NationStates Jolt Archive

http://www.time.com/time/nation/article/0,8599,1736006,00.html?xid=rss-topstories

Last week, in a decision that underscores the tense relationship between science and law, a divided Kentucky Supreme Court told Rhoades that he could not press his paternity claim, no matter what evidence of fatherhood he might have, because J.N.R. was, and remains, a married woman. When it comes to defining fatherhood in the Bluegrass State, where Ricketts and her husband now live, the marital "I do" mean a lot more than DNA.

We generally think of custody of a child going to his biological parents. Historically, we could never really be certain who the father of a child was. By law, a woman's husband has generally been assumed to be the biological (and therefore legal) father of any children she had while married. It's generally a decent assumption to make and it was the best we had to go on for a long time.

With DNA testing, however, that assumption can be directly challenged. And, as we all know, it isn't always true. I was under the impression that a challenge like this would generally favor the biological father, and I believe that is true in some states. But this court has apparently ruled that allowing this biological father custody rights or even access to his child would disrupt the child's and the family's life. So despite clear evidence that he is the father of the child, he can have no part in the child's life that the legal parents - the mother and her husband - don't allow him.

Is this a good decision? A bad one?

i think its best left that when it invovles a married couple only one of the couple can contest paternity. as a family unit they shouldnt have to deal with outside challenges.

I think you're misunderstanding what the law is saying here. The "presumption" that a child born within a marriage is the child of the husband is called an "irrebuttable presumption", meaning THE LAW DOES NOT CARE even if it is absolutely 100% proven that the child is not his, booming voice of God from heaven declaring "that's not his kid!" or whatever: the husband is responsible for the child in any case.

I think you're misunderstanding what the law is saying here. The "presumption" that a child born within a marriage is the child of the husband is called an "irrebuttable presumption", meaning THE LAW DOES NOT CARE even if it is absolutely 100% proven that the child is not his, booming voice of God from heaven declaring "that's not his kid!" or whatever: the husband is responsible for the child in any case.

And yet some states allow challenges to that presumption. This just clearly isn't one of them.

i think its best left that when it invovles a married couple only one of the couple can contest paternity. as a family unit they shouldnt have to deal with outside challenges.

Doesn't that do away with the idea that biological parents have the right to parent their children?

I find it rather interesting that woman who is unmarried has to consult with the biological father of her child if she wants to have her child adopted by a spouse, but a woman who gets married before she gives birth doesn't have to do so.

And to what end do we keep this child in a web of lies? So that he can find out when he's 18 that his parents and the law have been lying to him for his entire life?

Legal "right" and "wrong" and moral "right" and "wrong" while often overlapping are NOT the same thing. This is one of those cases where legal "right" differs from moral "right." and in this country we live by the rule of law (in theory anyway, that's another debate). The court is enforcing law that has been in place since before the founding of this country - note the key thought here, they are enforcing the LAW and NOT their moral opinion as to what is "right." I would be willing to bet my 401K that every single judge on the court has the personal opinion that the dude should be given access to his kid, but the law says they can't and their job is to uphold the law, not turn their personal feelings into law.

Doesn't that do away with the idea that biological parents have the right to parent their children?

And to what end do we keep this child in a web of lies? So that he can find out when he's 18 that his parents and the law have been lying to him for his entire life?

millions of people have had that very fact of life. better to just leave it alone. if its disallowed by law, it cant be proven by dna. the biodad has no standing to force a test.

And yet some states allow challenges to that presumption. This just clearly isn't one of them.
That's correct. In some states it is a "rebuttable" presumption; some states have changed in one direction, and some in the other.

Doesn't that do away with the idea that biological parents have the right to parent their children? Yes it does and in this context, they don't have that right.

I find it rather interesting that woman who is unmarried has to consult with the biological father of her child if she wants to have her child adopted by a spouse, but a woman who gets married before she gives birth doesn't have to do so. yes, that is an interesting twist.

And to what end do we keep this child in a web of lies? So that he can find out when he's 18 that his parents and the law have been lying to him for his entire life? Well, like 33 other states have done, the legislature could pass a law that changed things.

