Paternity Misrepresentation: A Florida Court Rules That a Husband Waited Too Long to Disprove Fatherhood, and Reaffirms His Status as the Child's Father

By JOANNA GROSSMAN
lawjlg@hofstra.edu
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Tuesday, Dec. 27, 2005

This month, in the case of Parker v. Parker, a Florida appeals court held that a man can, against his will, be deemed a father and obliged to support a child born to his wife during their marriage, despite the fact that the two have no biological or adoptive relationship.

This result may seem counterintuitive to some readers. A man like Richard Parker tends to evoke some immediate sympathy - he's the poor sucker who will pay support for a child conceived by his ex-wife during an adulterous affair.

But is the "poor Richard" impulse enough to justify allowing him to disestablish paternity at any time, and at any cost to the other parties involved?

The Florida court said no, and gave good reasons for doing so.

The Facts of the Parker Case

To begin, here are the relevant facts and decisions in the Parker case itself: Richard and Margaret Parker married in 1996, and Margaret bore a child in 1998. When the couple divorced in 2001, the court awarded custody of the child to Margaret and ordered Richard to pay $1200 per month in child support.

When Margaret sued two years later for unpaid child support, Richard subjected the child to DNA testing and discovered that he was not the child's biological father. He thus filed an independent suit to disprove paternity, and to seek damages for what he claimed was his ex-wife's false representation that he was the child's father.

In that suit, he alleged that Margaret had known all along he was not the child's father and had purposefully concealed that fact from him. He asked a Florida court to force her to pay him damages to compensate for his past and future child support obligations.

The trial court dismissed Richard's petition, and, this month, as noted above, a Florida appellate court affirmed. As a result, Richard remains the child's legal father, with an obligation of support - and will not receive damages from Margaret for the value of his past and future child support payments.

Why did the court reach this result? To answer that question, it's necessary to look into the traditional legal relationship between marriage and fatherhood, and more modern trends on this issue.

The Traditional Relationship Between Marriage and Fatherhood: An Inextricable Tie

Traditionally, the law presumed a husband to be the father of any child born to his wife during the marriage or within 300 days after it was terminated. The presumption in many states was conclusive - in other words, not legally rebuttable with any factual evidence about parentage - and thus, it was the final word on a child's paternity. That meant a man could be deemed to be the father of his wife's child by another man, even if all parties knew it was not his.

How common is the situation in which a marital child has a father that is not the husband? A few years back, a survey suggested that as many as 5 percent of all marital children were fathered by someone other than the mother's husband - a statistic that many at the time found alarming. Earlier studies had suggested an even higher percentage.

The Relationship Between Science and Law: We Can Prove it, but Should We?

The "legal father" presumption, of course, long predates DNA testing. That's significant because when the presumption was adopted, efforts to prove or disprove paternity were likely to be reputation-marring and often sordid but unlikely, in most cases, to produce any verifiable "truth." Also, if such efforts led to a court case, even young children might learn, in a legal battle, that their father thought their mother had been unfaithful and sought to cut off paternal obligations to them. Rather than embark on a nasty battle with no clear resolution, and with children's fates and psyches at stake, courts preferred to just assume a wife had been faithful.

But science has changed the nature of the inquiry - from a highly speculative one, to one that can produce virtual certainty. DNA testing can establish paternity (or the lack thereof) with near 100 percent accuracy. And it can do so unobtrusively, with cells collected from a mere inside-the-cheek swab of father and child and sent through the mail to a lab. The father-child relationship, then, need not be harmed by his open questioning of parentage.

The fact that paternity can be disproven factually does not, however, mean that it should be disprovable legally. The questions remain: Should the law permit the disestablishment of paternity for a child born during a marriage? And if so, under what circumstances? Not only Parker, but many similar cases in other states have offered answers to this question in recent years.

One of the justifications for the traditional approach - that the "truth" would be elusive in most cases and thus not worth the damage the process of seeking it might entail - is no longer valid for most cases. But are there other justifications that still favor adhering to the traditional approach?

Florida Law: Why the Court Still Deemed Richard Parker the Child's Father

Under the rulings in previous Florida cases, it is clear that a husband who can disprove paternity during a divorce proceeding cannot be required to pay child support.

In the Parker case, however, the mother represented to the court during their divorce proceeding that Richard was the father, and, at that time, he did not object or offer any evidence to the contrary. The court thus considered the child to be "a child of the marriage" and, on that basis, ordered Richard to pay child support.

Three years later, however, Richard did seek to rebut Margaret's representations with genetic evidence he had obtained during a visit with the child - evidence that clearly excluded him as the biological father. So the real question before the Florida court was whether this new evidence would convince it to reopen its old determination as to fatherhood.

As a general rule, parties are barred by the doctrine of res judicata from relitigating issues that have been previously adjudicated by a court. (This rule, of course, does not apply to the regular appeals process.)

Even before Parker, that rule had been previously applied in Florida, in Dep't of Health & Rehabilitative Services v. Robison, to bar a father from disestablishing paternity after divorce, because the divorce decree had referred to the children as "children born of the marriage."

