The Presumption of Legitimacy and Legal Rights to Children- time to revise the law

Paternity cases are usually pretty straight forward.  Either the mother of a child petitions the court to establish paternity of a purported father of her child, or the father petitions the court to establish his rights as a parent.  A DNA test is done, the father is either declared to be a match or not to be a match, and said test is usually determinative of the case.

However, when the mother of the child was married at the time the child was conceived and/or born, paternity cases become a little more complicated.  There is a presumption that goes into effect, known as the presumption of legitimacy.  To put it simply, it is presumed that the man married to the mother at the time of the conception and/or birth of the child is the father of the child.  Thus, unless and until this presumption is rebutted, no further inquiry as to the child’s paternity would be permitted.

This presumption was written into law well before the age of genetic testing, which can answer the question of paternity with 99.9% accuracy.  The reason for this presumption was because it was deemed to be in the child’s best interest to be considered legitimate.  Additionally, when there was no other potential father for the child, it prevented the presumed father from claiming he was not responsible for the child, thus leaving said child without a father at all.

However, in practice, the presumption can actually have the opposite effect than that of it’s intended purpose and hinder the best interests of the child involved.  For instance, I have seen mothers attempt to use the presumption to keep the fathers from asserting the rights to their children, even after years of the father being intricately involved in the child’s care, and when the mother’s husband had no involvement in the child’s life whatsoever.  I have seen fathers attempt to avoid having to submit to a DNA test and take responsibility for their child simply because the mother was married to someone else; notwithstanding the fact that the mother and husband were separated at the time, and possibly living in two separate states.

In both scenarios, it is clear that the child’s best interest is not served by hiding behind the presumption of legitimacy.  While it is true that the presumption is a rebuttable one, it seems that most magistrates have no idea what it takes to actually rebut it.  Some require proof that the mother and husband had no access to each other at the time of conception, a nearly impossible task unless mother and husband are willing to testify.  Some require that the presumption be overcome before genetic testing is ordered, despite the fact that genetic testing can be used as evidence to overcome the presumption.

The fact is that the law states that upon request, genetic testing should be ordered unless it is determined that such genetic testing is not in the best interests of the child as a result of the presumption of paternity.  This, in and of itself, is confusing and no one quite knows how to apply this.

It seems clear that the presumption needs to be revamped, if not completely discarded.  There is a principal in paternity cases called equitable estoppel.  That is, if a man has held himself out to be the father of a child, bonded with said child and supported said child, he will be estopped from asserting a claim that he is not the father, as this would be detrimental to the child.  The man would not be entitled to genetic testing in this case, and would be deemed the legal, responsible father to this child regardless of biology.  It seems, at this point in time, that this principal should apply equally to mothers who are attempting to deny fathers legal rights to their children simply because they were married to someone else at the time of the child’s conception and/or birth.  Namely, if a man has held himself out to be the father of a child, has built a relationship with this child and supported this child, the mother and Court should be estopped from denying this man legal rights to the child.  It seems that this principal would serve a child’s best interests more than the presumption of legitimacy does.

Additionally, in cases where a husband has no relationship with the child and another man is attempting to assert his rights to the child, what is the harm of automatically granting this man genetic testing? If the test is positive, this child now has a father who wants to build a relationship with them and be legally responsible for them. If it is negative, the mother’s husband would still be held legally responsible and the child is no worse off than before the test was done.

Maybe both the presumption and genetic testing need to be replaced with  a strict best interest analysis.  In this day and age families come in all different shapes and sizes, where one or both parents are not genetically related to a child.  There are same-sex couples, infertile couples that use donors, step-parents that never get around to formally adopting a child.  In these cases, where there is no biological second parent that is involved, wouldn’t it better serve the child to look at the situation and determine if it is in their best interests for this person to be given legal parental rights and responsibilities, rather than blanketly denying said rights after acting as a parent to this child for years, solely based upon the fact that they do not share the same DNA, or that the mother was married to someone else at the time of conception? This approach could have pitfalls and implications that I have not considered and would have to be carefully thought out before it was put into effect.  One thing seems clear though: the law regarding paternity and legal rights to children is severely outdated, and needs to be reworked to ensure it is serving the best interests of children, rather than hindering it.

Rachel S. Silberstein is a Matrimonial and Family lawyer in New York City.  To learn more, please visit her website at

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