Tag Archive for 'father'

Kentucky Supreme Court: Man Who Has Affair With Married Woman Can Assert Paternity

Last week, the Kentucky Supreme Court ruled that a man who has an affair with a married woman can assert a claim of paternity of a child conceived in the relationship.

This case, and some of the controversy surrounding it, demonstrates what I believe to be a somewhat irrational attitude toward marriage held by politicians and, sometimes, the courts. To be clear, I think that the court made the right decision, but some of these attitudes are illustrated in a dissenting opinion.

It’s true that this case represents a major departure from the traditional common law, which typically assumes that a child born to a married woman is the biological child of the woman’s husband. The law would typically stick to this assumption against virtually all evidence. Of course, this rule is a product of its times: it was devised hundreds of years before DNA testing came into existence, and even before less-precise methods of determining paternity (or at least narrowing down the pool of potential fathers), such as blood type testing, were available. As the majority points out, the assumption that a child born to a married woman is a “child of the marriage” arose in a time when very little could be done to determine paternity. The most scientific way of determining paternity was to have a bunch of people decide which supposed father the child most resembles.

Furthermore, the common law developed in an extremely conservative society, when having children out of wedlock was a huge social taboo, stigmatizing both the mother and the child. If a child was declared illegitimate, he or she would be discriminated against, and denied a place in “decent” society. Also, paternity was almost always contested by the mother’s husband, in an attempt to prove that the child is not his, in order to disavow parental responsibility to the child.

It made sense, then, that the common law courts would prefer to simply assume that every child born to a married woman is a child of the marriage.

However, we don’t live in 16th-Century England anymore. We live in an era in which we still place a high level of importance on the institution of marriage, but are also OK with acknowledging the simple fact that not every marriage works. Furthermore, in this era of DNA testing, we can determine a child’s paternity (or at least rule out potential fathers, if the actual biological father is not available for testing) with over 99% accuracy. And we’ve also moved beyond demonizing a child based solely on the circumstances of his or her conception.

Also, only fairly recently would a man contest the paternity of a child, not to prove that he is not the father and disavow parental responsibilities, but to prove that he is the father, in order to voluntarily assume those responsibilities. The fact that this has become more commonplace can only be considered a positive development, in the scheme of things.

Nonetheless, situations still come up where the paternity of a child is contested. The question faced by the court here was whether or not anyone could question the paternity of a child born to a married woman, and if so, who.

The court held that there is a still a strong presumption that a child born to a married woman was fathered by her husband. However, it made clear that this presumption can be rebutted with sufficient evidence to the contrary. It held that the presumption is so strong, that evidence to the contrary must amount to proof “beyond a reasonable doubt” which is the highest standard of proof available in the law, and reserved almost exclusively for criminal cases. Its use in family law cases, such as this one, is extremely rare, illustrating just how important the presumption of legitimacy is. Generally, only a DNA test will present sufficiently strong evidence to overcome this presumption.

I believe that this high standard is justified, and contesting the paternity of a child born to a married woman should be fairly difficult. After all, the marital relationship is still very important, and outside interference is not something the law should abide lightly.

Having said that, the interest of the biological father in being involved in his child’s life, and the interest of the child in knowing his or her biological father, must also be considered, and weighed against the couple’s interest in not having their marriage disturbed.

I think the rule articulated by the Kentucky Supreme Court, that paternity in these cases must be proven beyond a reasonable doubt, is a sound one. Furthermore, before the question of paternity can even be reached, a putative father should first have to present some evidence that it’s actually possible for him to be the father – including evidence that he and the mother had a sexual relationship during the relevant time, and evidence that he is medically capable of fathering children.

To put it simply, courts need to respect the marital relationship, but they also need to be realistic about the fact that no marriage is perfect.

Can You Sue For A Wrongful Death That Occurred Before You Were Born?

Here’s a strange scenario: a man impregnates a woman with whom he had been in an on-and-off relationship for quite some time. A short time after finding out about the pregnancy, the man is exiting a house. Coincidentally, a group of police officers are moving in on the house in preparation for a drug bust. One of the police officers trips on a tree root, bumping another officer, who accidentally discharges his gun. The bullet strikes the man leaving the house, and he is killed.

After the child is born, he sues (with his mother acting on his behalf) the police department for wrongful death, even though the death happened when the child’s mother was only six weeks pregnant.

