Emerging Issues in Paternity Establishment: Symposium Summary. Stability


Symposium Discussion

All symposium participants considered "stability" for children a critical value in weighing the competing interests in whether or not to permit paternity to be challenged. However the discussants quickly acknowledged that term encompassed a range of issues pertaining both to child well being and legal status. The group first explored varying concepts of "stability", without reaching a consensus definition.

A commenter pointed out that in child welfare, stability is important to all developmental phases of children and essential to growing up competent and secure. Without stability, the child lives in chaos. Child welfare experts use the term with particularity, measuring the child's living arrangements during a prior period  6 months or a year. The opposing child welfare concept is disruption. Several participants linked the need to study the emotional impact of disruption on children with ascertaining the "best interest of a child". Conferees noted that the few studies available focus on adoption disruption, not the withdrawal of a father through paternity disestablishment. There was a consensus that measuring disruption and stability needs to be made relative to the child's developmental level.

A conferee noted that the interests and what is required to satisfy the various "stakeholders" in a paternity disestablishment decision, are not necessarily going to be stable over time. For example, even assuming the genetic father may best meet the child's emotional interests in love and support at the time of the child's birth, after a paternal relationship is formed between father and child, that need may be best met by preserving the stability of the existing relationship, regardless of whether it is with the genetic father.

A participant pointed out that in terms of family law, stability, like "best interest of the child" is an imprecise term, ascertained on a fact-driven case by case basis. Another discussion examined the fact that while the law tends to protect legal stability, it cannot ensure social stability. One question is the extent to which courts weigh stability in determining whether or not to grant genetic testing requests.

Little is known about how paternal discrepancy and the paternity disestablishment process affect the father-child relationship  and the mother-father relationship  and interact with overall child wellbeing. Participants identified at least three categories of cases where quality and stability of the relationship might be explored: disestablishment is raised but testing is blocked based on legal principles such as res judicata; genetic testing establishes that the legal father is not the child's biological parent but paternity is not disestablished on other grounds  such as the family remains intact and it is a third party who seeks to assert his rights; and, father (or mother) asserts he is not the child's biological parent but genetic testing proves him wrong. More than one symposium member suggested that the threat of instability alone causes harm. Depending on the age of the child, despite confirmation of bio-identity, the challenge itself is disruptive. While laws such as the UPA (2002) aim to balance the outcomes  and favor the interests of children over adults  participants discussed whether the law can prevent or mitigate harm in an environment of inexpensive, non-invasive, self help genetic testing.

Research Needs

  1. Symposium participants found many unanswered questions on the interaction between child wellbeing, stability, and paternity disestablishment. In particular, there was interest in identifying more common ground between family law/child support and child welfare/adoption contexts, including considering the "best interest of the child." In addition, research on the interaction between paternity disestablishment and child wellbeing could be informed by research on child wellbeing and adoption disruption.

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