing relationship must be pretty small.

  9. Brandon Berg says:

    Or because he knows if he asks for a test she will quite reasonably take that as an accusation of infidelity?

    It doesn’t seem like it would be hard for a nurse to pull the husband aside and ask him privately if he wants a paternity test. If they don’t already have this option, it’s because the hospitals choose not to offer it.

    Regarding the “best interests of the child” argument, it’s not universally applicable. Sometimes the woman is able to provide reasonably well for the child on her own. Or maybe she remarries. Or maybe the ex-husband makes a lot of money and is being forced to contribute more than is reall necessary.

    I think succession of responsibility should be:
    1. The mother.
    2. The biological father.
    3. The state.

    As a libertarian, I’m not big on the idea of the state redistributing wealth, but if we as a society decide that we’re going to force someone other than the biological parents to pay for the kids, it should be a burden shared equally by all, not one forced on the cuckolded husband, who’s suffered too much as it is.

  10. trumwill says:

    It doesn’t seem like it would be hard for a nurse to pull the husband aside and ask him privately if he wants a paternity test. If they don’t already have this option, it’s because the hospitals choose not to offer it.

    If this is something that we all decide needs to be done, there ought to be a more formal procedure than that. A Miranda of sorts. “You have a right to a paternity test. If you choose not to have one performed you may be liable for child support payments in the future even if the child is not yours…” something like that.

    Or maybe she remarries.

    I’m not sure why this matters. Unless we’re going to assign legal obligations on the part of the step-parent. That would be a bad idea. Just as I don’t believe that a woman ought to be able to use her new husband as an excuse to keep her old husband locked out of her child’s life, I don’t think a father should be able to use a step-father to do the same. Unless everybody is in agreement, of course.

    Or maybe the ex-husband makes a lot of money and is being forced to contribute more than is reall necessary.

    I have little concern for the father who makes too much money. Some of that being passed on to the child is no-foul. At least not in and of itself. Inviting a belligerent father into the child’s life for the sake of some extra money, for instance, could be a net loss.

    it should be a burden shared equally by all, not one forced on the cuckolded husband, who’s suffered too much as it is.

    This is assuming that he is not already aware of the situation. And assuming that he doesn’t want any parental rights.

    Though this is focusing almost squarely on the “business” aspect of parenthood, (this is a message to all of us) we shouldn’t lose sight of the rest of it. Parenting is, for a lot of men, a privilege. Bonds will develop.

    The problem I have with a lot of this is that if we’re going to allow for that in the case of the not-father, that he should be able to retain parental rights even if the child is not his (because he didn’t ask to be in this situation), then we also have to allow that for the child (because neither did he nor she). It’s one thing to find out that your Dad isn’t your Dad. It’s devastating to then be subsequently abandoned by him.

    The interests of the child do not trump all, but neither are they incidental. For the same reason that a lot of not-fathers would want to remain involved in the child’s life because of the attachments, a lot of children need that. Two wrongs (the deception of the mother and the abandonment of the not-father*) do not necessarily make a right.

    That’s what makes this issue so hard, for me. It’s what makes me so reluctant to let it be all and entirely up to the father. Similarly, I’m against any sort of notion that because he got screwed that he should have the rights of parenthood without the attendant responsibilities. I would be outraged at the inverse, wherein a not-father was told that he had no custody rights because he wasn’t the father but still had the obligations because he was married to the mother at the time of conception and birth. I think Sheila has actually mentioned this happening. No one here has suggested that any man should have the rights without the responsibilities, but I wanted to throw that out there.

    It also makes paternity tests early on more desirable. The only real hitch on that which I can see is that it would result in more abortions, though that’s only a problem for the segment of the population that has a problem with that.

    * – I cite this as “a wrong” because I believe it is. It would be analogous at least to an aunt or uncle or even a step-father allowing their nephew, niece, or step-child to go into foster care rather than step up. Legal obligation or no, there’s a moral obligation there to the child and getting back at the mother is not a moral excuse.

  11. ? says:

    Similarly, I’m against any sort of notion that because he got screwed that he should have the rights of parenthood without the attendant responsibilities.

    For what it’s worth, I don’t think either Brandon or me suggested that rights and responsibilities shouldn’t come as a package. I believe our point is that, in the event of divorce, the cuckolded non-father ought to have the option to be quit of that package, regardless of what he knew when or what he had agreed to when he thought his marriage would survive.

    I appreciate the humanity that motivates your desire to bind the non-father to the package at some point. And indeed, many cuckolds sufficiently bond with their wives’ children such that they choose to accept the package. But in other cases, the adulterous wife will poison the children’s minds with her own contempt and hatred, in which case there isn’t a filial relationship for the non-father to keep. I’m prepared to let him be the judge.

