When Is a Father Not a Father?

Photo by Flickr user See Wah, used under a Creative Commons license.

You'd think that if a man contributes half the DNA to a baby and wants to be involved in supporting and loving a child, that would make him a father? Well, not in Kentucky. Yesterday the Louisville Courier-Journal reported:

A man who fathers a child during an affair with a married woman has no legal rights to fatherhood, the Kentucky Supreme Court ruled yesterday in an important decision on the legal status of marriage.

In a 4-3 vote, a deeply divided court upheld the presumption that a child born to a married woman living with her husband is a child of the marriage.

On the face of it, this decision is not terribly surprising. Determining paternity and awarding child support and custody have rarely had much to do with protecting a parent's rights or preserving their bonds to their children. Prior to the twentieth century, American states typically regarded children as their fathers' charges. That presumption withered away as the nurturing aspects of mother-work became more valued and visible, and mothers became the default custodians in the twentieth century. But the government's stake was always in 1) minimizing poor relief and social welfare obligations, and 2) serving the best interests of the child. This was also true in European countries, which - particularly from the 1700s onward, with the rise of the absolutist state - fought illegitimacy because it strained public coffers, not necessarily because it stood for immorality.

Normally, the government's role has been to extract support payments from reluctant putative fathers, whether it meant enlisting eighteenth-century midwives to interrogate unwed women in labor who had refused to give up the name of their lovers, or forcing twenty-first century men to undergo court-ordered DNA testing.

This case is different. Here, a baby has two fathers. There's the husband (Jonathan Ricketts) of the child's mother (Julia Ricketts), who by all accounts had nothing to do with his conception but wants to raise him as his own. And then there's the mother's ex-lover (James Rhoades), who is the baby's biological father and who also wants a role in his son's upbringing.

In days of old, the law tried to guarantee the child a stable home and financial security by presuming that the mother's husband is also the father. But now, genetic testing can sweep away this presumption, at least on the scientific level. In 2004, a Maryland court refused to even order a DNA test in a similar case where a putative father wanted to claim paternity of a child he allegedly sired with his married ex-lover, citing the best-interests-of-the-child standard. Legally, this area seems to be a bit of a mess:

According to one of the dissenting opinions, 33 states allow a man to challenge the presumption that a child born to a married couple is the husband's.
(Source: Louisville Courier-Journal)

But apparently this won't work in Kentucky case, even though DNA testing showed Rhoades to be the baby's biological father. The court rejected his suit mainly on the basis of a formality, saying it lacked standing to judge on the matter. But only two of the seven judges signed off on that opinion; in all, the fractured court produced five (!) different opinions. The one that's getting the media attention is this:

"While the legal status of marriage in this early 21st century appears to be on life support, it is not dead," Justice Bill Cunningham wrote in a concurring opinion. He wrote that married couples have a right "to be left alone" from the claims of "interloper adulterers."
(Source: Louisville Courier-Journal)

Cunningham is oddly putting neither the state's financial interest nor the child's well-being front and center. Instead, he's invested in protecting "marriage." Whatever happened to the best interests of the child? Isn't it up to the Ricketts to rebuild their marriage, if they can, and not for the judge to protect either their specific union or some abstraction called "marriage"?

And what's up with this "interloper" language? Cunningham makes it sound as though Rhoades carried Julia Ricketts off against her will on a galloping stallion. In fact, no one involved seems to be claiming anything of the sort. From all appearances, Julia and James had a consensual relationship that ended bitterly. Why should we assume she had no part in the decision to stray from her marriage?

If you call the man an interloper, it saps the woman of all moral agency. In this situation, Julia actually had immeasurably greater responsibility to her marriage than James did; she's the one who made the vows to Jonathan. What business does a judge have absolving her of that? Isn't the question of her culpability (or any mitigating factors, since we don't know what went on inside that marriage) a matter for the couple to figure out for themselves?

Cunningham might be working from the assumption that a wife couldn't possibly have wanted sex of any sort, much less the illicit kind; that she must have been seduced or coerced, because only men are horny. He might also be viewing the marriage - and the wife - as the husband's domain or even property, which the "interloper" interfered with. If he's going to hark back to early modern principles, Cunningham might at least reaffirm the traditional concern for the child, rather than the husband's rights as head-of-household.

What would it take to put the "best interest of the child" back at the forefront? Multiple commentators have noted that the Uniform Parentage Act of 2002 would address this quandary, bringing the law closer to science, human decency, and common sense. Only a handful of states have adopted versions of it thus far. The relevant portion states:

The presumption [that the mother's husband is also the child's father] is rebutted by a court decree establishing paternity of the child by another man.

This would obviously open the door to Rhoades claiming paternity.

I don't think there's any easy resolution to this case; everyone involved is going to feel pain over it for the rest of their lives. You can see this immediately in James Rhoades' blog; even though he's writing mostly about his own pain, through it you glimpse entire parallel universes of hurt. It's evident that no one will come out unscathed, least of all the beautiful toddler at the center of the storm. But this decision - which at once grants mothers power to behave irresponsibly (see blogger Stephanie's take on this) and degrades wives and children to a husband's property - clearly does not do justice to either Rhoades or the child.