I would be willing to bet my 401K that every single judge on the court has the personal opinion that the dude should be given access to his kid
You would probably lose. Many people are of the opinion that the biodad would have no rights (morally) whatsoever in this kind of situation, and I would expect that some of the judges on that court do also.

millions of people have had that very fact of life. better to just leave it alone. if its disallowed by law, it cant be proven by dna. the biodad has no standing to force a test.

Not to force one, no.

But this man already has the test results. (Don't ask me how he got them - it clearly wasn't by order of this court). It is scientifically irrefutable that he is the father of this child.

Meanwhile, let's say he didn't have the test results. He approaches the kid at 18, shows him all the pictures and points out that he is the kid's father. Because of the doubt that would instill, they have a DNA test and it is shown to be true.

It's still the same effect. You shake up this kid's life well into it instead of letting him grow up with the knowledge.

Legal "right" and "wrong" and moral "right" and "wrong" while often overlapping are NOT the same thing. This is one of those cases where legal "right" differs from moral "right." and in this country we live by the rule of law (in theory anyway, that's another debate). The court is enforcing law that has been in place since before the founding of this country - note the key thought here, they are enforcing the LAW and NOT their moral opinion as to what is "right." I would be willing to bet my 401K that every single judge on the court has the personal opinion that the dude should be given access to his kid, but the law says they can't and their job is to uphold the law, not turn their personal feelings into law.

It is my understanding that this is more of a common law thing than a matter of written law. It has always been held that the man married to the mother is the biological father, because that was the best legal assumption to go with.

But with the onset of scientific means for testing that assumption, many courts have rejected that interpretation of common law. 3 out of 7 judges on this court did so.

I don't think it's as cut and dry as "The law says this so STUFU."

*shakes head* This is wrong. Very wrong. Biological parents have a right to at the least visit their child, and yet becasue the mother ran off and married another man before the child was born they regonize the man she married instead of the biological father? *fumes* :mad:

Bah, maybe I'm biased. *cools down*

millions of people have had that very fact of life. better to just leave it alone. if its disallowed by law, it cant be proven by dna. the biodad has no standing to force a test.

Meanwhile, would you make that same argument for a single woman?

If a single woman has a child and would rather make up a story about who the father was than allow the biological father access to her child, should he be unable to attempt to gain legal parental status?

If not, what makes the single mother's lie better than the married one's?

It is my understanding that this is more of a common law thing than a matter of written law. It has always been held that the man married to the mother is the biological father, because that was the best legal assumption to go with.

But with the onset of scientific means for testing that assumption, many courts have rejected that interpretation of common law. 3 out of 7 judges on this court did so.

I don't think it's as cut and dry as "The law says this so STUFU."
True, but courts are, generally, very hesitant to re-write common law, relying on the legislature to instead pass a statute that does away with the common law rule. I have not done the research, I admit, but I'd bet that of the 33 states that have changed this rule, in the vast majority of them it was done with a statutory change rather than a court ruling the changed the common law rule.

I can easily envision one or more of the majority judges in this case feeling that he needs to side with the common law rule because it is the job of the legislature and not the court to "make" new law.

*shakes head* This is wrong. Very wrong. Biological parents have a right to at the least visit their child, and yet becasue the mother ran off and married another man before the child was born they regonize the man she married instead of the biological father? *fumes* :mad:

Bah, maybe I'm biased. *cools down*Actually, she was already married and had an affair. She did not get pregnant and then run off and marry someone else.

It doesn't seem right to me. She broke her marriage vows; her husband shouldn't be held to his and raise a child that isn't his.

Actually, she was already married and had an affair. She did not get pregnant and then run off and marry someone else.
...

That's even worse! Didn't she know what kind of turmoil this would create? At least the man WANTS to see his child.
But I really have to learn to read a little more carefully...

True, but courts are, generally, very hesitant to re-write common law

As they should be. But new technology can force us to either reexamine common law or end up with some pretty problematic rulings.