  12. trumwill says:

    I wasn’t intending to say that you or Brandon were proposing that. I was just looking at what would be the logical response to the question “What if the non-father wants to be involved?” “Well, there’s nothing stopping him. He just wouldn’t be responsible for child support” I have conversations with my mind that spill out onto the page :).

  13. trumwill says:

    regardless of what he knew when or what he had agreed to when he thought his marriage would survive.

    The problem with this is that if he knew, he is guilty of fraud, too. Fraud against the child (who may have a host of hereditary conditions he may not be aware of, nevermind the mental and emotional betrayal), the biological father (whatever I think his rights out to be if he wants to re-enter the picture, I do believe he has a right to know), and the state. If he knows that the child isn’t his, the correct course of action is to be the step-father or adopted-father. Instead, you’re arguing that he gets to delay making any sort of judgment on that until the point that he’s most primed to act out of malice and spite.

    But in other cases, the adulterous wife will poison the children’s minds with her own contempt and hatred,

    Yeah, that can happen. All sorts of things can happen if you assume the worst of faith on the part of the woman. That sort of thing can and does of course happen even in cases where the man is the biological father. I think that there’s a strong argument to be made that it should be handled in the same manner.

    The important part, to me, is that she is not able to use his lack of paternity against him. One of the fears I have about making the law so that the father gets to choose is that places him in the role of “optional father”. If he has the right to sue down the road and say that he doesn’t want the rights/responsibilities of fatherhood, that makes the non-father’s case for equal (or at least as equal as a biological father’s) consideration in custody considerably weaker.

    This is particularly true if you don’t have a window within which he could sever paternity. You say that “at the time of divorce”, so I assume that you don’t favor this, but I want to throw this one out there in case anybody here does thing that the father should be able to sever at any time. If a judge knows that a non-father can relinquish paternity obligations at any time, he is going to have a very tough time ever winning custody. I know that if I were a judge I would take that into consideration.

    So what would need to happen is that he can either do it in the midst of the divorce (or within a window that opens upon him being notified). I’m concerned about leaving the decision-making to the point where the man is likely to make the least favorable decision to everybody but himself, though (and ultimately could be the worse decision for himself, too, once he gets past the anger).

    I think I’m going back to the idea of testing early. If not an automatic test, then an automatic right to a test that can he can waive only after he has been informed of his rights. If he signs the document waiving a paternity test, then he is the father regardless of whatever discovery comes later. If he declines to sign the waiver, a test is automatically done. If the test demonstrates that he is not the father, he would have the option to adopt. If he is the father, of course, then his name goes on the birth certificate.

    That way, if it’s later determined that he is not the father, you can point to that waiver and say that’s the point where he took responsibility.

    That does create a couple of problems, though. First, there is the abortion problem. I’m not sure anything can be done about that. If our goal is to reduce abortions, then the status quo is actually the most preferable. The second is that if the man knows he is not the father and waives, we still have the issue of him participating (with the mother) in the fraud against the child and the biological father.

    So maybe then run the test anyway? Argue that this is not to protect him but to protect the state’s interest and to protect the child? If that were the case, he couldn’t waive it. Would there be fourth amendment issues for that, though? Doesn’t running a DNA test on someone require some sort of warrant or subpoena? Or alternately an arrest?

  14. Webmaster says:

    Will,

    I think the oddity here is wherein the most poisonous thing to do (realistically speaking) when the “non-father” is put in the position of finding out the kid’s not his years later, is to impose a bunch of limitations to his access along with an amazing amount of financial responsibility. Realistically, what this does is enforce the emotional transference of anger towards the mother onto the kid(s) involved.

    There’s no question – we’re talking of a situation that, any way you slice it, is simply plain lousy. On the whole, though, I think that we take the supposed “good of the child” and behave in a much more short-sighted way than we should.

  15. trumwill says:

    Web,

    The law is not supposed to do that, from what I understand. A woman isn’t supposed to be able to use the argument that his non-paternity means that he should receive less consideration when it comes to custody agreements. I’m sure that it does happen, but nobody here is arguing that it should. We all agree on that. I think that even Sheila and Dizzy would agree.

    There may be disagreements as to how often that sort of thing actually happens, though, and more broadly the degree to which men are actually disadvantaged in custody arguments. However, since none of us (except Sheila) have been a party to a whole lot of child custody cases, none of us can speak with any real authority on the subject. That’s why I’m focusing more on what I think the law ought to be rather than lamenting how unfair (or unfairly applied) it is at present.

