PATERNITY: Gabriel Rosenberg

Elizabeth Marquardt raises an interesting question concerning the presumption of paternity and same-sex marriage. She writes:

"Until very recently, in heterosexual marriages all children born were assumed to be fathered by the husband. Maggie Gallagher has written that this legal assumption functioned to protect the child, and she notes that there are judges who have now bypassed that assumption and awarded paternity to the boyfriend who fathered the child. The weakening of the husband's presumed paternity puts children at risk."

I encourage anyone who can further my knowledge in this area to do so. Here is my understanding of the presumption of paternity which could certainly be wrong. Family law varies from state to state, but the common law worked something like this. A child born into a marriage was assumed to be legally the child of the husband unless the husband (or wife) rebutted this presumption and then usually only if they rebutted the assumption within a certain limited time frame. One way the husband or wife could rebut the presumption was by introducing evidence that the husband was incapable of impregnating the wife at the relevant time. The main thing was that nobody other than the husband or wife could challenge this presumption. ... Elizabeth continues:

"So what would be the case with SSM? If a lesbian woman married to another lesbian woman shows up pregnant one day, will her lesbian partner be presumed to be the child's other legal parent? In this case, as Gabriel Rosenberg states, will 'marriage make this legal responsibility automatic and immediate for children born into the marriage'? Or will the biological obvious-ness of another partner in the mix further weaken the legal power of marriage to 'legitimate' children, for children born of married gays and lesbians, but also for children born of married heteros?"

I think the case would be the same as OSM in the case of a sterile or impotent husband. That is either spouse could (rather easily) challenge the presumption of paternity. If neither did so within a certain time frame (I think it's generally around 60 days), the same-sex partner would be the legal parent and bear full responsibility for the child. I don't see why SSM would cause the law to change as the law already deals with the case of sterile husbands. This shows yet another example of how SSM can be an excellent protection for children. Without marriage if the couple raises the child for a year and then splits up, either partner might try to deny the nonbiological partner as a legal parent thus, as Elizabeth notes, putting the child at risk.

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posted by Eve at 4:20 PM | link

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