Actually, she was already married and had an affair. She did not get pregnant and then run off and marry someone else.

No, but she could have.

By the precedent this sets, a woman could get pregnant with one man's child and then marry another man while she's pregnant. The first would be legally cut out of the child's life.

It doesn't seem right to me. She broke her marriage vows; her husband shouldn't be held to his and raise a child that isn't his.

I don't think he's being forced to do it. From the sound of it, he knows she cheated on him and that the child is not his, but has remained married to her and with custody of the child.

Just try to stay with the husband that gave you your child and try to please your wife that is going to give you your child and none of this needs to happen.

But if it does, there is a saying in Chinese: the biological mother is not as a great as the "mother" who brought you up. And if the Chinese say something about family, most of the time it's right.

By the precedent this sets, a woman could get pregnant with one man's child and then marry another man while she's pregnant. The first would be legally cut out of the child's life.
That is correct. The man who marries her is assuming full responsibilities for the child, and for any other children she might have. The man who impregnated her ought to have married her (preferably, BEFORE impregnating her) or else he has no business talking about any "rights". That was always the law, although in some places it has changed.

Meanwhile, would you make that same argument for a single woman?

If a single woman has a child and would rather make up a story about who the father was than allow the biological father access to her child, should he be unable to attempt to gain legal parental status?

If not, what makes the single mother's lie better than the married one's?

no i wouldnt make the same rule for a single mother. supposing we are talking never married. she has no right to name the wrong person as father of her child.

That is correct. The man who marries her is assuming full responsibilities for the child, and for any other children she might have. The man who impregnated her ought to have married her (preferably, BEFORE impregnating her) or else he has no business talking about any "rights". That was always the law, although in some places it has changed.

LOL. He can't marry her without her consent, so I don't think we can really place the blame on him here.


no i wouldnt make the same rule for a single mother. supposing we are talking never married. she has no right to name the wrong person as father of her child.

But she does have that right if she happens to be married?

LOL. He can't marry her without her consent, so I don't think we can really place the blame on him here.



But she does have that right if she happens to be married?

no. the law makes the assumption and no one outside the marriage is allowed to contest it.

she can still contest it, her husband can contest it. outsiders cant.

if you are not married at the time you give birth, the law makes no assumptions of paternity. someone has to claim it. if she makes a claim, a different man can contest it--i assume he would have to have some evidence before a test was required.

LOL. He can't marry her without her consent, so I don't think we can really place the blame on him here.

If he hasn't married her, he has no right to be screwing her at all. That's the traditional law, see?

no. the law makes the assumption and no one outside the marriage is allowed to contest it.

she can still contest it, her husband can contest it. outsiders cant.

Ok, I see. So married women have the right to lie about who the father is. If the husband finds out, he has the right to lie that he is the father. All because they happen to be married.

Tell me, if an unmarried man agrees to be listed as the father of a child even though he knows that someone else is the actual biological father, what would we call that?

if you are not married at the time you give birth, the law makes no assumptions of paternity. someone has to claim it.

Hardly. There are plenty of kids out there with no legally recognized father.

Why can't a woman who wants to keep it that way say "leave well enough alone" and keep any man from making a paternity claim?

After all, you're giving married couples that ability. Why not single moms?

Ok, I see. So married women have the right to lie about who the father is. If the husband finds out, he has the right to lie that he is the father. All because they happen to be married.

Tell me, if an unmarried man agrees to be listed as the father of a child even though he knows that someone else is the actual biological father, what would we call that?

standard operating procedure. it happens all the time when a man marries a woman with a baby when she hasnt named a father. i dont think that would keep the real father from claiming the baby however.



Hardly. There are plenty of kids out there with no legally recognized father.

Why can't a woman who wants to keep it that way say "leave well enough alone" and keep any man from making a paternity claim?

After all, you're giving married couples that ability. Why not single moms?

i didnt mean that there has to be a named father but that for someone to be named father there has to be an active claim made, either by the mother or by the biodad.