    The case that got the ball rolling on my original Bobvis post was actually an episode of The Practice, wherein a man discovered that his wife was leaving him. She then revealed that he was not the real father so if he didn’t bark and roll over on command, she would make sure that he would never see his kids again. And she said she could do that because the kids were her lover’s and not his.

    The response on the show was that legally, the actual paternity was irrelevent. She couldn’t do that. They would have loved some legal ambiguity on the subject, but according to Massachusetts State Law, anyway, there are none. So she had to try to prove that he was an unfit parent on other grounds. As far as the law was concerned, the children were legally his.

    And of course that’s what got my mind thinking on the subject and the degree to which paternity matters. I thought that the laws on the show were right. He was the father, biologically or otherwise. Then again, if we’re going to say that, it’s harder to make the case that he should not have the attendant responsibilities.

  16. ? says:

    Have you ever read Anne Rice’s novel about the early boyhood of Jesus, Christ the Lord: Out of Egypt. It has a compelling scene in which Jesus, accompanied by Joseph, is presented at the synagogue in Nazareth for the first time. In Rice’s telling, the irregular circumstances of Jesus’s conception had caused somewhat of a scandal in Nazareth at the time, and a mildly hostile rabbi insinuates that he isn’t really Joseph’s son. Joseph’s reply is that according to the law, Jesus is his son, and that is all that matters for determining Jesus’s eligibility to enter the synagogue.

    I remembered that story as I read your last comment. I will concede that there is something deeply unattractive about allowing the assumption of paternity in these cases to remain forever provisional.

    I’ll think about this some more, but right now let’s consider the effect of what appears to be your proposal: early, near-universal testing, followed by an irrevocable decision by the non-father to accept or reject legal paternity.

    If divorce stirs his “malice and spite”, being told that his wife has played the whore surely stirs his anger and bitterness, hardly conducive to a charitable frame of mind towards her offspring. Knowing that his decision will be final will put a great deal of pressure on him to reject paternity, and frankly he would be smart to do so.

    But if he does reject it, then his status is premanently reduced to that of step-father, regardless of what filial affection that may develop. While step-fathers may assume the duties of a custodial parent if the couple stays together, they have no rights under the law. This means, among other things, that the biological father will then have standing to sue for visitation or custody, and otherwise insinuate himself into their family life. If the marriage fails (as is likely), the step-father is extremely unlikely to win even visitation, let alone custody, against the mother’s wishes, and if the mother dies, then the biological father would then have a superior claim to custody regardless of the mother’s wishes.

    The bottom line is that I’m not convinced we are doing filial relationship any favors by forcing the issue.

  17. trumwill says:

    If divorce stirs his “malice and spite”, being told that his wife has played the whore surely stirs his anger and bitterness, hardly conducive to a charitable frame of mind towards her offspring.

    I suspect that in cases where the man is only just finding out that his wife cheated, he will reject legal paternity. If not 100% of the time, then 90%. I know I would.

    The waiver would be for guys that already know that the child isn’t his or believe with a degree of certainty that it is his (even though he may be wrong).

    It sounds really odd that guys would line up to be with a girl who is pregnant with another guy’s baby, but you’d be surprised. I hear about it happening not too infrequently. The guy isn’t lied to, either. On the other hand, I don’t know that the guys would sign that waiver. They’re usually not married to the mother, so they wouldn’t be on the hook for child support in any event.

    But if he does reject it, then his status is premanently reduced to that of step-father, regardless of what filial affection that may develop.

    There would be nothing to stop him from adopting the child at a later date that does not stop a lot of men from adopting their step-children. The main difference between waiving the test and accepting paternity after birth or choosing step-fatherhood and then later choosing to adopt later is that you need the permission of the biological father. If you waive, chances are he’s going to be paying child support. By adopting, you’d be letting him off the hook for that. It probably would not be that difficult to get him to sign. Unless, of course, he wants to be involved in the life of the child. In that case, his role as step-father would be appropriate and if the father got custody if the mother died, it wouldn’t be particularly outrageous.

    So the main advantage to waiving the test would be keeping the birth father out of the picture. I don’t like the father being kept in the dark, but it probably is the solution that is best for the most people, if he’s up to it.

    The bottom line is that I’m not convinced we are doing filial relationship any favors by forcing the issue.

    Maybe not. There really aren’t any good answers out of this mess. Allowing the not-father to be the dad until he doesn’t want to anymore is not good. Forcing wide open cases of infidelity wherein nobody would have been the wiser is not an attractive option. Forcing men to pay child support after having supported a child that they falsely believed was theirs for years is not desirable. We’re choosing from a lot of bad options.

  18. ? says:

    “. . . Brandon or me suggested . . . .” Did I really write that? The blogosphere needs an editor.

