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Tuesday, December 27, 2005

Sucker "Fathers"

In Findlaw today, Joanna Grossman tries to defend a Florida court that is forcing an ex-husband to pay child support for a child conceived by his wife's extra-marital affair.  Here are the facts of the Parker case:

Richard and Margaret Parker married in 1996, and Margaret bore a child in 1998. When the couple divorced in 2001, the court awarded custody of the child to Margaret and ordered Richard to pay $1200 per month in child support.

When Margaret sued two years later for unpaid child support, Richard subjected the child to DNA testing and discovered that he was not the child's biological father. He thus filed an independent suit to disprove paternity, and to seek damages for what he claimed was his ex-wife's false representation that he was the child's father.

In that suit, he alleged that Margaret had known all along he was not the child's father and had purposefully concealed that fact from him. He asked a Florida court to force her to pay him damages to compensate for his past and future child support obligations.

The trial court dismissed Richard's petition, and, this month, as noted above, a Florida appellate court affirmed. As a result, Richard remains the child's legal father, with an obligation of support - and will not receive damages from Margaret for the value of his past and future child support payments.

Here's a quick taste of the reasoning:

The approach in Parker is consistent with the modern trend. That trend gives the father some time to disestablish paternity -- influenced by technology's greater ability to prove parentage. Yet, without disproof of paternity presented within the legally-set time period, the modern trend remains faithful to the traditional interests in presuming marital fidelity, protecting the relationship (both emotional and financial) between parents and the children they have treated as their own, and honoring the finality of judgments.

Here's Professor Grossman's conclusion:

While it is easy to see Richard's side of the story here, let's not forget another party's side: As the Parker court noted, disestablishment of paternity might satisfy Richard, but would likely also trigger "the psychological devastation that the child will undoubtedly experience from losing the only father he or she has ever known."

I'm underwhelmed.  Maybe I'm not nuanced enough in my thinking but I think we owe it to Richard to allow him to stop supporting some other guy's child, a product of his former wife's infidelity.  Unless he knew the child wasn't his and agreeed to support it anyway, I have little sympathy for the former wife and her child; I take it she knows the real father -- and can get support payments from him.

Posted by Ethan Leib on December 27, 2005 at 02:31 PM in Article Spotlight | Permalink

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Comments

Anyway, isn't the wife guilty of defrauding her husband here? Seems like a crime to me, and worthy of jailtime. Poor little bastard...

Posted by: Marty | Jan 5, 2006 7:56:45 PM

Has this sort of ruling EVER happened to a woman? I thought not.

So a pregnant woman can kill her baby regardless of who the father is or what he thinks about it, or, she can hold another man responsible for the child, regardless of who the father is or what he thinks about it.

Is there ANYTHING comparable to this, available to a man? I thought not.

Posted by: Marty | Jan 5, 2006 7:52:43 PM

The line up of the Court was interesting tooThere's a brief discussion of how that lineup emerged in Edward Lazarus' book Closed Chambers.

Posted by: Simon | Dec 30, 2005 5:01:55 PM

Thank you, Simon. I did not know about the case. The line up of the Court was interesting too.

Posted by: nk | Dec 30, 2005 8:37:37 AM

Let's look it another way. You have a child which you love very much. One, two, three or maybe four years after it's born you get a lawsuit from someone claiming to be its father by virtue of at one point having had an adulterous affair with your wife and demanding visitation or even custody.Michael H. v. Gerald D, 491 U.S. 110 (1989), right?

Posted by: Simon | Dec 29, 2005 11:09:02 PM

This is one of those tricky things to determine, not least because I have no idea what Florida state law says on the matter. On an ethical level, I see some strong validity in both what is said by "txpublicdefender" and by "That Lawyer Guy." Tentatively, it seems to me that responsibility should follow paternity, but I don't know if that's what Florida does.