Your DNA? You should be able to claim the kid. End of Story.

If the biological father wanted to allow the man to take custody, he should be allowed to, but if he wants to be able to have his own children who is some judge to tell him he cant? :(

A Kentucky court made a totally asinine decision that favors their narrow views over science?


Im stunned. Stunned I tell you!

All children should be under the custody of the state.

*nods*

...

*runs*

You would probably lose. Many people are of the opinion that the biodad would have no rights (morally) whatsoever in this kind of situation, and I would expect that some of the judges on that court do also.

Agreed. I don't see how this is an example of the "tense relationship between science at law," at all. The court said nurture is more important than nature in determining custody. It makes sense to me.

http://www.time.com/time/nation/article/0,8599,1736006,00.html?xid=rss-topstories

Last week, in a decision that underscores the tense relationship between science and law, a divided Kentucky Supreme Court told Rhoades that he could not press his paternity claim, no matter what evidence of fatherhood he might have, because J.N.R. was, and remains, a married woman. When it comes to defining fatherhood in the Bluegrass State, where Ricketts and her husband now live, the marital "I do" mean a lot more than DNA.

We generally think of custody of a child going to his biological parents. Historically, we could never really be certain who the father of a child was. By law, a woman's husband has generally been assumed to be the biological (and therefore legal) father of any children she had while married. It's generally a decent assumption to make and it was the best we had to go on for a long time.

With DNA testing, however, that assumption can be directly challenged. And, as we all know, it isn't always true. I was under the impression that a challenge like this would generally favor the biological father, and I believe that is true in some states. But this court has apparently ruled that allowing this biological father custody rights or even access to his child would disrupt the child's and the family's life. So despite clear evidence that he is the father of the child, he can have no part in the child's life that the legal parents - the mother and her husband - don't allow him.

Is this a good decision? A bad one?

I think any decision where we let the government tell us what we can and cannot do in our own families is a bad decision. I feel bad for the guy, I really do and I see the argument of the woman but this should have never been put to this level.

no i wouldnt make the same rule for a single mother. supposing we are talking never married. she has no right to name the wrong person as father of her child.

That seems rather hypocritical. Why does a married woman have that right but not an unmarried woman?

I have always considered my non-biological father to be my "real" father (yes, it's complicated), since I've known him since the age of 1. I believe DNA has nothing to do with one's ability to be a dad, and if the woman is with someone instead of someone else even if they're not the biological father, then surely she must think he is a better father.

Unless of course she is an irresponsible mother, in which case she shouldn't have the right to raise the baby at all.

I think any decision where we let the government tell us what we can and cannot do in our own families is a bad decision. I feel bad for the guy, I really do and I see the argument of the woman but this should have never been put to this level.
The government didn't say what was to be done within the family, the court simply defined the family's membership. What alternatives were there to the interference of a government institution? Daddy-Thunderdome?

With DNA testing, however, that assumption can be directly challenged. And, as we all know, it isn't always true. I was under the impression that a challenge like this would generally favor the biological father, and I believe that is true in some states. But this court has apparently ruled that allowing this biological father custody rights or even access to his child would disrupt the child's and the family's life. So despite clear evidence that he is the father of the child, he can have no part in the child's life that the legal parents - the mother and her husband - don't allow him.

Is this a good decision? A bad one?

What an interesting topic...

When we had no way of knowing for certain, the 'father' was whomever was married to the mother, or raising the child as his own. Fatherhood then, throughout the ages, has been infused with a certain amount of biological uncertainty. Among my own people, rights to children passed along with the mother, despite the fact that Cree lineages follow paternal lines. Meaning, if a husband died, the 'father' of his children would be whomever the mother chose to take that role.

So fatherhood has been, in its only certain form, a role.

But now we can know for certain. Should this certainty change things?

On one hand it seems manifestly unfair that a woman, always having had certainty, should maintain both the biological rights and role rights, while the man has only ever had the role rights. Especially if we start buying into beliefs about women being inherently better suited to child rearing than men...instead of simply better socialised to be.