    ?: “But in other cases, the adulterous wife will poison the children’s minds with her own contempt and hatred.”

    Trumwill: “Yeah, that can happen. All sorts of things can happen if you assume the worst of faith on the part of the woman.”

    Full disclosure: a man very close to me was cuckolded, and this was exactly what happened. This was in the era before DNA testing, but his wife told him — indeed, mocked him before the community even — that two of his three daughters weren’t his. She also specifically, and in his presence, commanded the girls to spit on him, such was the depth of her malice, and to this day he doesn’t have the relationship with his daughters he would have liked.

    Now, this is only one example, but there are others. In the New Jersey case, in which the NJ Supreme Court upheld a child support award in the teeth of the DNA evidence, the only reason the non-father asked for the test was because the mother had told the daughter that he wasn’t her real father, and the daughter had asked him about it.

    Let’s face it: female sexuality just works differently than male sexuality. A man can have weak morals, but even an adulterous man can still love his wife even as he bridles at monogamy. I believe this to be true of John Edwards, Elliot Spitzer, and maybe even Bill Clinton. Male sexuality is not a particularly scarce resource. But a woman who strays is undergoing a whole different set of emotional processes, all of which point to a much more destructive attitude towards her husband.

    And in the event of divorce, you can amplify that attitude by a power of ten. I’ve known a number of divorced couples, and in none of them — not one — did the wife eagerly cooperate with the father’s desire to keep a relationship with his children. In several cases, I personally witnessed the mother run down the father in the children’s presence. (I never saw fathers do this.) And these were even when adultery wasn’t involved (that I know of).

    As Fred Reed once wrote, men use divorce to get free; women use it to get even.

    Now, hateful ex-wives may or may not have any bearing on the matter under discussion, but regarding them as some kind of anomaly is, in my experience, kind of underinformed.

  19. trumwill says:

    That doesn’t correspond particularly well with my personal experiences and observations. I more frequently see pity rather than malice regarding her feelings towards the man that she is cheating on. She just isn’t attracted to him anymore or doesn’t feel like she should with him or whatever.

    Men can definitely face an uphill climb getting access to their kids after a divorce. Sometimes there’s a real sense of entitlment that “their kids” are really “hers” and that for all the talk about equal parenting his input is considered more intrusion than assistance. In cases where that sort of thing occurs, though, I think that the solution is for the courts to become more involved rather than let parents bow out.

    Interestingly enough, in a statistical anomaly in more cases than not daughters end up with their father’s having primary custody. Ironically, it seems that when a man leaves his wife for someone else, he can then use the existence of the wife as proof of a “more stable household” for the kid than the woman who is now single and emotionally erratic.

  20. ? says:

    It sounds really odd that guys would line up to be with a girl who is pregnant with another guy’s baby, but you’d be surprised. I hear about it happening not too infrequently. The guy isn’t lied to, either.

    I am guessing that these involved cases where the couple wasn’t together when the child was conceived. On pain of sounding like the WKSB, it seems more to be a girl-gets-knocked-up-by-alpha-badboy-then-finds-provider-beta-for-marriage type situation, and yeah, they’re probably not uncommon.

    I knew a couple who were getting married under these circumstances, although as I recall she already had had the child, so there was never really an option for him to assume legal paternity. But I remember counseling him: screw child support, do what you can to keep bio-dad out of your life. And indeed, regardless of the circumstances under which it was obtained, I myself would never be happy with another man having a legal claim on what I would regard as my private space. That’s not to say that I can’t see the justice of it if I were to marry a divorced woman. But I wouldn’t like it.

    The point is that a whole lot rides on that tiny window during which the birth certificate is being finalized, as you are aware. Which is why I’m inclined to keep the window open. But you are entirely correct that we’re choosing among bad options. There is no end to the havoc wrecked by female adultery.

  21. Webmaster says:

    Will,

    Part of the problem is that the swing in recent years regarding the question of statutes of limitations, in person-vs-person issues (fraud, wage discrimination, etc) has begun to change to the much more sane “from the moment the crime is discovered by the victim” rather than allowing the perpetrator to attempt to hide it long enough to slip past.

    If we are going to be consistent, then the “statute of limitations” to decide whether or not to take on the fatherly rights/privileges package has to begin when Not-Dad finds out he is not the genetic parent.

    Unfortunately, as you suggest, the worst possible window (if you go for “a year” or so around discovery) is this time frame, because it’s where the anger and any divorce proceedings are most likely to come into account.

    The balance is always difficult. We’re talking about things that are quite irrational and not easy to pin down, and in which every situation is different. On the whole, though, I believe the pendulum’s currently swung too far, and that we have many policies that do more harm than good.

