Emerging Issues in Paternity Establishment: Symposium Summary. Implications of Principles of Family Law Presented by Marsha Garrison


Presented by Marsha Garrison

Garrison posits that throughout history and family law, it is the preference for children's interests which leads to the identification of two legal parents from whom children may enjoy care and support. Two parents offer greater insurance to the child for economic support as well as physical and emotional caretaking. Family law uses a variety of tools to achieve these results, including procedural presumptions, evidentiary rules, equitable principles, and substantive law.

Specific doctrines tend to reflect the social and economic conditions that lead to stresses in family life. At one time, common-law courts relied on the marital presumption of legitimacy and a ban on parentage establishment by illegitimate children to accomplish this aim. Today, courts turn to a variety of sources  marital status, contract, evidentiary presumptions, equitable doctrines such as estoppel and laches, procedural principles such as res judicata and collateral estoppel  to meet the same goal. Legislatures, citing children's interests, have adopted statutory standards governing child custody, support, visitation, adoption, child protection, paternity establishment and disestablishment that also aim at ensuring two-parent care where possible and preserving the child's existing parental bonds.

New paternity disestablishment statutes that permit disestablishment based on biological evidence and without consideration of the child's interests conflict with these long-standing policy goals, but procedural safeguards against erroneous parentage determinations  enhanced notice requirements, counseling, mandated or suggested genetic testing  do not. A key goal that needs to be accounted for is to provide two-parent care where possible and preserve established relationships where relied on by the child. However, when paternity is misattributed, the parent  child relationship is more fragile. Shock, anger, and rejection are clearly not in a child's best interest. Because safeguards against erroneous paternity establishment do not conflict with family law's long-standing commitment to children's interests, such safeguards should be preferred to liberal disestablishment procedures, which may conflict with children's interests.

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