Paternity: If you haven’t tried it, don’t knock it

This job is not as easy as it looks.  For weeks I have been agonizing whether to talk about unlawful searches and seizures, paternity, wrongful termination, tax-free disability benefits, or some other equally fascinating subject you simply cannot live another moment without learning about.

The executive decision has been made.   Since most of us have had a father at one time or another, or at least know someone who has had a father at one time or another, I have cast the tie-breaking vote in favor of the much maligned and often misunderstood subject of paternity.

So have another sip on that double decaf almond latte, check the location of the boss (Remember, he may be located behind you!) and read on.

Webster’s Dictionary defines paternity as “1. the state of being  a father, fatherhood; 2. derivation or descent from a father; 3. pertaining to a legal dispute in which a woman accuses a man of having fathered her child: a paternity suit.”

Although my first involvement in a paternity case occurred many years ago before I set out my shingle in Wyoming, I remember the details clearly because I was so surprised by the outcome. The case actually began as a routine divorce.  The mother and father had been married for about 10 years and had two children. Early on there were rumblings about the dad maybe not being the father of the younger child, let’s call him Adam, who was 5 years old at the time. Eventually the mother confirmed that another man fathered Adam.

The parents actually had things worked out just fine between them, but then the State became involved. The State took the position that since the son was born during the marriage, and since the boy was now 5 years old and the dad had not previously challenged paternity, it was too late to do so and there was an irrefutable presumption that the dad was Adam’s biological father.  End of story.

Although I was initially bewildered by the result, and although I had advocated for a different ending, with the passage of time and upon further reflection I came to the conclusion that the outcome was based on just and humane social policy considerations.

Public policy, at least in theory, has always sanctified the relationship of husband and wife.  The State confers on married couples certain rights and privileges which are not accorded to unmarried couples. (I can just hear you married folks saying, “Who does he think he’s kidding?”)

Public policy also recognizes – again, at least in principle if not in reality – the sanctity of the family.  And it is in this context that the law of paternity is grounded and makes good sense, although when applied on a case by case basis the result may sometimes seem harsh or unfair.

The law is based upon preserving the sanctity of the family.  And so it is that the law says that a child born to a married couple, or born within 300 days after the marriage is terminated (by death or divorce), is the presumed child of the husband and the wife.

Stated another way, there is a strong social policy against bastardizing a child.  The Wyoming Legislature has enacted stringent laws to insure that children born during wedlock (what a fabulously expressive word) will not be considered illegitimate.

We inherited our laws from the English system of justice, which is referred to as the “common law”. At common law a biological father could not bring an action for paternity.  If Jane Doe was married to John Doe at the time she became pregnant, then the law dictated that John Doe was the father of the baby, no matter if John was utterly helpless without his Viagra and had forgotten to reorder in time; no matter if the entire town knew that Jane only had eyes for the milkman.

So a married man is presumed to be the father of a child born to his wife during the marriage, or within 300 days of the termination of the marriage.  If the presumed father believes that he is not the biological parent of Little Johnny, he must file a paternity suit “….within a reasonable time after obtaining knowledge of relevant facts, but in no event later than 5 years after the child’s birth.”

So, if the presumed father of a child more than 5 years old suddenly learns that another man is actually the dad, he cannot file a paternity suit to declare the other man the father.

But even if the presumed father files a paternity action within the 5 year period, if a Court determines that the presumed father waited an “unreasonable” period of time before seeking to prove that someone else fathered the child, the Court has the authority to deny the claim and declare the presumed father as the real deal.

The situation is sometimes further complicated by the fact that genetic testing is said to be virtually 100 percent reliable.  The results of genetic testing will not be allowed in a particular case unless it fits within the rules, even if the test results, if allowed, would dictate a totally different conclusion.

The Wyoming Supreme Court had this to say in support of its holding in a paternity case:

“The State has an interest in protecting and preserving the integrity of the family unit.  Even in this era of no-fault divorce, frequent pre-marital sex and cohabitation and new attitudes toward child rearing, a child has a right to legitimacy and the State must protect that right.”

That’s it from Shangri-la for the moment.  See you next month.

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