  22. ? says:

    I more frequently see pity rather than malice regarding her feelings towards the man that she is cheating on.

    Sh!t, Trumwill, you’re scaring me again. How many adulterous wives do you know out there in Cascadia!?! Are they really that common? I mean, I only personally know the one, and I heard about it years after it happened.

  23. trumwill says:

    If we are going to be consistent, then the “statute of limitations” to decide whether or not to take on the fatherly rights/privileges package has to begin when Not-Dad finds out he is not the genetic parent.

    I don’t think of it as a statute-of-limitations, though. So I don’t think it’s about consistency with civil statutes. I think of it merely as being a time-sensitive situation. Because of the speed at which children grow up, time is of the essence. It’s the idea of a child being left hanging in an unstable situation where a father isn’t their father and could find out at any time and has the option of leaving at any point thereafter… don’t like that. Think that decisions have to be made and stuck to. As quickly as possible.

    To take the Baby Jessica of Michigan story, for instance, I would suggest that the birth father needs to act quickly not for the sake of the other parents, but rather so that any decision can be made before it gets too disruptive to the child. If the father found out six years later and wanted to recoup the baby, I would tell him SOL even if he acted immediately after finding out.

    So that’s why I’m generally in favor of getting all of this out in the open as early on as possible. Let testing either be done or let the father announce once and for all that he will take care of this child whether it is his or not.

    -{This comment was modified by its author}-

  24. trumwill says:

    I am guessing that these involved cases where the couple wasn’t together when the child was conceived.

    I don’t typically ask in-depth questions like that, but I’d imagine that you’re right. As I said, I expect that in cases of infidelity the father would not sign the waiver. Except, of course, when he doesn’t know and trusts his wife anyway.

    On pain of sounding like the WKSB, it seems more to be a girl-gets-knocked-up-by-alpha-badboy-then-finds-provider-beta-for-marriage type situation, and yeah, they’re probably not uncommon.

    In the cases as they’re described to me, it doesn’t sound much like the new guy is more a provider than the old. He’s just next dude to come around we’ll see if this one takes.

    Sounds like you’re not an ideal candidate for step-dad. 🙂 I don’t know how well I would do in that role. It would depend on if I came into it with any kids. Psych-evo folks would have pleasure in me pointing out that if we’re going to be taking care of her kid, I would want us to have a kid of mine in relatively short order. I don’t think I could do what my ex-worker Simon and Tony did, being a step-father without much hope for fatherhood (though Tony belatedly got that).

    Sh!t, Trumwill, you’re scaring me again. How many adulterous wives do you know out there in Cascadia!?! Are they really that common? I mean, I only personally know the one, and I heard about it years after it happened.

    Wives? Not so many. Just one off the top of my head, my former sister-in-law. She wasn’t what I was thinking of. Not sure what she was thinking at the time other than that the guy she was sleeping with was rich and my brother was not.

    I was thinking of committed couples. That could be a crucial difference, though, if women that cheat on their long-term boyfriends are a different sort than those that cheat on their husbands? These are also stories of people in their early-to-mid-twenties, so what it takes to make cheating occur there and what it takes to make a 30-something woman cheat could well be two different things.

  25. Sheila Tone says:

    Here’s a legal question: in the case of a child conceived in adultery, can the biological father show up and assert rights against the legal family?

    In California, he has to make his legal challenge within three years. There is a legal presumption that any child born into a marriage is the child of the husband. One way to rebut the presumption is through a DNA test, but it must be done in that time period.

    If we find out ten years after the fact that a child is ours, we’re told that biology is destiny.

    If you’re talking about seeking support, there may be a time limit on this. I wouldn’t hear about those cases. They’re probably rare — if a woman is going to name a dad for purposes of welfare/suport, she probably won’t wait 10 years.

    Regarding the converse (guy finds out at age 10 a kid he thought was his, isn’t), I say so what? He’s been acting as the father, and he’s enjoyed the rights and privileges of fatherhood. It’s his kid, biological or not. With the rights and privileges come the responsibilities.

  26. Sheila Tone says:

    Will, may I ask where you get the stories you’re basing your opinions on? You’re an educated professional in your early 30s, and it seems odd to me that you’d have witnessed many custody battles in your social circle. I sure haven’t. Most of my information comes from cases for which either I or my husband have provided legal counsel. So far, I have no close friends or family members who’ve divorced and fought over custody.

    My brother, a divorced programmer, is lately full of angry bitter stories about men getting screwed by evil women. I can’t figure out where he’s getting them.

