Challenging the Presumption of Paternity
| Jurisdiction | Kansas,United States |
| Citation | Vol. 65 No. 12 Pg. 36 |
| Pages | 36 |
| Publication year | 1996 |
65 J. Kan. Bar Assn. December, 36 (1996). CHALLENGING THE PRESUMPTION OF PATERNITY
December, 1996
Copyright (c) 1996 by the Kansas Bar Association; Sheila Reynolds
Introduction
With the waning of much of the stigma attending children born out of wedlock, increasingly family law practitioners are handling divorces and paternity actions in which either: (1) a child has been conceived or born during a marriage, but the husband or wife or both deny that the husband is the father, or (2) an unmarried couple has named a man as the father on a child's birth certificate, even though the man is not the biological father, and now one or both want to change that designation. [FN1] In both of these situations, there is a presumed legal father and action to rebut that presumption may be difficult.
The law at issue has changed substantially during the past 10 years, beginning with the passage of the Kansas Parentage Act in 1985 [FN2] and subsequent judicial interpretation of that act, the important 1989 decision of the Kansas Supreme Court of In re Marriage of Ross, [FN3] and a handful of other appellate decisions that interpret the law of paternity presumption. Some provisions of the Uniform Interstate Family Support Act (UIFSA), adopted in Kansas in 1994, [FN4] also bear on challenges to paternity presumptions. Handling a challenge to a presumption of paternity requires familiarity with all these resources.
This article attempts to marshall the various sources of law to explain when and how a presumption of paternity may be made. It also discusses approaches to handling several related questions, including: (1) Is there a constitutional right to challenge a paternity presumption? (2) Can paternity of children be challenged in a divorce proceeding? (3) If not, is there another avenue for litigating paternity? (4) What if the child is not yet born prior to the divorce? (5) If the wife in a divorce action is pregnant by another man and does not want her husband to know, may her attorney omit reference to the pregnancy in the proceedings? (6) Once a finding of paternity has been made in a divorce judgment, can that be set aside? (7) In rebutting a presumption of paternity, what constitutes the "best interest of the child?" (8) What are the duties of a guardian ad litem (GAL) in these cases?
*37 The paternity presumption in Kansas
Whenever the issue of paternity arises, the first inquiry should be whether the named father is a "presumed" father under the law. The Kansas Parentage Act sets forth several circumstances in which a man is presumed to be the father of a child. [FN5] Presumed fathers include a man:
who is married to the child's mother when the child is born or conceived; [FN6]
who marries the child's mother after the child's birth and has either: (1) acknowledged his paternity in writing; (2) consented to being named as the father on a birth certificate; or (3) has promised in writing or has been ordered to pay child support. [FN7]
who notoriously or in writing recognizes his paternity of the child, including voluntary acknowledgments; [FN8]
for whom genetic test results indicate a probability of paternity of 97 percent or greater; [FN9]
who has been ordered to support the child, whether or not he has ever been married to the child's mother. [FN10]
Multiple presumptions
Of course, it is possible for two or more men to be presumed the father of the same child. For example, if the mother is married to one man at the time of conception, but divorced during the pregnancy and married to another man at the time of birth, both are presumed to be the child's father. When there are such conflicting presumptions, the Parentage Act mandates that the one based on the weightier considerations of policy and logic, including the best interest of the child, controls. [FN11] In such situations, with all the men joined as parties if possible, or at least given notice of the proceeding, the court should hear evidence about the facts relevant to the presumption and the best interests of the child, and then determine which presumption makes more sense.
Consequences of the presumption.
The paternity presumption carries four significant consequences in a paternity action: (1) the burden of proof is shifted to an opponent of the presumption to rebut it by clear and convincing evidence; [FN12] (2) there is no statute of limitations (with no presumption, the action must be filed within three years after the child reaches 18, unless the Kansas Department of Social and Rehabilitation Services is bringing the action); [FN13] (3) an order for support may be entered without further paternity proceedings; [FN14] and (4) the presumption cannot be rebutted by genetic tests until the court considers whether a challenge to the presumption would be in the best interests of the child. [FN15]
Rebuttal of the presumption.
