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Introduction | |
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< | In class, Eben mentioned an innocent boy who is at risk of deportation because of an accidental injury to his girlfriend and the inexorable "must arrest" laws that he now faces. The story prompted some class members to argue that the sacrifice of innocent men is a worthy exchange for the safety of abused women. This debate reminded me of a fascinating, heartbreaking article titled "Who Knew I Was Not the Father?" that appeared in the New York Times Magazine last November. The article discusses men who, when they realize that they have been duped into raising children who are not their own, find themselves bound by stringent paternity laws to continue to pay child support. While I would never wish to downplay the horrors of domestic violence and deadbeat fathers, my fear in both situations is that the law, in combating terrible social ills, has created new injustices. I reject as false the proposition that the law can only work in obscene binaries: that we must choose whether to sacrifice the rights of this group or of that group. The law must work in more nuanced ways to achieve justice. | >
> | A recent class debate reminded me of a fascinating, heartbreaking article titled "Who Knew I Was Not the Father?" that appeared in the New York Times Magazine last November. The article discusses men who, when they realize that they have been cheated on and duped into raising children who are not their own, find themselves bound by stringent paternity laws to continue to pay child support. While I would never wish to downplay the horrors of deadbeat fathers, my fear is that the law, in combating terrible social ills, has created new injustices. The law must work in more nuanced ways to achieve justice. | | |
The Problem: Solving One Injustice by Creating Another | | | Abandoned Mothers
The abandonment of mothers and children is a grave and rampant problem. According to the 2005 US Census Bureau, over 20% of custodial mothers, i.e. single mothers with minor children, do not receive any child support from their children's father. While mothers who know the identity of their children's father have potential recourse through the courts, mothers who remain ignorant of the identity of their children's father face a hopeless situation. For that reason, efforts to identify and legally bind absentee fathers have proved essential to achieving justice for these women and their children. | |
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< | Deceived "Fathers"
Still, through the enforcement of stringent paternity laws, a new class of victims has been created. DNA testing has enabled men across the country to discover that the child they have been raising is not theirs at all. These men are doubly deceived--not only in remaining faithful to an adulterous wife, but also in supporting her lover's child. Different states adopt different approaches to this problem, but the laws of the vast majority of states offer no sympathy to the deceived man: Not only must he continue to pay child support, but also the true father, if he is known or discovered, bears no financial obligation. These states operate under the old English common law notion that birth in marriage establishes paternity. Although the law originally operated to avoid bastardy, it now serves a further function in preventing mothers and their children from facing abandonment. | >
> | Deceived Husbands
Still, through the enforcement of stringent paternity laws, a new class of victims has been created. DNA testing has enabled men across the country to discover that the child they have been raising is not theirs at all. These men are doubly deceived--not only in remaining faithful to an adulterous wife, but also in supporting her lover's child. The laws of the vast majority of states offer no sympathy to the deceived man: Not only must he continue to pay child support, but also the true father, if he is known or discovered, bears no financial obligation. These states operate under the old English common law notion that birth in marriage establishes paternity.
I do not wish to pass judgment on these deceived husbands and their feelings of betrayal. Adultery, though not illegal, is a deep source of anxiety for both men and women, and forms a large part of our cultural consciousness (as countless headlines about Elizabeth Edwards, to name one example, demonstrate). It presumably plays a significant role in our country's absurdly high divorce rate. Whether our culture is wrong-headed in reinforcing this anxiety, and whether deceived men are silly to worry about the genetic make-up of their children--something they can never really know for certain--I cannot say. I, perhaps illogically, sympathize with the victims of adultery. So do many others. But more importantly, as I will discuss below, so does the law. But the way in which the law deals with these issues needs to change. | | | Rights in the Balance | |
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< | Some might say that these men are the necessary victims in a system that, to combat deadbeat fathers, must privilege the rights of mothers above all else. I find that argument callously simplistic. | | | The Child | |
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< | In most of the relevant court rulings, the paramount concern has been the well-being of the out-of-wedlock child. And rightly so: The child is an innocent bystander to the fraud perpetrated by its mother. It is powerless to defend its interests. Courts have reasoned that allowing men to abandon the child they have been caring for, even if that child proves not to be their own, would constitute a greater injustice than forcing those men to continue to pay child support. I do not dispute this conclusion. Both the man and the child are victims, but the child's rights must take precedence. | >
> | In most of the relevant court rulings, the paramount concern has been the well-being of the out-of-wedlock child. And rightly so: The child is an innocent bystander to its parents' actions. It is powerless to defend its interests. Courts have reasoned that allowing men to abandon the child, even if that child proves not to be their own, would constitute a greater injustice than forcing those men to continue to pay child support. I completely agree with this conclusion. Both the man and the child are victims, but the child's rights must take precedence.
Yet the law has evolved a response to DNA testing that is the worst imaginable for the child's interests: States have begun to adopt measures that allow deceived fathers a two-year window in which they can produce DNA evidence showing that they are not the child's biological father and thus relieve themselves of all paternal obligations. This law thus creates a two-year period in which the father's rights inexcusably take precedence over the child's. In attempting to give justice to the husband, the law has instead created a much greater injustice. | | | | |
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< | The Deceived Father
Still, the rights of the deceived father must be considered. It is true that many of these fathers develop deep relationships with their "children" and would perhaps independently desire to support them.
What are the quotes
around "children" designed to indicate: that these aren't actually
children? Is their legal entitlement to support from the adults
around them "unjust" unless it corresponds to possession of half each
adult's genome? Are adopted children "children"? If not, why is
adoption an appropriate basis for legal obligation, but not
contemporaneous marriage to a biological parent?