This is exactly what happened in New York. A court has just ruled that the child’s wrongful death suit against the county can go forward.

As far as I can tell, there is very little precedent for a lawsuit like this. First of all, the mother and the father were not married, so it’s not clear that she would even be able to sue for wrongful death. There’s no question, however, that a child can sue for the wrongful death of a parent, regardless of the parents’ relationship with one another.

However, the question of whether a person has some legal rights before they are born is incredibly loaded, and far more divisive than just about any other question in tort law. If you explore differing opinions on this legal issue, you’ll likely find that, in most cases, these differences are rooted in disputes of fundamental philosophy, on which there is rarely much middle ground.

However, there is generally some agreement that the legal right for a child to sue for injuries that occurred before his birth does not accrue until after his birth. This has been established in cases dealing with issues of “wrongful birth” or “wrongful life.”

So, if the wrongful act which occurred before the child was born clearly affects the child after he’s born, the child can sue. In this case, we have to look at what harm the child has suffered, and what harm the law actually recognizes as compensable in wrongful death claims.

As mentioned earlier, the child’s mother, not being married to the father, can’t sue for wrongful death, so she’s suing on behalf of her son. New York law apparently allows the child of a deceased parent to recover damages for lost financial support and lost parental guidance, companionship, and love.

While calculating the value of a lifetime of financial and material support can’t be done with perfect accuracy, we can usually get a likely ballpark figure of what the decedent’s lifetime income would be by looking at the decedent’s job and income at the time of death, its growth potential, and the decedent’s skills and education. Obviously, this isn’t a clear, objective look into an alternate universe where the decedent is alive, but it renders results that are sufficiently certain for a jury to award a dollar figure in damages.

Calculating the value of lost parental love, companionship, and guidance, on the other hand, is almost completely subjective.

However, it’s fairly common to award monetary damages for things like emotional distress, and pain and suffering. The exact dollar amount that constitutes appropriate compensation for those types of harm is impossible to determine objectively, as well.

So, what does this mean for the current case? It’s clear that this child is going to grow up without ever knowing his biological father. The law generally assumes that it’s in the best interest of every child to have two parents, until it’s proven that one of the parents is unfit. So, even though this child will have no basis for comparison as he grows up, as far as the law is concerned, he has still lost something, and is likely entitled to an award.

Hypothetically, what if, when the child was still very young, the mother married or entered a long-term relationship with another man, who turned out to be an excellent father figure? Could the child then be said to have suffered the loss (not having a father) that the money is meant to redress?

This raises a somewhat troubling question: suppose this lawsuit is successful, and the child recovers a large monetary award. In cases like this, an award of damages to a child is typically placed in a trust that the child will be able to access when he reaches a certain age, typically 18. If this happens, will the money be anything other than a windfall for the child? Or will he actually feel some vindication for the fact that he grew up without a father?

Still, tragedy, in itself, is not enough to warrant a civil judgment – there must be wrongdoing, and some compensable loss. There was clearly wrongdoing in this case: a man doesn’t get shot and killed for no reason unless somebody screwed up very badly. However, as discussed above, you could make at least a non-frivolous (though, admittedly, unlikely to succeed) argument that, from the child’s perspective, he hasn’t really “lost” anything.

Personally, I hope such an argument would fail. First of all, it discounts the simple fact that a man is dead for no reason. Secondly, we don’t know if the best case scenario (the child growing up with a strong father figure, even if it’s not his biological father) will actually occur. Just as we can’t award damages that are completely speculative, we can’t refuse to compensate someone for a loss because of speculative future mitigating factors.

Finally, the police seriously screwed up here, and civil lawsuits for misconduct are essential in keeping the police honest, and hitting police departments with large judgments should they engage in misconduct should deter such misconduct in the future.

Posthumous Birth Laws, In Vitro Fertilization, and other Legal Quandaries

Some of the trickiest areas of law deal with a subject that is by nature nebulous and fuzzy – the measurement of human life.  When does it end?  When does it begin?  And how can laws be crafted around these boundaries, which are different for every person?  Sometimes the law attempts to force these grey areas into arbitrary categories.  Most of the time though, the laws simply don’t make sense.