  27. Sheila Tone says:

    These are also stories of people in their early-to-mid-twenties, so what it takes to make cheating occur there and what it takes to make a 30-something woman cheat could well be two different things.

    Nah, it’s probably boredom for both groups. In my mind, there’s a HUGE moral gulf between just “cheating,” and getting pregnant with someone else’s kid, having it, and passing it off as your husband’s!

    Most women don’t have that many kids. In the old days, when we were pumping out one after the other without reliable birth control, it may have been more common to have a cuckoo’s egg in the nest.

    Here’s the typical situation I see in my job: Guy and woman have a few kids together; they may be married, maybe not. Sometimes they fight and spend periods of time apart. They have sex with other people during these breaks. Eventually they get back together, and he’s the recognized head of the household. He suspects — and she often tells him — he may not be the bio dad of one of the kids. He makes the choice not to make it an issue.

    He gets some benefits from not making it an issue. One benefit: He doesn’t want that other potential dad hanging around. He probably hates the guy. Or, he just doesn’t want to complicate things.

    Then when they split up for good some years later, he suddenly takes issue with paternity due to his desire to reduce support obligations. NOW he wants a paternity test. But he’s been acting as this kid’s dad for years. The kid thinks he’s the dad.

    If he’s allowed to skip out on the kid now, the child and mother have acted in detrimental reliance for years on this guy’s holding himself out as the father. “Holding himself out as the father and accepting the child openly in his home” is the legal standard.

  28. trumwill says:

    Will, may I ask where you get the stories you’re basing your opinions on?

    Hmmm… I don’t think I’ve been echoing the “men get screwed in custody battles and divorce” line, have I? I haven’t intended to. As I said before, I’ve seen a at least a couple of cases where the father got primary custody. The cases where the father is out of the child’s life are cases where it was pretty voluntary.

    As to where my second-hand experience comes from, generally from peers whose parents got divorced. Also some cases of hearing women talk about baby-daddies intruding into their lives having opinions of their own about seeing the kid and whatnot. Notably, though, those are cases where the couple was never married.

    Most of these opinions are influenced by the law as I understand it. I am, of course, open to being corrected.

    Here’s the typical situation I see in my job: Guy and woman have a few kids together; they may be married, maybe not. Sometimes they fight and spend periods of time apart. They have sex with other people during these breaks. Eventually they get back together, and he’s the recognized head of the household. He suspects — and she often tells him — he may not be the bio dad of one of the kids. He makes the choice not to make it an issue.

    In cases like that, I agree with you. That’s why I think it’s so important whether or not the father knows. If he does know, then he’s actively taken part in it all and can’t do take-backs later. That does seem fair.

    “Holding himself out as the father and accepting the child openly in his home” is the legal standard.

    I don’t like the idea that someone that has held him out as such because he was deceived and lied to should be held to an equal standard as one who is the biological father and did it because he had to or alternately did so after deciding that he wanted the child to be his regardless of paternity.

    That’s why I tentatively favor more early testing or a (suspected father) being told his rights in regards to a paternity test and having to take deliberate action to waive it. That way, if he takes that action, we have something to point to as the reason that moment that he knew his rights and took his responsibilities come-what-may and he can’t back out. In the cases where the father is in on it, which you say is the norm, then he can’t argue later that he had no way of knowing. And a father who is suspicious and does not want to take responsibility for a child that is not his has a clear avenue to get this settled.

    Right now most men don’t really know what the law is. They don’t know what their rights are regarding paternity tests and don’t know that “acting” as the father means that he is defacto adoption the child if it isn’t his. More disclosure about this and deliberate action being required on the part of the father seems preferable to the status quo.

    Regarding the converse (guy finds out at age 10 a kid he thought was his, isn’t), I say so what? He’s been acting as the father, and he’s enjoyed the rights and privileges of fatherhood. It’s his kid, biological or not. With the rights and privileges come the responsibilities.

    Because he may have been doing so out of a sense of responsibility that he was tricked into. He did not choose to take care of another man’s kid. He chose to take care of his own. His biological child.

    Maybe it’s one of those male/female things that make this sort of thing hard for a woman to relate to because there’s rarely any doubt in regards to a woman’s maternity. She can’t be tricked when it comes to this. She can also get out of having a child she doesn’t want if he lies about contraception. This may be at least partially an object of the asymmetrical power (and responsibility) that women have over men in regards to procreation.

    But biology is very important. A child that is biologically ours can make us become parents when we don’t want to and we have no “out”. So then to be turn around and told that in cases where you’ve been hoodwinked that suddenly biology no longer matters… this angers even among the most fair-minded of a lot of this.

