Monday, April 27, 2009

How Do You Hatch a Cuckoo's Egg?

Yesterday, I referenced Trumwill's discussion of cuckoo's eggs in the context of attempting to articulate the injustice of requiring child support from the cuckolded father: that for the same reason that a man shouldn't have to maintain a woman that sleeps with someone else, he likewise shouldn't have to maintain children conceived by someone else, except by consent. Trumwill ran a great symposium on what the ideal legal regime ought to be; I will now try to summarize the state of this debate and my own recommendations.

In comment #27, Sheila Tone, a family law attorney, helpfully lays out the legal standard: if a man “holds himself out as the father and accepts the child openly in his home,” he acquires the rights and liabilities of fatherhood regardless of his genetic contribution, unless the bio-father makes a legal claim against the child within a two-year window after the child's birth. (Update: In many states, the law also gives the husband a two-year window within which he can rebut the presumption of paternity.) The injustice of this standard is readily apparent to anyone not named Sheila Tone: if the man thinks the child he is raising is his, then he is the victim of fraud; and his "holding himself out" is a direct consequence of that fraud. For the law to sanctify that fraud even after it is discovered is (I believe) without parallel in any other aspect of jurisprudence.

So, what do we do? Trumwill proposes a policy offering all husbands, at the time of a child's birth, a paternity test prior to the finalization of the birth certificate. He leaves open the question of what the birth certificate should read if the father tests negative for paternity but wants it anyway, but this is a moot point: we agree that virtually no husbands who's first knowledge of their wives' infidelity is herein revealed would accept paternity. But the husband could waive the paternity test in writing, either because he trusts his wife or because he already knows the child's origins and is emotionally reconciled to being the legal father anyway.

Here's the problem as I see it, based on my familiarity with how large bureaucracies work. The paternity test waiver will be buried in a stack of paperwork that a nurse hands to the distracted father with the words, "Here, sign these." Maybe the father notices what he is signing, and maybe he doesn't, but even if he does, he's likely to be lead to believe that signing the waiver is routine, kind of like the "collision and damage waiver" that rental car companies ask you to initial. The paternity test will cost him money, unless insurance companies pay for it, and since the test is "optional" there is no reason why they should. (Update: Trumwill proposes making the test "free" -- i.e. government funded -- a point on which I would reluctantly concur.) So the father's likelihood of submitting himself to the test is inversely proportional to his trust in his wife. Thus the cruel irony: the more in the dark the husband is as to the child's true origins, the more likely he will remain in the dark by waiving the test.

Alternatively, the test could be made mandatory and universal, but this carries problems of its own. As I pointed out on Hit Coffee, the general knowledge of the paternity testing mandate would provoke many women to procure abortions at the mere possibility of a negative result. There is the issue of whether uncovering adultery in this way might wreck relationships that might otherwise be viable. And there is again the question of whether a non-father could even choose to accept paternity if the state knows it's not so. But even if a non-father is given the choice, it's a high-stakes choice made in a very narrow window. If he rejects legal paternity, he permanently devolves to the status of step-father, with very few legal rights except what the mother chooses to give him, and it opens the door to the bio-father to insinuate himself into their family life (although that door remains open anyway in some states). But if he accepts paternity, he does so almost certainly in the expectation that his relationship with the mother survives, a very expensive gamble in the face of very long odds.

The fact is that the issue of true paternity is almost never a legal issue except in a child support award in the course of a divorce. It is for this reason that I would advocate making any contested child support award contingent upon a positive paternity test or, alternatively, allowing a father to subsequently challenge a child-support award on the basis of a negative test. It is impossible to predict when a non-father will learn of his wife's deception, and the law should make allowance for this.

It is also impossible to prove when a non-father knew or suspected a child's true origins. In this vein, Sheila Tone gives us a vignette:

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.