Perhaps we need to create new roles that would make room for both biological parents, and role parents, even outside of adoption situations? Of course, considering that in most situations where there the biological father and the father-in-role are two different people, there has been some sort of deception, else that divide would already been known. So, it would certainly be hard to create 'new roles' around deception.

In a situations like that described in the OP, I'm stumped. I have always felt that the strongest parental rights should arise from actual parenting, not biology...unless a child has been taken away without valid reasons. I include the mother in this...if you have abandoned your child to be raised by another woman, I do feel that this other woman should have stronger rights than you to the child.

Ay, but that's a tangled web as well.

Agreed. I don't see how this is an example of the "tense relationship between science at law," at all. The court said nurture is more important than nature in determining custody. It makes sense to me.

But when discussing a newborn...'nurture' hasn't really had time to overtake 'nature'. In that sort of situation, how do you decide (outside of the courts) which situation should trump the other?

Going back to the law...when it comes to children the mantra is 'in the best interests of the child'. Shouldn't it then be a case by case decision? If the biological father is not married to the mother, then one would assume it'd be best to favour her current relationship if it is not abusive.

standard operating procedure. it happens all the time when a man marries a woman with a baby when she hasnt named a father. i dont think that would keep the real father from claiming the baby however.

I'm talking about listing someone on the birth certificate. If the mother and the listed father both know that someone else is the father, that's called fraud. It's illegal and the biological father can sue for parental status.....

unless the couple happens to be married, in which case they can choose to live that lie and keep him out.

i didnt mean that there has to be a named father but that for someone to be named father there has to be an active claim made, either by the mother or by the biodad.

So why shouldn't a single mom be able to protect her family unit by keeping the biodad out? She can do it if she happens to be married. You say that's actually the best situation if she happens to be married. So why shouldn't she be able to do it as a single mom?


Agreed. I don't see how this is an example of the "tense relationship between science at law," at all. The court said nurture is more important than nature in determining custody. It makes sense to me.

They did? Lying to your child and keeping a father who wants to be a part of his child's life - a father who already has been a part of that life - away is nurturing?


When we had no way of knowing for certain, the 'father' was whomever was married to the mother, or raising the child as his own. Fatherhood then, throughout the ages, has been infused with a certain amount of biological uncertainty. Among my own people, rights to children passed along with the mother, despite the fact that Cree lineages follow paternal lines. Meaning, if a husband died, the 'father' of his children would be whomever the mother chose to take that role.

So fatherhood has been, in its only certain form, a role.

But now we can know for certain. Should this certainty change things?

I think it should. Before we could actually know for certain who the father of a child was, we were looking at a biological inequity. The woman gave birth to the child, so we could know for certain that she was the biological mother. But we really just had to take her word (and the father's word) on who was the biological father. We had no other way to know.

But now we can know and a father can assert his parentage with certainty. If we continue to follow the old assumptions, despite that ability, we are creating a legally instituted inequity. It is no longer a biological one. Continuing in that tradition means that we are flat-out stating that a woman has more parental rights than a man, not because we cannot determine parentage, but because we have chosen that inequality.

On one hand it seems manifestly unfair that a woman, always having had certainty, should maintain both the biological rights and role rights, while the man has only ever had the role rights. Especially if we start buying into beliefs about women being inherently better suited to child rearing than men...instead of simply better socialised to be.

Perhaps we need to create new roles that would make room for both biological parents, and role parents, even outside of adoption situations? Of course, considering that in most situations where there the biological father and the father-in-role are two different people, there has been some sort of deception, else that divide would already been known. So, it would certainly be hard to create 'new roles' around deception.

I don't think we need new roles, really. It has always been possible for a child to have more than one person taking on the father (or mother) role. A child of divorce, for instance, may know his biological parents and step-parents and see them all as parental figures.

In a situations like that described in the OP, I'm stumped. I have always felt that the strongest parental rights should arise from actual parenting, not biology...unless a child has been taken away without valid reasons. I include the mother in this...if you have abandoned your child to be raised by another woman, I do feel that this other woman should have stronger rights than you to the child.

