Thinking About Custody and Support in Ambiguous-Father Families
Ira Mark Ellman
Arizona State University College of Law; Arizona State University (ASU) - Department of Psychology; Center for the Study of Law and Society, Berkeley Law, University of California, Berkeley
Family Law Quarterly, Vol. 36, p. 49, 2002
The traditional law in principle often treated biological paternity as determinative of legal paternity, however, biological paternity was not usually possible to determine. The paternity presumptions established by social relations therefore usually prevailed where the social relations existed. The rule presuming that a married woman's husband was the father of her child was the most important example. In the last two decades, scientific advances have allowed the unambiguous establishment of biological paternity in essentially all cases. The result is that the traditional focus on biological paternity can now yield new results. First, because it is now possible to learn that a child's firmly established social father is not, in fact, the biological father, legal paternity can be reassigned years after a child's birth. Second, biological paternity, and thus legal paternity, can be established for children who have had no social father. Because scientific advances make such results, once rare, now potentially common, the law must confront a question has often been ignored: whether legal paternity should necessarily be equated with biological paternity in such cases, here referred to as cases of ambiguous fatherhood. This paper suggests that the formal law should be changed, where necessary, to preserve at least a portion of the pre-scientific practice, and thus the traditional alignment between social and legal paternity. It also suggests that our willingness to impose child support obligations upon biological fathers who are not social fathers is based upon policies which, when correctly understood, do not necessarily apply to all biological fathers.
Keywords: Paternity, fatherhood, child support
Date posted: September 3, 2009
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