July 14, 2017 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

This Nebraska Supreme Court ruling appears to be right on the law, but there’s little else about it to content us. Indeed, about the only thing positive about the case is the behavior of the father, Erin W., who, by the way, may not be the father at all.

Erin and Charissa got married while she was pregnant. She says she told Erin the child may not be his, but, whether she did or not, Erin took up the duties of fatherhood for the child. He apparently did so enthusiastically and well. Even Charissa admitted that he’s a good father and the child views him as her father.

Their marriage didn’t last long. She filed for divorce about one year after the wedding. Charissa’s legal position at trial was strange to say the least. She asked the court for an order for genetic testing to disestablish Erin as the dad. She said she’s had sex near the time of conception with a man named G.T. She didn’t want him to be the father either, but rather wanted to keep him out of the child’s life along with Erin. She did want her current boyfriend to be the father via adopting the child. Finally, she wanted Erin to continue paying child support irrespective of whether he was proven to be the father or not. Really.

Erin opposed genetic testing on the grounds that he had always been the girl’s father and, since the law presumes a child born to a married woman to be her husband’s, the child is legally his until proven otherwise. So the issue before the trial court was whether genetic testing should be performed. The trial court ruled that it shouldn’t be because Charissa hadn’t rebutted the presumption of legitimacy. The Supreme Court upheld that ruling. It also upheld the judge’s parenting time order which was a rubber stamp of the pair’s agreed-on 50/50 split.

Now, if all we want is for courts to decide what outcome they want and rule accordingly, then this is a fine decision. After all, I want Erin to continue to be the father to the child he’s always been and wants to continue being. Because of the court’s ruling, he gets to be exactly that. That’s good for the child and good for him. What it’s not good for is the law and future cases to which the Supreme Court’s ruling may apply.

I find its ruling on genetic testing strange. To tell Charissa that she didn’t rebut the presumption that Erin is the child’s father, while also denying her the opportunity to do the one thing she could to do so is remarkable to say the least. About all she could tell the court was something like “I had sex with both Erin and G.T. near the time of conception; either may be the father.” But the courts said that wasn’t sufficient to rebut the presumption. So what would have been sufficient? That amazing 21st century thing called genetic testing by which we can know to an almost absolute certainty who a child’s father is. And it is that thing that the courts denied her. It looks like a Catch-22 to me.

Again, I’m glad Erin still gets to play the role of father, whether he biologically is one or not. But this denial of genetic testing is a sword with two edges. The next time it may be a man who’s been stuck with a child he doesn’t want and who may not be his. He may also be stuck with child support payments he can’t afford. How might he go about rebutting the presumption that a child is his without resort to genetic testing?

Of course part of the reason Charissa failed was that she didn’t play the legal game correctly. She relied on a statute that allows genetic testing only after there’s been an order of paternity which, during the original trial, she of course didn’t yet have. I suppose she was required to renew her request after the order was issued.

But allow me to argue that those procedural niceties that may well not be understood by the non-lawyers who often represent themselves in family courts should give way to more important factors. Those factors include the idea that truth is better than untruth, knowledge is better than ignorance and, above all, everyone involved – husband, wife, paramour and child – need to know the identity of the child’s father.

If Erin isn’t the child’s father and G.T. is, then all parties need to work out how best to parent the child while not excluding G.T. from her life. In that event too, the child will need to know, until the day she dies, her genetic heritage for medical purposes. Plus, to the extent that we have a public policy that adults who choose to bring children into the world must be financially responsible to them, we must ascertain the identities of fathers. Otherwise, as in this case, we end up with men paying to support a child who’s not theirs while men aren’t paying for children who are theirs.

For the first time in human history, we have the scientific wherewithal to know who the father is for every child on the planet. We should use that knowledge. Not doing so only leads to heartache in the future and confounds public policy in the present.

Speaking of public policy, the only policy cited by the Nebraska Supreme Court is that the state wants to remove the “stigma” of illegitimacy from children born out of wedlock. Earth to Nebraska! That stigma disappeared decades ago. Children born to single mothers are as common as dirt. Some 41% of all children born in this country aren’t “legitimate.” That’s about 1.8 million kids every year. Believe me, the public long ago ceased to notice or care. That may not be the way it should be, but it’s the way it is.

I’ll have more to say about this on Sunday.

 

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