AuthorJeffrey Lehman, Shirelle Phelps

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The state or condition of a father; the relationship of a father.

English and U.S. COMMON LAW have recognized the importance of establishing the paternity of children. In the United States, a child born outside a legal marriage relationship will lose CHILD SUPPORT and inheritance rights if the fatherhood of the child is not legally established. The father may voluntarily acknowledge paternity in a legal document filed with a court

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or may agree to have his name listed as the father on the child's birth certificate. If the man disputes fatherhood, the mother or the state government may initiate a legal proceeding, known as a paternity action, to adjudicate fatherhood.

The common law also established the "marital paternity presumption," which holds that a child born during a marriage is the offspring of the husband. Therefore, a child born as a result of the wife's adulterous affair is recognized as a legitimate child of the marriage. This rule recognized that ILLEGITIMACY brought social stigma as well as severe economic penalties to a child, including the inability to inherit from the husband of the child's mother. By establishing a presumption of paternity and therefore legitimacy, the rule promoted family stability and integrity.

This rule was developed at a time when no medical tests existed to prove paternity. In addition, a husband could not testify that he had no access to his wife at the time of conception. A husband could rebut the marital presumption only by proving his impotence or his absence from the country.

By the late nineteenth century, U.S. courts began to allow the defense of impossibility to rebut the marital presumption. The question of paternity became a fact that could be rebutted by clear and convincing evidence that procreation by the husband was impossible.

The Impossible Heir

In contemporary law the legal determination of paternity generally rests on the results of blood and genetic testing. However, there are times when it can be proved that it was impossible for a husband to be the father of his wife's child because the husband was absent during the period when conception occurred.

In an unusual reversal of modern law on paternity, the Alabama Supreme Court, in Tierce v. Ellis, 624 So. 2d 553 (1993), found that Dennis Tierce was the legitimate son of William Tierce, even though William was serving overseas in the armed...

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