  29. Sheila Tone says:

    That’s why I tentatively favor more early testing or a (suspected father) being told his rights in regards to a paternity test and having to take deliberate action to waive it. … And a father who is suspicious and does not want to take responsibility for a child that is not his has a clear avenue to get this settled.

    A man doesn’t have to sign paternity papers at the hospital, which is one way he gets designated the father. If he’s married, there is the presumption even if he doesn’t sign the papers. But most of the men this happens to are not married at the time of birth.

    Probably one reason I just can’t get excited about your scenario is because I don’t think it happens much. You and Phi are envisioning this happening to guys like you, with women like your wives.

    Right now most men don’t really know what the law is. They don’t know what their rights are regarding paternity tests

    In my extensive experience, even very unsophisticated men know what paternity tests are. They’re not afraid to demand them.

  30. Sheila Tone says:

    A child that is biologically ours can make us become parents when we don’t want to and we have no “out”. So then to be turn around and told that in cases where you’ve been hoodwinked that suddenly biology no longer matters… this angers even among the most fair-minded of a lot of this.

    Will, it’s well-established that people can and do bond with children who are not biologically theirs. That’s the whole point of adoption.

    If the guy finds out he was “hoodwinked” 10 years later, he’s still had that 10 years of fatherhood and bonding. It doesn’t excuse her deception, but it doesn’t make him any less the child’s father.

    Being asked to waive a DNA test at birth wouldn’t help the men you’re describing. They have no reason to suspect they’re not the father. Why would they spend the money for a DNA test and insult the mother?

    Hmmm… I don’t think I’ve been echoing the “men get screwed in custody battles and divorce” line, have I? I haven’t intended to.

    No, although Phi has. I wasn’t challenging you based on your opinion, I was just wondering how it was either of you got your experience in the subject. Phi especially, since he seems to be pretty religious and it seems odd he’d know many divorced/adulterous people.

  31. trumwill says:

    A man doesn’t have to sign paternity papers at the hospital, which is one way he gets designated the father. If he’s married, there is the presumption even if he doesn’t sign the papers. But most of the men this happens to are not married at the time of birth.

    Then maybe the solution is only a minor alteration. Prior to signing the birth certificate, he is given an explanation of his rights and responsibilities if he signs it.

    Probably one reason I just can’t get excited about your scenario is because I don’t think it happens much. You and Phi are envisioning this happening to guys like you, with women like your wives.

    Well, not like our wives. But with the sort of girl that we could have married if we had been less careful and fortunate :).

    In my extensive experience, even very unsophisticated men know what paternity tests are. They’re not afraid to demand them.

    Yeah, but criminals (and anybody that watches TV) knows that you have the right to remain silent and to an attorney. That doesn’t mean that reminding them of their rights at specific times is not a really good idea.

    And they may know that they can have a test done, but they don’t know that if they sign the birth certificate and later discover (or want to use the fact that) that they are not the father that they don’t have the right to do that. That it’s a binding contract that’s not easily unbound. I didn’t know some of these things until I was in my mid-twenties.

    Will, it’s well-established that people can and do bond with children who are not biologically theirs. That’s the whole point of adoption.

    And I’m sure this would be the case a good portion of the time. I suspect that if I’d been hoodwinked, that I would be more worried about my non-paternity being used against me in custody hearings (in the event of a divorce) than I would be interested in using it as a loophole to evade responsibility.

    But it doesn’t always happen. Particularly if the man was unenthusiastic about having the child to begin with but was “doing his duty”.

    Being asked to waive a DNA test at birth wouldn’t help the men you’re describing. They have no reason to suspect they’re not the father. Why would they spend the money for a DNA test and insult the mother?

    Anonymity would be a part of this. Anyway, there’s having no reason to suspect that you’re not the father and having absolutely no reasons to suspect. The trust relationship with my wife is such that I would not doubt for an instant that any child she becomes pregnant with is mine. In other cases? They’d get the benefit of the doubt, but if you point out the laws that tell me that I’m on the hook don’t care if it turns out that I’m not the father… I might get the test done anyway even if I’m relatively certain and don’t have any specific suspicions.

  32. ? says:

    Phi especially, since he seems to be pretty religious and it seems odd he’d know many divorced/adulterous people.

    Adulterous people, no. Which is why in comment #22 I was surprised that Trumwill knew so much about it. :-O

    With divorced people, they were often ones that came to the church after having exhausted the possibilities of a non-religious life, if you get my meaning. It was from among these that I obtained the data for comments #18 and #20.

    As far as the frequency of cuckoo’s eggs are concerned, the cases that have been litigated are that many too many.

    And I don’t personally have to be in the victim class to recognize an injustice when I see it. Just because something happens to poor people doesn’t mean it can’t win my sympathy.