On its face, the Kansas Parentage Act purports to make an issue of paternity a scientific matter: "Whenever the paternity of a child is in issue in any action . . . in which the child, mother and alleged father are parties, the court, upon its own motion or upon motion of any party . . . , shall order [the parties] to submit to genetic tests." [FN16] The Kansas Supreme Court altered that directive with its decision in the Ross case, holding that when a child has a presumed father, no genetic tests can be ordered until there is first a hearing, generally with a GAL representing the child, [FN17] on the issue of whether a rebuttal of the presumption is in the child's best interests. The court's decision must be based on "facts in the record." [FN18] Although Mr. Ross argued for an "evidentiary
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hearing" and the court of appeals has interpreted the Ross holding as requiring an evidentiary hearing, [FN19] the supreme court did not actually hold that an evidentiary hearing was necessary. Instead it spoke of "facts in the record." Although in most cases those facts will be developed in an evidentiary hearing, it is possible that they could also be presented by stipulation.
The import of Ross is that for some children, it is best to continue the presumption that a man is the child's father rather than using scientific evidence to prove he is not the biological father. The court reiterated the longstanding public policy of the state that children born during a marriage should not be "bastardized." [FN20] If the child has established a relationship with a man thought to be the child's father, it may be detrimental to the child to disturb that relationship. The presumed father may be more willing to continue giving the child emotional and financial support than the biological father. [FN21]
If a trial court determines that it is not in the child's best interest to have genetic tests ordered, the practical effect is that the presumption of paternity is irrebuttable. Although the Ross decision focused only on genetic tests, the court's rationale for its decision clarifies that in appropriate cases, no challenge to the presumption should be allowed, regardless of the type of evidence presented.
The Ross hearing requirement in interstate enforcement of child support
The question of which state's paternity laws are to be used in litigating an interstate case was not clearly defined under the Uniform Reciprocal Enforcement of Support Act (URESA). In 1994, URESA was replaced in Kansas by UIFSA, which provides that, when Kansas is a responding tribunal determining whether a Kansas resident is the parent of a child, Kansas must apply its own procedural and substantive law. [FN22] Prior to the adoption of UIFSA, the issue of which state's substantive law governed these proceedings was addressed by the Kansas Court of Appeals in Florida v. Breeden. [FN23] The court held that the Kansas law of paternity and child support must be applied in URESA proceedings. [FN24] Thus adoption of UIFSA codified this holding in Breeden.
The significance of applying Kansas law, as explained in Breeden, [FN25] is that there must be a Ross hearing on the issue of the best interests of the child prior to ordering genetic tests, even when the case is initiated by another state where the petitioner resides. In Breeden the appellate court required that the trial court in the initiating state must hold the hearing and decide whether the best interests of the child permits allowing the rebuttal of a paternity presumption.
What are the "best interests" of a child when the child's paternity is challenged?
The Ross court stated that consideration of the child's best interests in this context must include the physical, mental and emotional needs of the child, but provided no further guidelines for examining those needs. Nonetheless, Ross and subsequent Kansas decisions, Jensen v. Runft [FN26] and In re D.B.S., [FN27] suggest questions with which a trial court should be concerned:
Have the presumed father and the child established a relationship? Does the presumed father provide the child with affection and companionship? How would the child be affected if that relationship were terminated by a determination that the presumed father was not the father?
Does the presumed father want to continue to serve as the child's parent? What is his attitude about providing financial and emotional support for the child?
What is the relationship between the putative father and the child? What is his attitude about providing financial and emotional support for the child?
If the presumed father is determined not to be the father, is there another man who will be determined the father? Or will the child be left with no legal father?
Who does the child believe the father is? What would be the likely emotional impact on the child to find out...
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