Nevertheless, these men's legal obligation to pay for a child that is not theirs is a continual, bitter reminder of their status as dupes. As the Alaska Supreme Court noted in a "paternity by estoppel" case, the legal duty to pay child support can poison the very relationship it hopes to save.
The Mother and the True Father
Under the current state of the law, while the deceived father must pay child support, the mother escapes all negative consequences of the fraud she has perpetrated,
Hadn't you better get
your breathing under control and check your analysis? A woman has
married, and she has borne a child. Her husband is financially
responsible for the support of that child: his obligation arises from
the marriage, rather than from any representation the woman has made,
or any intention she had of his relying on it. "Fraud" is a
metaphor, and depends for its effect on the unestablished, and
largely inaccurate, proposition that adultery is a crime. A man who
wanted to be sure that the children he is going to be charged with
supporting are his genetic offspring could have paternity tested in
utero, or divorce his wife unless she agreed to the test. You would
say, I suppose, that such a fellow is trying to avoid fraud. I might
reach a different conclusion.
and the true father bears none of the financial responsibility for his child. These inequalities demand reform.
Perhaps abolishing
marriage would work for you?
First, the true father, if found within the statute of limitations, should take on the financial responsibility for his child, just as he would if no other man had been duped. i
Gaining parental rights
in the process? Otherwise, new inequalities will demand reform,
n'est-ce pas?
Furthermore, after the child reaches an age at which it no longer needs to be supported, the mother, the true father, or both should recompense the deceived father for the money he has spent as a result of their fraud.
Surely you don't expect
that to turn out very well, do you? You see judgments enforced by
husbands against wives out of the common marital property? Or this
is a special benefit for divorced former husbands only, giving an
immense apparent financial incentive for family breakup? You
anticipate significant and effective collections of the sums expended
by resident fathers from the transient uninvolved parties you call
"adulterers"? Good luck with that. You should have been able to see
why this proposal is not only not going to happen, but couldn't
actually happen.
Doing so would enable the mother to receive child support when she needs it and would still save the relationship between the deceived father and his child from the bitterness discussed above. The injustice to the deceived father, while not entirely erased, would be greatly diminished. What's more, the deceived father should be looked favorably upon in custody disputes. By continuing to support a child that is not his, he has movingly proven his emotional attachment and commitment to the child.
Marriage is not only a
right, after all, but a responsibility. So is biological parenthood,
but it is not terribly surprising that where the law terminates
parental rights, it also terminates support obligations. Would you
establish also, in addition to these residual support obligations for
previously-unidentified biological fathers, residual rights to
visitation and shared decisions on upbringing?
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> | The True Father
The proper solution needs to recognize that there are multiple ways to assume legal responsibility for a child, two of which are biological fatherhood and birth during marriage. If the deceived husband did not exist, the mother would be able to try to track down the biological father and, through DNA testing, impose paternal responsibilities on him. This is as it should be--again, the welfare of the child must come first, and having a father in the picture is central to that welfare. But in situations like the ones at issue, the question becomes which man has the greater responsibility--the biological father or the man who was married to the mother at the time of the birth.
If deceived husbands wish to divorce their wives and abandon their parental responsibilities, the law should not allow them to do so if it leaves the child without a father. If within a set window, however, the biological father can be found, then he should assume responsibility. If he cannot be found, then the husband must retain his paternal obligations. The two-year window seems fair: Marriage and sex both impute responsibilities, and while at the moment of birth the biological father who caused the birth bears greater responsibility, the balance of responsibility reasonably shifts to the husband as he becomes an increasing presence in the child's life. This solution would most protect the child's interests while also treating victims of adultery justly. | | |
Conclusion | |
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< | Ultimately, the real problem for these deceived "fathers" and for innocent boys like the one Eben discussed in class is that they have had the misfortune of falling into groups that are rightly viewed with skepticism, namely "men who no longer wish to pay child support" and "men who have been accused of abusing their partners." Nevertheless, it is precisely because these innocent men face such intense adversity that sensitive, serious lawyers must strive to defend them. Changes in the law that allow for more nuanced treatment of these men should not be seen as a threat to women but rather as protection of the justice to which all people are entitled.
You have made a variety
of assumptions about the story I told, not the least of which is that
it's a story of "injustice." I'm not convinced of that, but I am
convinced of the difficulties the criminal justice system faces in a
situation which, as I pointed out, had as much to do with the
extracultural origin of the two young people whose fight turned into
a felony prosecution as it had to do with anything else. Your
supposedly analogous situation is in fact quite different. All the
fulmination about "fraud" explains why. Here you are arguing that a
rule of which everyone can be prospectively aware, which has been in
place for more than a thousand years, and which serves a variety of
positive social purposes, is "unjust" because it operates as it has
always done. In order to take that position, you have to decompose
marriage as a civil contract, with specific obligations, and restore
it to a kind of market participation, in which—I
suppose—men buy sex in return for an obligation to support any
children they actually engender. Whether that would be a better
approach to the institution of marriage (which you might just as well
argue ought to be disestablished outright) seems to me to involve more
questions of "justice" than the one terribly hard case of fathers who
have been cheated into loving children they didn't fuck into
existence. | | | \ No newline at end of file | |
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> | The real problem for these deceived "fathers" is that they have had the misfortune of falling into groups that are rightly viewed with skepticism, namely "men who no longer wish to pay child support." Nevertheless, it is precisely because these innocent men face such intense adversity that sensitive, serious lawyers must strive to defend them. Changes in the law that allow for more nuanced treatment of these men, while treating the child's rights as paramount, protect the justice to which all people are entitled. |
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