“The presumption that a child born in wedlock is legitimate, although rebuttable, is one of the strongest known in the law.” Lewter by Epps v. Thompson, 281 S.C. 397, 315 S.E.2d 821, 823 (Ct.App. 1984). Yet, for as long as I have been practicing family law, I’ve expected the Supreme Court to eventually reduce or eliminate this presumption. In the era before DNA testing, or even blood testing, the policy rationale behind this presumption was understandable: the courts should not be turning children born within a marriage into out-of-wedlock–the traditional term would have been illegitimate–children based on the mere say-so of spouses and adulterers. Traditionally to overthrow the presumption of legitimacy required proof of impossibility of access, absolute non-access, abandonment, or something equally as conclusive. However DNA paternity testing allows us to know who a child’s biological father is with almost 100% certainty and the cost for such testing has come down so much during the past two decades (DSS has providers who will now do the test for under $200.00) that some family law attorneys propose paternity testing every newborn at birth.
With this week’s decision in Fisher v. Tucker, 388 S.C. 388, 697 S.E.2d 548 (2010), the South Carolina Supreme Court finally reconsiders the common law presumption in the era of DNA paternity testing. In Fisher, Mr. Fisher filed an action to determine paternity of a child born to Ms. Tucker, who had briefly left her husband to live with Mr. Fisher (during which time this child was born) only to later return to her husband. Mr. & Ms. Tucker fought Mr. Fisher’s claim for paternity, relying upon the common law presumption of legitimacy. DNA testing showed Mr. Tucker had 0% probability of being the child’s father (Mr. Tucker has also undergone a vasectomy) but Mr. Fisher had a 99.999% probability of being the child’s father. The Supreme Court held that the common law presumption must yield to the statutory presumption under S.C. Code Ann. § 63-17-60(A)(3) that “[a] statistical probability [from DNA paternity testing] of ninety-five percent or higher creates a rebuttable presumption of the putative father’s paternity.” Based on this, the Supreme Court affirmed the family court’s determination that Mr. Fisher was the child’s father.
In my experience, use of the common law presumption of legitimacy typically arises in two circumstances: wife in an intact marriage wants to obtain child support from her (ex-)boyfriend or, less frequently, an (ex-)boyfriend wants visitation with a child born into an intact marriage. While the common law presumption was partially based on evidentiary concerns–it made little sense to destabilize marriages when proof of paternity was based solely upon testimony over “access” and “non-access”–it was also based upon policy concerns: do we want to destabilize marriages by allowing a cheating wife’s paramours to become permanent parts of the family unit? The family court and the Supreme Court, in deciding that biology equals fatherhood, and perhaps constrained by the statutory presumption, completely glossed over this concern.
Footnote two of the Fisher opinion cryptically indicates that the common law presumption of legitimacy was only overcome because of the DNA testing, which led to the application of S.C. Code Ann. § 63-17-60(A)(3) . It may make sense in defending such paternity cases to fight any request for DNA testing in order to rely upon the common law presumption that marriage creates paternity rather than the statutory presumption that biology creates paternity.