I suppose my question is to analogize it to something else, something in which human drama isn't an issue. Suppose your state has a statute of limitations that says, all bets are off after a year. If you have an axle replaced on your car, and the company knowingly fits a bad axle, you pay them from a presumption of good faith. If you find out thirteen months later that they fitted a bad axle, can you then recover damages against the company which fitted the axle, for being a bad actor if nothing else?

I guess the obvious answer is, "it depends on the terms of the statute," but if we devoid this case of its human angle, can it be analogized to something where we don't have to wrestle with the ethical problems, and thus reach a more formal conclusion?

Posted by: Simon | Dec 29, 2005 10:55:34 PM

I agree that it would be disturbing if a man abandoned a child he had helped raise, simply because of the lack of a biological connection. And I also agree that a man's parental rights should not be terminated simply because it is discovered that he is not the biological parent.

However, I do have a problem with the presumption of fatherhood in marriage, from the point of view of the "real" father. As far as I am aware, the mother of that child could later go to the DCSS and have child support collected from the real father on the basis of a paternity test. If we are going to expect him to support the child financially, why should he not be allowed to be a parent? I'm not buying the judicial efficiency argument on this one - paternity tests are easy and quite common now.

Again, if the best interests of the child are really what is guiding the court (and we know this isn't always true), I think it is pretty well established that children who have fathers active in their lives are generally better off. If a father is dead set on not being in the life of a child that they discovered is not their biological child, making them pay support is not going to fix that - in my opinion, it may make it worse.

Also: "The kid was born. It has to eat. If the [father] who made the mistake of marrying his . . . mother doesn't feed it, the taxpayers will have to or it will starve to death." Hardly. Child support can be collected from the biological father. Also, if I had a child and my husband left and didn't pay support, I would be able to feed my child without welfare, thankyouverymuch. I'm actually in a much better position to support a child than my husband, and with more women graduating from college than men, I think you will find this to be true for many more women in the future...

Posted by: Bev | Dec 29, 2005 10:47:03 PM

Thank you ckb.

Posted by: nk | Dec 29, 2005 9:01:05 PM

Several years ago, I represented a man who had been divorced six years earlier. There was an seven year old daughter conceived during the marriage. The mother unilaterally had her daughter and longtime boyfriend and current husband genetically tested and it was confirmed that my client was not the father. The mother then went to court to terminate my client's paternal rights. Notwithstanding the fact that he was not the father, my client had 7 years of emotional vesting with the child and she with him. The court properly denied her petition and chastised the mother for tainting the daughter's relationship and actually enlarged my client's placement periods. It just demonstrates that every case like this needs to be evaluated based on the individual circumstances.

Posted by: ckb | Dec 29, 2005 5:38:13 PM

This is the old rule (I don't want to say common law), that everyone is estopped from alleging the bastardy of a child born in wedlock except in a divorce proceeding on the grounds of adultery, and in my opinion it is a good one.

1) Let's look it this way. The kid was born. It has to eat. If the ridiculous cuckold who made the mistake of marrying his ____ of a mother doesn't feed it, the taxpayers will have to or it will starve to death. It's not the kid's fault that it was born. The balance of equities says the cuckold should feed it. It is his penalty for marrying a _______.

2) Let's look it another way. You have a child which you love very much. One, two, three or maybe four years after it's born you get a lawsuit from someone claiming to be its father by virtue of at one point having had an adulterous affair with your wife and demanding visitation or even custody. Do you want to go through the whole ______ of proving paternity?

The estoppel rule is the best rule in my opinion. Most jurisdictions have moved away from this -- making the estoppel rule only a rebuttable presumption. It may be a good development in light of my first example but a bad one in terms of my second one.

I confess that my thinking is colored by my early years growing up on a farm. If my cow has a calf it's mine regardless of whose bull jumped over the fence.

Posted by: nk | Dec 29, 2005 12:07:06 AM

Thinking about it ethically, and not strictly legally, I wonder what kind of man would want to disown a child he had raised and treated as his own during his marriage, just because he found out that the child was not his biological offspring. I find it pretty appalling, actually.

