Academic journal article Texas Journal of Women, Gender, and the Law

Why Truth Is Not a Defense in Paternity Actions

Academic journal article Texas Journal of Women, Gender, and the Law

Why Truth Is Not a Defense in Paternity Actions

Article excerpt


We are all bastards,

And the most venerable man which I

Did call my father, was I know not where

When I was stamp'd.

- WILLIAM SHAKESPEARE, CYMBELINE, act 2, sc. 5. I. Introduction

Legal presumptions substitute for facts that cannot be definitively proved or disproved. Presumptions that once provided efficient and effective resolutions of complex social issues, over time, may become facile substitutes for the truth. How should the law respond when advances in scientific knowledge establish that what was presumed to be true is scientifically false?

A contemporary example of this dilemma arises in the paternity context. In the absence of scientific proof to the contrary, courts dating back to the Middle Ages have employed presumptions to limit or bar the introduction of evidence to ascribe paternity. Current developments in genetic testing, however, can prove or disprove paternity and, thereby, call into question the validity of such presumptions. Consequently, courts must decide whether to preserve presumptions of paternity and legitimacy that protect children from bastardy or to yield to scientific advances that, over time, may leave us with more questions than answers.

The presumption of legitimacy holds that a child born during a marriage is the legal issue of both spouses.' This presumption was a fundamental principle of English common law that could be rebutted only by proof of the husband's impotence, sterility, or non-access to the wife.' According to Blackstone, non-access could be proven only "if the husband be out of the Kingdom of England or beyond the four seas for above nine months."' Additionally, Lord Mansfield's exclusionary rule of 1777 held that under the law of England, "the declarations of a father or mother, [could] not be admitted to bastardize the issue born after marriage."4

The social benefits served by this presumption were manifold. First and foremost, the presumption protected the legitimacy of children, which in turn entitled them to the financial support, inheritance rights, and filiation obligations of their parents.5 It prevented children from becoming wards of the state so that neither king, nor church, or taxpayer was forced to provide for them.6 It prevented a third-party putative father from insinuating himself onto an intact family by claiming to have sired one of the family's children.7 It helped to maintain the stability of the family at a time when divorce was rare and spouses stayed married notwithstanding other social relationships. The presumption also served the judicial system by allowing courts to cut off debates between irate parents about the biological origins of their children at a time when doubts about a child's genetic origins were more a matter of suspicion than science.

The presumption of legitimacy, like other legal presumptions, provides a consistent and explicit rule of law that enables courts to operate efficiently and private persons to order their private affairs with a clear understanding of the legal consequences of such undertakings. When a presumption is irrebuttable, no factual inquiry challenging the truth of the presumed fact may be entertained by the court. When a presumption is rebuttable, some factual debate as to the truth of the assumed fact is allowed. In the case of the presumption of legitimacy, the factual inquiry is limited to a few exceptions that are difficult to prove. Failure to provide such proof means that the presumption stands.

Presumptions, as legal reality principles, have their costs. For example, one thing that most people know for certain is that no one can know anything for certain. At best, one can make reasoned guesses, some of which may be right and some of which may be wrong. Presumptions, however, defy the truth of the proposition that nothing can be known for certain, for even if there is an abundance of evidence to dispute the presumed fact, the presumption bars the court from hearing such evidence. …

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