Take, for example, an area of law that is recently receiving a lot of attention- posthumous birth laws.  Posthumous birth is when a child is born after the death of a parent, usually the father.  A person born in such circumstances is called a “posthumous child” or a “posthumously born person”.  The laws covering posthumous birth tend to focus on issues like property inheritance and the child’s legal status.  The question is usually: are posthumous children entitled to receive distributions from the father’s estate?

Now, laws covering this issue are already difficult to navigate.  Each state’s posthumous birth laws vary widely, and there seems to be no golden standard to refer to.  The issue gets further compounded by advances in reproductive technology, namely, in vitro fertilization.

We are presently seeing more and more children being conceived through in vitro fertilization.  But what happens when the father passes away before the child is even conceived?  This situation was not previously a legal issue before the advent of in vitro fertilization technology, and courts are struggling to reach a consensus on the issue.

State laws do generally agree that if the father dies during his wife’s pregnancy, the child is entitled to receive benefits such as federal funding and inheritance rights from the father.  However, if the father dies before conception, the child will not be entitled to benefits.

But does this make any sense at all?  Is a donor not a father?  It appears that the law has difficulty defining when the parent-child relationship actually begins.  To give courts some credit though, we are dealing with new technological frontiers and uncharted territory.  Courts faced similar difficulties with the phenomenon of abortion- cases involving abortion are notorious for arguing over the intricacies of when human life begins.

What perplexes me most is this: while the law is having difficulties dealing with real-live situations, there are several areas of law that use hypothetical, impossible situations as actual legal standards.  These quandaries are known as “legal fictions”, and they are abundant particularly in instances dealing with human deaths and births, and of course, property distribution.

To illustrate, here are some of the more commonly known (and ridiculed) legal fictions:

  • The Fertile Octogenarian:  The law assumes that women can bear children even into their golden years, such as 80+ years old.  This law applies in situations involving the property of transfer under the perpetually-hated rule against perpetuities.  (A fertile 80-year old may actually become a possibility given the momentum of reproductive advancements.  Is it desirable though?  That’s another question.)
  • The Unborn Widow:  This fiction says that a man can marry a woman who has not even been born yet.  This idea applies to transfers of property that are conditioned upon the death of the man’s wife.  Such transfers are invalidated because of the possibility of the man marrying the unborn widow.
  • The Precocious Toddler:  This one states that some persons might be fertile at birth or early stages of life.  (I foresee a future debate over Prop. 8,043,932: marriage between the Precocious ones and the Fertiles).

What is the world coming to?  Or rather, what is the law turning the world into?  In my opinion, laws do not need to imagine every conceivable situation and should instead focus on the ones that are actually happening.

So, back to a possible solution for the posthumous birth issue.  Ok, maybe not a solution, but as a suggestion, perhaps the legal implications need to be worked out more thoroughly before the technology is birthed, so to speak.  The legal implications of any new reproductive technology should be anticipated during the technology’s “conception” stages.  The legal process has always struggled to keep pace with technology.  And something needs to be done about that.

In other words, perhaps we need to see more interaction between researchers and legal experts.  This is especially true when dealing with issues like reproduction and parenthood, and, (altogether now), property distribution.  Or better yet, maybe we need more people who are trained in both scientific research and legal issues.  Sounds rough, but it is possible.  After all, the internet is making people smarter, right?

Who’s Your Daddy? When Paternity is an Issue

I grew up in a very nuclear family, so the idea of not knowing my father was never an issue.  The recent press over Leicester Bryce Stovell, the man claiming to be basketball star LeBron James father got me thinking about the paternity process.

But first, here is the latest in LeBron’s case: Stovell claims that the results of the paternity test he recently took were falsified by James and his mother, Gloria, and that James’s committed fraud and misrepresentation in an effort to conceal the identity of James’ father.  Stovell further alleges that his character was defamed by James’ comment, “I want to be a better father than mine was.”
This is not your typical paternity dispute (neither is this one involving deceased Chess champion Bobby Fischer being exhumed from his grave to determine whether he is the father to a nine year old Pilipino girl) in that paternity tests usually involve the mother or child seeking the test in order to establish a relationship, child support, custody and visitation rights, adoption, inheritance, and other parenting issues.  In this case, it is the father wishing to establish the biological relationship and also seeking millions of dollars in damages for being denied access to his “son.”