But Richard used a new legal tactic: He tried to avail himself of a Florida provision that permits relief from judgments founded on fraud. According to Richard, Margaret committed fraud not only on him, but also on the court, when she represented during the divorce proceeding that Richard was the child's father. Thus, he argued, he should be relieved from complying with the support judgment, which was founded on her alleged fraud.

Florida law, however, distinguishes between "extrinsic fraud" (fraud involving an issue collateral to the case, or a party's ability to participate in the proceeding) and "intrinsic fraud" (fraud that pertains to the issues in a case). Under the relevant statute, claims of intrinsic fraud must be raised within one-year of the relevant adjudication. If not, they are forever barred. Claims of extrinsic fraud, on the other hand, can be raised at any time.

The court of appeals here denominated Richard's claim to be one of intrinsic fraud - one that could have been raised and resolved during the marital dissolution proceedings. This classification seems plainly correct: Certain, one of the issues in a divorce proceeding, when children are involved, is paternity - and as noted above, this proceeding expressly addressed that issue.

The court reasoned, then, that the one-year time limit applied, and that Richard's failure to bring the issue to the court's attention with that time period, therefore precluded him from bringing it at all. (Remember, he waited over two years to institute the suit to disestablish paternity.)

The Parker court noted that decisions from many other jurisdictions (including Texas, Arkansas, Vermont, and Oklahoma, among others) have taken a similar approach. In all of them, the parties' interest in finality, and the child's interest in having continued access to financial support, were important to the outcome.

The Modern Trend: A Limited Opportunity to Disestablish Paternity of Marital Children

The approach in Parker is consistent with the modern trend. That trend gives the father some time to disestablish paternity -- influenced by technology's greater ability to prove parentage. Yet, without disproof of paternity presented within the legally-set time period, the modern trend remains faithful to the traditional interests in presuming marital fidelity, protecting the relationship (both emotional and financial) between parents and the children they have treated as their own, and honoring the finality of judgments.

This approach is also replicated, in broad brush, in many states' statutes. To guide the determination of legal parent-child relationships, nineteen states have adopted the Uniform Parentage Act (UPA) of 1973. (The UPA is one of many uniform statutes promulgated by the National Conference of Commissioners on Uniform State Laws that states are encouraged to incorporate into their own state codes.)

Under the original version of the UPA, a father could seek to disestablish paternity within five years of the child's birth. But the revised version of the UPA, promulgated in 2000, amended in 2002, and adopted so far by only a handful of states, takes a slightly different: It expressly takes account of the newly acquired ability to accurately prove and disprove paternity, but also tries vigorously to protect the best interests of the child.

The revised UPA thus allows for the disestablishment of paternity, even for children born in wedlock, but limits the time within which the party seeking disestablishment must act. (I say "the party" and not "the husband" here because such proceedings are not always brought by the husband: Sometimes, the wife or the biological father tries to disestablish parenthood of the presumed father, so that the parenthood of the biological father can be recognized.)

The revised Act continues to apply the traditional marital presumption of paternity, but permits it to be rebutted in two ways:

First, it can be rebutted if all three parties --- the wife, the husband, and the biological father - enter into a voluntary agreement to this effect, one that becomes binding after a short period of time.

Second, it can be rebutted in a suit to disestablish paternity, as long as the suit is filed within two years of the child's birth. A later suit can be filed by the husband only if he can prove both that there was no opportunity for conception because he did not cohabit or have sexual relations with the mother during the requisite period and that he did hold the child out as his own.

To avoid unnecessary intrusiveness into a couple's marriage and sordid details about infidelity, the Act also states that genetic testing is the only evidence admissible to disestablish paternity.

Moreover, to avoid surreptitious testing by one parent - against the wishes of the other - the Act also makes inadmissible results from any DNA test unless it was either court-ordered or obtained with the consent of all relevant parties. (In other words, secretly grabbing the child's toothbrush, retainer, or used Bandaid, CSI-style, is out of bounds.)

Finally, under the UPA, if paternity has already been adjudicated, either in an independent proceeding or as part of a divorce decree, the true biological father can seek to disestablish it only by court order, and only if the petition to vacate the finding of paternity is brought with two years of the adjudication.

The Modern Trend: DNA Evidence Can Disprove Paternity, But Only If Timely Offered

The general trend among the states is consonant with the UPA's approach: The trend is to offer a time-limited opportunity to disestablish paternity if there is reliable scientific evidence available. But at the expiration of that period - whether it be determined by the child's age, or the lapse of time following a divorce or other adjudication of paternity - the parties have to learn to let sleeping DNA lie. (A useful summary of the issues raised in these cases can be found in an article by Paula Roberts, Questioning the Paternity of Marital Children, available at www.clasp.org).

This approach may seem harsh in some cases. But it has the advantage of encouraging parties to raise parentage questions early on, before deep ties have been created between adult and child, and during appropriate legal proceedings when they can best be resolved.

While it is easy to see Richard's side of the story here, let's not forget another party's side: As the Parker court noted, disestablishment of paternity might satisfy Richard, but would likely also trigger "the psychological devastation that the child will undoubtedly experience from losing the only father he or she has ever known."


Joanna Grossman, a FindLaw columnist, is a professor of law at Hofstra University. Her columns on family law, trusts and estates, and discrimination, including sex discrimination and sexual harassment, may be found in the archive of her columns on this site.