Unfortunately, paternity laws are seen by some to be flawed. It is claimed that when men are lied to about contraception (or even raped), certain paternity laws give them no defense.
Paternity is the social and legal acceptance linking a father to his child and a child to its father.
A child born to the wife during a marriage is presumed to be the husband’s child, as determined by common law. This concept is the “presumption of lawful paternity“, and gives to the husband complete rights, duties and responsibility as to the child, in spite of whether he is the true parent or not.
However, the presumption can be refuted by evidence to the contrary. At least before a court issues an official settlement of paternity in the husband’s favor, or a duty of support is established by a decree of divorce or legal separation.
Jurisdictions differ extensively on whether, when, and under what circumstances a ruling determining paternity or a support commitment founded on the presumption, can be set aside on the basis that the husband was not in fact the natural father.
In the case of an un-married mother a man may come to the fore and accept the paternity of the child, the mother may appeal to the court for a determination if she can identify the likely candidate(s), or paternity can be determined by estoppel over time.
Where paternity of the child is uncertain, any person with an interest can ask the court to decide paternity, of one or several possible fathers (called putative father) initially based upon sworn statements and then upon testimony, including but not limited to:
Lack of access to the mother by the putative father during the same time period
Sexual associations by the mother with a man other than the putative father, with a description of the conditions of the child’s conception
Scientific proof (blood group, HLA marker, DNA testing, etc.) showing the probability of the putative father being genetically related
Other admissible proof that may tend to ascertain paternity such as testimonial against interest made by the putative father
Generally, hospital records and a birth certificate are not adequate to offset this supposition of lawful paternity. A successful application to the court results in an Order of Filiation, and transferring paternity to a particular man. The true biological father must now support the child and may also, generally speaking, have access to the child.
In a marriage where the natural father is unknown, or without financial means, the court may find the husband responsible for supporting the child. In some jurisdictions the courts have also stated the man who acts as the child’s father to be the father through the equitable process of an estoppel. Once the child has been affirmed to be a son or daughter and has lived with the man for a period of time, the court may cloak the putative father with all of the responsibility of parenthood letting the biological father, “off the hook” so to speak.
In calculating the date of conception, one should remember that the duration of a human pregnancy period is roughly 9 months, less 7-11 days.
A child born to the husband and wife before marriage usually becomes a child of the marriage when the marriage is completed. This was the old rule from canon law (the law of Roman Catholic and Anglican churches), but at common law retroactive legitimacy was not bestowed on a child by the marriage of the parents after the child was conceived; a matter of some importance when birthright was at issue. The different rules have largely been abrogated in the United States by a series of judicial rulings or legislation curtailing or minimising the disabilities of illegitimacy.
Unfortunately, paternity laws are seen by some to have flaws. It is claimed that when men are lied to about contraception (or even raped), certain paternity laws give men no defense.
Advocates of paternity law change, such as the US National Center for Men, have a “Voluntary Fatherhood” scheme, which points out that these laws discriminate against men and correspond with an increase in out of wedlock births.
Some paternity laws are claimed to also make men support children that they were duped into thinking were theirs.