Sheila's assumption is that the above situation would represent some kind of manipulation of the system by the non-father. I'm not convinced. The "benefits" the non-father enjoys ought to be his as long as he chooses to provide for the family both financially and in assuming his share of the "shit work", the not-fun part of bringing a crying, barfing, pooping, tantrum-throwing creature along to semi-adulthood. As long as the non-father is doing this, then I don't really begrudge him the benefit of keeping home-wrecking bio-dads away from the family.

In the course of all this, maybe he bonds with the child. Maybe that bond comes to be independent of his relationship with the mother. And maybe, in the event of divorce, he's willing to pay child support either because he really wants to ensure the child is cared for or because he merely wants to get his share of custody and visitation.

But then again, maybe the bond doesn't form. Maybe the child's mother poisons the child against him to the point that he's ready to be quit of the entire package. Or maybe he really is a callous SOB who turns his hatred of the mother on the child in the course of divorce proceedings.

Any of these iterations is possible, and I'm unwilling to turn a courtroom into a three-ring-circus trying to figure it all out. All I'm saying is that even if we assume the worst faith imaginable on the part of the non-father, the mother and child are not materially worse off than they would have been had he rejected paternity immediately, as he would have been perfectly within his rights to do.


trumwill said...

As I said in the comments, I would support the government assisting in payment of the paternity test if the man cannot afford it. Even if we don't change anything else, cost should not be the issue preventing a man from determining whether or not a baby is his. It's times like this it's helpful not to be a libertarian :).

My expectation is that if, at the time of the test being performed, the guy does not at least know the baby might not be his and hasn't figured out what he would do that the relationship will probably not survive. Otherwise, my advice to the man would be to waive parental rights, be a step-father, and if the marriage survives then look at adoption. If the marriage never really regains its footing, even if it persists like the undead, it's probably best that his relationship with the child is not codified. There are worse things to be than a step-parent.

Also, to me one of the responsibilities of being a parent is not what you do today and did yesterday, but the promise to be there tomorrow. A father that wants to maintain the right to leave at any time for any reason is not taking full responsibility.

Φ said...

Let me make a partial concession, because I agree with you that leaving legal paternity forever unsettled is not an ideal state of affairs, and I largely share your assessment of men who want to "right to leave at any time for any reason".

So . . . if a paternity test produces a negative result, and if the non-father signs an affidavit acknowledging he is aware of this result, and if he doesn't challenge his legal paternity within two years of that affidavit, then I would say that a paternity challenge at the time of divorce would be a sufficient show of bad faith to deny relief from support obligations.

But the situation I am trying to avoid is one where wife says "he knew!" and husband says "no I didn't!" and the judge has to guess who's telling the truth. The affidavit would prove he knew; but if it's not required as proof, then the man would be stuck trying to "prove a negative" and how can anyone show he didn't know something?

Now the obvious problem is that there is no incentive for a non-father to sign such an affidavit. I'm going to have to keep thinking about this . . . .

trumwill said...

In my original post, I actually said that she would have to prove that he knew. The burden of proof would be on her. The presumption would be that he didn't know.

However, the main reason I want to stress early testing is to prevent us from getting there in the first place. One of the main reasons for pushing the issue is so the man is made aware of his chance to challenge paternity, outline how long and under what circumstances he can do so, and explain what his obligations will be even if the child is not biologically his.

If, at that point he waives the paternity test, he is in effect saying that he does not care about biological paternity. If he gets a negative result and doesn't reverse the paternity, he is saying that he accepts the child that is not biologically his.

I may be open to issuing a paternity challenge in the event of a divorce. I did some poking around last night and apparently the California law is not universal and that in some states there actually is a window to challenge paternity in the case of divorce. Before stating whether or not I think that's a good idea, I would want more information on how that's worked out.

I am very skittish on the man being able to say "Oh, now that our marriage hasn't worked out, I don't want anything to do with the kid that I pledged myself to." when he either knew the kid wasn't his or declined to take advantage of his opportunity to find out. I am also concerned that allowing this sort of thing will put non-fathers at a significant disadvantage in custody hearings.