  33. Sheila Tone says:

    It’s not just about being poor, Phi. It’s about being irresponsible.

  34. Sheila Tone says:

    It’s not just about being poor, Phi. It’s about being irresponsible.

    Meaning, I think your scenario is a bogeyman. It’s amazing that you’d posit female adultery is more morally culpable than male adultery, by the way. It sounds as if your views have been formed after listening very selectively to some unreliable reporters (angry men from failed relationships, coming to Jesus).

  35. Sheila Tone says:

    Anonymity would be a part of this. … They’d get the benefit of the doubt, but if you point out the laws that tell me that I’m on the hook don’t care if it turns out that I’m not the father… I might get the test done anyway even if I’m relatively certain and don’t have any specific suspicions.

    There’d be no way to do it without mom knowing. One problem is you need the baby’s DNA sample, not just the man’s. So you’d need her authorization to take the sample from the baby. Also, she’d find out while you were waiting six weeks for the DNA results before you signed the papers. And she’d find out when she saw the insurance bill for the test.

    Unless you’re proposing a massive, government-funded program of free automatic DNA tests at all births unless the father doesn’t waive …

    A better explanation of rights can’t hurt. Problem is, the population we’re targeting isn’t known for careful reading.

  36. Peter says:

    Will, may I ask where you get the stories you’re basing your opinions on? You’re an educated professional in your early 30s, and it seems odd to me that you’d have witnessed many custody battles in your social circle.

    I’ve heard of a couple custody battles over the years, a co-workers’s cousin, that sort of thing, but none involving anyone I’ve known personally. Custody’s usually been among the less contentious issues in most of the divorces I’ve known.

  37. ? says:

    It’s amazing that you’d posit female adultery is more morally culpable than male adultery, by the way.

    Actually, I had this discussion with Mrs. ? just yesterday. I realize that entering into this kind of which-is-worse analysis inevitably sounds to a woman like an apology for male adultery. No: both are equally forbidden by the 7th Commandment.

    However . . . as I explained in comment #18, and in view of the entire discussion we are now having, the effect of the adultery, and what it says about the adulterer’s attitude towards the marriage, differs markedly for men and women.

    It sounds as if your views have been formed after listening very selectively to some unreliable reporters (angry men from failed relationships, coming to Jesus).

    Ironically, just the contrary: my church-based social group usually had the distaff end of the divorced pair, and these were much more eager to talk about what a so-and-so their ex-husbands were, and how they really didn’t deserve to see their kids ever, ever. In contrast, I knew few divorced men, they seldom spoke about their divorces, and when they did it was usually with a sense of personal guilt, as in, “How could I have let my marriage fail?”

    But you know, that’s really a story you should have asked me about instead of just asserting its opposite as a debating strategy.

    Frankly, listening to these women was a real challenge for me. I really had to ask myself the extent to which I owed them my insight into their own moral shortcomings. For better or worse, I ultimately chickened out.

  38. trumwill says:

    So you’d need her authorization to take the sample from the baby.

    While I don’t have any doubt that this is the case, I am skeptical that it should be. I’m open to being convinced as to why this shouldn’t be an exception to the rule that applies to this.

    Also, she’d find out while you were waiting six weeks for the DNA results before you signed the papers.

    Six weeks? That’s longer than the couple places I poked my head. But let’s say six weeks. Allow the man to have his name removed from the birth certificate within the first six months if he can demonstrate that the child is not his. That way, he can sign the document and then have the test run.

    The money is a bit more problematic. Given the stakes involved, I wouldn’t be opposed to the state picking up the tab in cases where the father can’t afford to pay in cash.

    Or a government-funded program. Seriously, whether we change anything else or not, I believe that if a man has reason to believe that a child is not his, lack of funds should not be the reason that he does not find out.

    A better explanation of rights can’t hurt. Problem is, the population we’re targeting isn’t known for careful reading.

    We’re targeting more than just the irresponsible loser-types. We’re targeting people like me when I was eighteen and had more idealism than sense. And people that mean well by taking on paternity of a kid that isn’t theirs but doesn’t realize the irreversibility of it.

Leave a Reply

Your email address will not be published. Required fields are marked *

If you are interested in subscribing to new post notifications,
please enter your email address on this page.

Espresso


Recent Comments


Queenland

Greetings from Stonebridge a fictitious city in a fictitious state located in a tri-state area in the interior Mid-Atlantic region. We're in western Queenland, which is really a state unto itself, and not to be confused with Queensland in Australia.

Nothing written on this site should be taken as strictly true, though if the author were making it all up rest assured the main character and his life would be a lot less unremarkable.


Hit Categories


History Coffee