Schwarzenegger’s Paternity Case Brings Attention To ‘Duped Dads’
Arnold Schwarzenegger’s “love child” has brought greater attention to a critical flaw in many states’ paternity laws; that a child “of the marriage” is the responsibility of the husband even if the child is not his.
In general, according to Cordell & Cordell mens divorce attorney Leslie Lorenzano, if the husband and wife are still technically married when a child is born, the husband is presumed by the court to be the father of her child.
So, in Schwarzenegger’s paternity case, he isn’t obligated to pay any child support, but the duped husband might be since he is presumed to be the father because the child was born into the marriage. Getting the biological parentage wrong can have serious and damaging medical consequences for children.
In a written commentary appearing in the Los Angeles Daily News, Ned Holstein and Glenn Sacks, chairman and executive director, respectively, of Fathers and Families, said judges routinely (and at times apologetically) saddle such “duped dads” with stiff child support orders.
“This ancient presumption is anachronistic and destructive, and has led to horrendous injustices. In some cases, a divorced man must pay child support for the child of his ex-wife and her paramour – and pay it into the household where the paramour and the ex-wife, the two biological parents, now live!” Sacks and Holstein wrote. “In others, there’s ‘father shopping’ – if mom can get more child support out of her ex-husband than her ex-boyfriend, then he’s ‘dad.'”
Holstein and Sacks argue that DNA testing is cheap and widely available so “why do we still employ archaic legal presumptions to determine paternity? Moreover, we respect women’s biological ties to their children, as hospitals make substantial efforts to ensure that newborns go home with the right mother. Why shouldn’t men’s desire to ensure biological ties be similarly respected?”
There is also the issue of rights (or lack thereof) for the biological father who wants to be involved in the child’s life. For example, Michigan does not give biological fathers parental standing if the mother of the child is married at the time of birth to another man.
Some states are doing something to protect “duped dads.” Texas Gov. Rick Perry recently signed a bill into law that exonerates men from their duty to pay child support in circumstances involving mistaken paternity and paternity fraud.
If the alleged father can prove through DNA testing that the child he is ordered to pay support for is not biologically his, then he would be released from his child support obligation.
Generally, to rebut the presumption that the husband is responsible for his non-biological child, the husband and wife can present to the court that the child is not a child “of the marriage” (that there is a different biological father), and the court, in its discretion, can accept this showing, according to Lorenzano.
This can usually be done by submitting sworn affidavits to the court stating that the husband is not the biological father of the child. Depending on the judge, some courts may require that paternity be established by the biological father prior to declaring that the child is not a child of the marriage.
The divorce lawyers for men at the Cordell & Cordell Law Firm handle many domestic litigation issues, including paternity. Contact the Cordell & Cordell office nearest you for more information.