On the stricly legal side, I don't have a problem with a state having a rule that if a father wants to challenge paternity, he needs to do it during the original proceeding seeking support. Leaving it so open-ended, even with a "discovery rule," I think does make things way too uncertain for the child. It seems that the father's real complaint is that he was wronged by his wife.

And related to the way the courts deal with this issue are cases like one I read about a few years ago involving a man who had a relationship with a woman who was separated. The woman became pregnant. Before the child was born, she left her new man and reconciled with her husband. The biological father of the child sought to establish legal paternity--there was no dispute of biological paternity--and was utterly rebuffed by the courts because of the state's presumption that a child born to a wife is legally the child of the husband. It was an absolute, irrebuttable presumption. Here was a father who wanted to support his child, financially and emotionally, and the courts said, "Tough."

Posted by: txpublicdefender | Dec 28, 2005 2:19:18 PM

The trend in Family courts continues to be what is in the best interest of the child. THis is of course a paternalistic view. We lawyers and the "experts" that we employ have no idea what is in the best interest of the child. This is not the same as saying a kid shouldn't drink or do drugs or have sex. This is about emotions and humans have many different emotions. Will the child gather from the way Richard acts that he is not happy? Will that be good for the child. Are we willing to ban the Biological Father from ever seeing or approaching the child because finding out that way will be devestating. Is the Opinion published? can the kid use a computer?
What does make some sense is we know what is in our clients best interest. In this case Richard has been ripped off not once but twice, As cuckold and sugur daddy. The statute of limitation should be measured from the finding out about the Fraud. Men who have not fathered a child should not have to pay for them. Men who become fathers after being lied to by mothers (assuming same can be proven by clear and convincing evidence) should have the choice as to whether they want the child as a custodial parent unless it is proven by clear and convincing evidence that they are unfit. Garunteed that changing some of these rules will dramatically cut down on unwanted pregnancies and cut down the family court calendars at a great savings all of us taxpayers.
One more thing. This child has a right to know and will want to know who her "real" daddy is. The answer is that Richard is her real daddy, IT is just the name of her real father we don't know.

Posted by: That Lawyer Dude | Dec 27, 2005 10:15:25 PM

"As the Parker court noted, disestablishment of paternity might satisfy Richard, but would likely also trigger 'the psychological devastation that the child will undoubtedly experience from losing the only father he or she has ever known.'"

I fail to see how forcing a person to pay for a child they did not create will encourage them to remain active in that child's life, in a positive way.

Posted by: Bev | Dec 27, 2005 8:53:39 PM

Why not apply the discovery rule to suits like this? Or at least equitable tolling?

It seems unnecessarily harsh to place the burden on the husband to ferret out his wife's knowing infidelity, especially if there's no reason to suspect she's been cheating.

Posted by: Stephen Aslett | Dec 27, 2005 7:13:31 PM

Ethan:

I think I agree with your assessment, but I have one wrinkle to throw in there. At some point, the legal system demands finality. We have statutes of limitation; we have appeal periods; and so forth. The point is, you snooze, you lose.

In this case, the value of such "finality" is that it incentivizes the "father" to figure these things out in advance and also reduces the uncertainty for all parties.

Now surely there could be some kind of tolling mechanism, for instance if paternity testing were unavailable. But if paternity testing is so simple (and it certainly seems to be), why not incentivize people to do it earlier rather than later?

Still, in the end I think I agree with you, Ethan. I haven't read the opinion, but maybe the guy had no reason to suspect that his wife had an affair and only later had any reason to perform a paternity test. Do we really want to incentivize people to go around having paternity tests on all of their putative children? That seems a little weird.

Anyway, this problem could be resolved with a little legislative action.

Posted by: Hillel Levin | Dec 27, 2005 4:43:44 PM

Is there a way Richard could sue the real father for child support to him? I'm sure it would involve some serious back-flips to pull it off, but I'd love to see that one...

Posted by: Dave! | Dec 27, 2005 4:09:22 PM

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