A paternity test is essentially a DNA test to prove beyond a legal doubt that by taking samples from the child and the father that there is a biological relationship.  States vary as to the standard they require but the test is the same. Paternity tests claim 99% accuracy and can be completed in a couple of days, plus both before birth and after death.

In a recent study conducted by LegalMatch, there was as much interest in determining paternity as there was contesting paternity.  This is not too surprising as this can be a very costly issue for both parties and there is a lot at stake.  Highly emotional, the paternity test can serve as the final adjudicator in the issue of fatherhood.

Reading these various articles and cases surrounding paternity, I am still amazed how far technology has come.  The fact that we can test a baby in the womb or exhume a dead body to establish paternity is quite a feat and can hopefully serve to answer the important question of fatherhood.

In the case of LeBron James, I think it is a shame that Stovell has only come forward after James has made millions of dollars and been raised by his single mother.  One aspect of paternity that I do like hearing about is the increase in companies granting father’s paternity leave in the same way mothers take maternity leave.  I think this is a great trend and one that seems to be gaining momentum.

Child Abuse – The Unspoken Subject

Recently, a 10-year old boy named Seth Ireland died.  He was, allegedly, beaten to death by his mother’s boyfriend. The death occurred near Fresno, California, an area hard hit by unemployment and a down market economy. Increased financial stresses, are translating to increased incidents of child abuse.[1]  But, how do we protect our children?  We protect them through increased awareness and via support for those families going through hard economic times.

According to the U.S. Department of Health and Human Services (U.S.D.H.H.S.), during fiscal year 2007, an estimated 794,000 children were victims of child abuse or 10.6 children for every 1,000 children in the population nationally.[2]  Not surprisingly, during the past five years, over 3,500 customers have consulted LegalMatch in an effort to find an experienced personal injury attorney to help them bring suit against a child abuser.

Child abuse ranges from physical neglect (59%), physical abuse (10.8%), sexual abuse (7.6%), and psychological abuse (4.2%), to being medically neglected and multiple categories of neglect.[3]  While the majority of children abused were under age 11 (75%), 25% of children were age 11 to 17 and there was a near equal split of gender.  Slightly more female children (52%) were abused than male children (48%).[4]

But, just who are these perpetrators of child abuse? 

The majority of perpetrators of child abuse, according to U.S.D.H.H.S. were parents, step-parents or adopted parents, accounting for 86.5% of all child abusers.  While this may sound surprising, LegalMatch.com data bears this out (see Figure below) with about 62% of perpetrators reported as being “in the family.” 

The majority of family members reported are the biological parents; abusers are fathers and mother alike. This is no different than national data.[5]  Unlike national data, LegalMatch customers also report a high percentage of family friends or acquaintances (17%) being responsible for child abuse.   This is echoed in the story about Seth Ireland.  Despite movies like “Doubt,” priests/pastors, doctors and other professionals count among the smallest category of child abusers; but they still do count.  Moreover, there is no socio-economic level immune to child abuse.[6]

Makeup of Perpetrators of Child Abuse on LegalMatch.com

child-abuse-chartVictims of child abuse suffer life-long consequences from being substantially more likely to become abusers of drugs or alcohol than non-abused children, to suffering from depression and post-traumatic stress disorder to becoming perpetrators themselves.[7]  It takes considerable courage and a heavy emotional toll for the child-victim or the parent or guardian of the child to report abuse.  But, count on the toll being much heavier for all concerned if the abuse continues unspoken and unreported.  

To report child abuse, contact your state Department of Child Protective Services. LegalMatch can also help you find an experienced personal injury lawyer to assist you in bringing a private lawsuit against the individual being charged.  Or, if you, yourself, are being accused of child abuse, LegalMatch can help you find a seasoned criminal defense attorney to help. 

Related Links:


[1] New Valley Attack Against Child Abuse

[2] U.S. Dept. of Health & Human Services, Dept. of Children’s Services, Child Maltreatment 2007

[3] U.S. Dept. of Health & Human Services, Dept. of Children’s Services, Child Maltreatment 2007

[4] U.S. Dept. of Health & Human Services, Dept. of Children Services, Child Maltreatment

[5] U.S. Dept. of Health & Human Service, Dept. of Children Services, Child Maltreatment 2007

[6] Child Help National Abuse Hotline

[7] Child Help National Abuse Hotline