Ay, but that's a tangled web as well.

I agree that parenting is the most important. And if this guy had stepped back for 10 years and was suddenly trying to assert his fatherhood, I'd be much less likely to support his case. However, he was a father in the child's life until the mother and her husband decided to cut him out. He has pictures to demonstrate it. He has been interested in being a part of his child's life from the very beginning. He wants to be a part of the actual parenting, rather than just being the biological father.

And if the mother weren't married to someone else, he'd have the legal right to do so.

http://www.time.com/time/nation/article/0,8599,1736006,00.html?xid=rss-topstories

Last week, in a decision that underscores the tense relationship between science and law, a divided Kentucky Supreme Court told Rhoades that he could not press his paternity claim, no matter what evidence of fatherhood he might have, because J.N.R. was, and remains, a married woman. When it comes to defining fatherhood in the Bluegrass State, where Ricketts and her husband now live, the marital "I do" mean a lot more than DNA.

We generally think of custody of a child going to his biological parents. Historically, we could never really be certain who the father of a child was. By law, a woman's husband has generally been assumed to be the biological (and therefore legal) father of any children she had while married. It's generally a decent assumption to make and it was the best we had to go on for a long time.

With DNA testing, however, that assumption can be directly challenged. And, as we all know, it isn't always true. I was under the impression that a challenge like this would generally favor the biological father, and I believe that is true in some states. But this court has apparently ruled that allowing this biological father custody rights or even access to his child would disrupt the child's and the family's life. So despite clear evidence that he is the father of the child, he can have no part in the child's life that the legal parents - the mother and her husband - don't allow him.

Is this a good decision? A bad one?That's roughly what it's like in Germany. There's this legal snag where you acknowledge fatherhood that will force you to pay alimony for the kids even if you haven't fathered them, though that's currently undergoing reform.

That's roughly what it's like in Germany. There's this legal snag where you acknowledge fatherhood that will force you to pay alimony for the kids even if you haven't fathered them, though that's currently undergoing reform.

I think the word you're looking for is child support, not alimony.

But that's a different subject altogether, I think. I do think there should be a time limit on challenging legal parenthood because I think that is in the best interest of the child.

If a man has acknowledged a child as his own for years and raised that child, I actually don't think that a lack of biological connection should relieve him of that duty - and I have very little respect for any parent who would want it to.

http://www.time.com/time/nation/article/0,8599,1736006,00.html?xid=rss-topstories

Last week, in a decision that underscores the tense relationship between science and law, a divided Kentucky Supreme Court told Rhoades that he could not press his paternity claim, no matter what evidence of fatherhood he might have, because J.N.R. was, and remains, a married woman. When it comes to defining fatherhood in the Bluegrass State, where Ricketts and her husband now live, the marital "I do" mean a lot more than DNA.

We generally think of custody of a child going to his biological parents. Historically, we could never really be certain who the father of a child was. By law, a woman's husband has generally been assumed to be the biological (and therefore legal) father of any children she had while married. It's generally a decent assumption to make and it was the best we had to go on for a long time.

With DNA testing, however, that assumption can be directly challenged. And, as we all know, it isn't always true. I was under the impression that a challenge like this would generally favor the biological father, and I believe that is true in some states. But this court has apparently ruled that allowing this biological father custody rights or even access to his child would disrupt the child's and the family's life. So despite clear evidence that he is the father of the child, he can have no part in the child's life that the legal parents - the mother and her husband - don't allow him.

Is this a good decision? A bad one?

This is an excellent decision. It shows that the court used proper judicial restraint. We should not expect our courts to allow science to interfere with the political process.

If instead your question was, is this a good policy? I am not sure. If a husband wants custody of a child born of the marriage, he should not have custody of his child be taken from him or diminished in anyway for some fancy man who happened to knock up his adulterous wife.

That being said, I think that I have a personal problem with a woman who is pregnant to Man A getting married to Man B and the baby being born during that marriage and having the child be exclusively Man B's. Man A was with the woman prior to the marriage and therefore was not an adulterer.

Also, if the husband consents that the fancy man is the father he should be barred from asserting paternity so long as the consent was in writing and properly authenticated.

http://www.time.com/time/nation/article/0,8599,1736006,00.html?xid=rss-topstories

Last week, in a decision that underscores the tense relationship between science and law, a divided Kentucky Supreme Court told Rhoades that he could not press his paternity claim, no matter what evidence of fatherhood he might have, because J.N.R. was, and remains, a married woman. When it comes to defining fatherhood in the Bluegrass State, where Ricketts and her husband now live, the marital "I do" mean a lot more than DNA.

We generally think of custody of a child going to his biological parents. Historically, we could never really be certain who the father of a child was. By law, a woman's husband has generally been assumed to be the biological (and therefore legal) father of any children she had while married. It's generally a decent assumption to make and it was the best we had to go on for a long time.

With DNA testing, however, that assumption can be directly challenged. And, as we all know, it isn't always true. I was under the impression that a challenge like this would generally favor the biological father, and I believe that is true in some states. But this court has apparently ruled that allowing this biological father custody rights or even access to his child would disrupt the child's and the family's life. So despite clear evidence that he is the father of the child, he can have no part in the child's life that the legal parents - the mother and her husband - don't allow him.

Is this a good decision? A bad one?


DNA really messes with our traditional views on paternity, etc.

Geneaologists have found that in detailed exploration of family histories, especially when they have DNA evidence to go over, that a substantial number of children were not fathered by the presumed father.

If we take the original Kinsey study and its "discovery" of extramarital sex on the part of women, one shouldn't be surprised that now that we have DNA to check just about everyone, that the biological father being the "man on the side" is far more common than most people or the law would believe.

I can easily envision one or more of the majority judges in this case feeling that he needs to side with the common law rule because it is the job of the legislature and not the court to "make" new law.

This.

I think the word you're looking for is child support, not alimony.

But that's a different subject altogether, I think. I do think there should be a time limit on challenging legal parenthood because I think that is in the best interest of the child.

If a man has acknowledged a child as his own for years and raised that child, I actually don't think that a lack of biological connection should relieve him of that duty - and I have very little respect for any parent who would want it to.

lack of respect is one thing, however at the same time I generally don't support people being made to pay into obligations taken on as a result of fraud.

This.

It's very possible. But understandings of common law are not really standard, either.

In other systems with similar common law, courts have held that, in cases where a spouse cannot possibly be the biological parent, this particular common law understanding doesn't hold. Their reasoning was that the idea behind the presumption was that the spouse was generally believed to be the biological parent and that it was that biological relationship that the the legal relationship recognized.

These judges, instead, have taken the biological idea completely out of it. Instead of ruling that the common law was based in the biological idea, they have essentially ruled that the common law is due to the marriage contract itself, rather than any belief that the spouse is actually biologically related to the child.

Interestingly enough, as much as I disagree with the way the common law was used here, I do think that it would set eventual precedent for getting rid of another problem I see with the law - the fact that same-sex partners are not legally presumed to have custody of a child, even if they planned the child together. If it is the marriage contract itself, rather than the likely biological relationship, that drives this particular common law understanding, same-sex spouses would have to also be presumed to be parents.

If it is the marriage contract itself, rather than the likely biological relationship, that drives this particular common law understanding, same-sex spouses would have to also be presumed to be parents.

Sure, once same sex couples can get marriage contracts....which they can't, in any state except massachusetts, which, by the way, already recognizes legal paternity for same sex couples who adopt/have a surrogate/are artificially ensemenated.

Sure, once same sex couples can get marriage contracts....which they can't, in any state except massachusetts, which, by the way, already recognizes legal paternity for same sex couples who adopt/have a surrogate/are artificially ensemenated.

Automatically? (Adoption isn't a good example here, since that is a transfer of parental responsibility. It needs to be the biological child of one of the partners.

If a lesbian couple in Mass decides to have a child and they ask their good friend to provide the sperm for the turkey baster method (or even just to do it the old-fashioned way), is the biological mother's spouse presumed to be the child's other parent? Or does she have to fill out paperwork to that effect?

I honestly don't know the answer there. The case I recall seeing in which that was not the case was actually British. I believe similar cases have come before courts in other countries recognizing same-sex unions as well. There isn't yet much precedent on the question in the US, but there are other countries with similar common law that have looked at the question rather differently.

Also, a couple of other states claim to have "civil unions" that provide all the same protections as marriage. Do they automatically presume a same-sex partner to be a legal parent?

I think the word you're looking for is child support, not alimony.Yeah, that's what it was. The term's the same for both in German.
But that's a different subject altogether, I think. I do think there should be a time limit on challenging legal parenthood because I think that is in the best interest of the child. Yup. That's technically what happens here.
If a man has acknowledged a child as his own for years and raised that child, I actually don't think that a lack of biological connection should relieve him of that duty - and I have very little respect for any parent who would want it to.True, but what if they haven't raised the child?

If a lesbian couple in Mass decides to have a child and they ask their good friend to provide the sperm for the turkey baster method (or even just to do it the old-fashioned way), is the biological mother's spouse presumed to be the child's other parent?
That's correct. That is at the core of what being "married" means. What role, if any, the sperm donor will have in the child's life is totally up to them.

That's correct. That is at the core of what being "married" means. What role, if any, the sperm donor will have in the child's life is totally up to them.

While I would agree that it should be that way in most such situations, is it legally that way? Have there been legal cases on it yet?

I would have thought it would be that way in Britain, where same-sex unions supposedly carry the same protections as marriage, but it isn't. I would have thought it would be that way in countries that actually allow same-sex marriage and have the same general common law standards, but it hasn't necessarily been that way.

While I would agree that it should be that way in most such situations, is it legally that way? Have there been legal cases on it yet?
I don't know that the issue has come up, but the Massachusetts Supreme Court decision which legalized same-sex marriage was very strong on the point that it would be a violation of "equal protection of the laws" unless a same-sex marriage is treated exactly the same as any other. "Civil unions" allow for some kind of distinction to be preserved, which is why some gay-rights advocates consider such a move inadequate.

I don't know that the issue has come up, but the Massachusetts Supreme Court decision which legalized same-sex marriage was very strong on the point that it would be a violation of "equal protection of the laws" unless a same-sex marriage is treated exactly the same as any other. "Civil unions" allow for some kind of distinction to be preserved, which is why some gay-rights advocates consider such a move inadequate.

And that brings us back to the way common law is applied. Other countries have equal protection requirements as well. But because they saw the reason for the common law holdings more from the biological viewpoint than as something that naturally stemmed from the marriage contract, they ruled that such common law holdings would not apply to same-sex couples.

This ruling seems to have held that this stems from the marriage contract with no regard whatsoever for biological reality. By that precedent, if the state allowed same-sex marriage, I would expect the presumption of parenthood to extend to same-sex couples.

Not sure if Mass. is one of the states that allows the presumption to be challenged, though. That would certainly make a difference.

Not sure if Mass. is one of the states that allows the presumption to be challenged, though. That would certainly make a difference.
Yes it would. I have no knowledge either way, just a general impression that on any common-law issue, whichever interpretation is more archaic (in this case the "irrebuttable presumption") is likely to be the Massachusetts interpretation.

This is probably still close enough to not be a gravedig *hopes*

This truly undermines the idea that men have parental rights at all. It's horendous. I wonder what the law says when she suddenly says he has to pay child support.

Seriously, what kind of crap is that. Either men have rights AND responsibility or neither.

i remeber in texas back when i was in middle school there was stink over something like this.
this man entered into a sexual relationship with a woman. after 4 months she disappeared. he being the crazy guy that he is went looking for her and found her. It turns out she was married, her husband had a zero sperm count. So as a couple she found a guy who looked like her husband "dated him" until she was certain she was impregnated then went back to her husband.