What’s a father?

Posted Wednesday, November 25th, 2009 by Gregory Forman
Filed under Child Custody, Child Support, Jurisprudence, Law and Culture, Not South Carolina Specific, Of Interest to General Public, Paternity, Visitation

A lecture/article topic idea I have often considered but never been able to completely get a fixed idea on is the notion of “What’s a father?” The lead article in last Sunday’s New York Times magazine section, Who Knew I Was Not the Father?, highlights the confusion and resulting injustices.  When women falsely lead men to believe they are biologically related to a child and then require them to continue to pay child support when the truth is discovered it seems very unjust.  However it is also unjust when men who have raised a child they know they are not biologically related to attempt to disclaim responsibility when it suits their purposes.  Hidden within the article is a possible solution to these injustices that I had never considered: perhaps the notion of which male is to financially support a child should be distinct from the notion of which male should have the right to the nurturing role of “father.”

There are a couple of reasons the concept of father is confusing.  The first is that (except for the rare tabloid-ready cases of babies-switched-at-birth) mothers are pretty certain of the maternity of children they bear.  In contrast, paternity is often uncertain and, until DNA testing for paternity became available approximately twenty years ago, was incapable of certainty.  Thus, a lot of “fathers” (which I will define as a male raising a child as his own child) raise children where their paternity is uncertain while almost no “mothers” (which I will define as a female raising a child as her own child) raise children where the maternity is uncertain.  The second reason that the concept of father is so uncertain is that “fathers” will often raise children where they doubt or know the child is not biologically theirs while few “mothers” do the same (I am not referring to step-parents because while they may help raise their spouse’s child, they know the child is not biologically related and do not consider the child their actual child).

South Carolina’s appellate courts have waded into this issue once, in the case of Middleton v. Johnson, 369 S.C. 585, 633 S.E.2d 162 (Ct. App. 2006).  In this case Mr. Middleton sought visitation with a child who was not biologically his, but which the mother had encouraged him to have a parent-like relationship with.   In South Carolina, even step-parents are not entitled to court ordered visitation absent a finding that they are the psychological parent of the child.  Dodge v. Dodge, 332 S.C. 401, 415 505 S.E.2d 344, 351 (Ct. App. 1998). Accordingly, the family court refused to grant father, an unrelated third-party, visitation with the child.  The Court of Appeals reversed.  Adopting a four part test created by the Wisconsin Supreme Court, the court held that a family court could award visitation to a “psychological parent” which the court defined as a situation in which:

(1) that the biological or adoptive parent[s] consented to, and fostered, the petitioner’s formation and establishment of a parent-like relationship with the child; (2) that the petitioner and the child lived together in the same household; (3) that the petitioner assumed obligations of parenthood by taking significant responsibility for the child’s care, education and development, including contributing towards the child’s support, without expectation of financial compensation; [and] (4) that the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship  parental in nature.

Because Mr. Middleton met the test of being the child’s “psychological parent,” the Court of Appeals ordered that he was entitled to visitation.  In 2009, Mr. Middleton was actually granted full custody of his non-biological child:  Helping set legal precedent, man gains custody of boy he helped raise.

As the New York Times article notes, the law is, as of yet, uncertain of how to deal with situations in which a “father” assumes the role over a child who is not biologically his and then either discovers the truth about paternity or simply decides he no longer wishes to be responsible for a child he is not biologically related to.  It seems unfair for “fathers” to abandon their child simply because there is not a biological connection; however it is also unfair for the law to make men who have falsely been led by the mother to believe that a child is theirs to continue to pay child support to that mother when the truth is discovered.  The article suggests but does not describe a solution: separate the duty of support from the right of a father-child relationship.  I would propose the following as an elegant way of resolving these issues whenever a “father” who has raised the child is not the child’s biological father:

1) Any time a non-biological father and the mother of the child expressly and in writing acknowledge that he is the “father” of the child despite understanding that he is not biologically related to the child, these parties shall be bound by the agreement and the “father” shall have the duty of support and the right of a parent-child relationship.  Further any such agreement shall be binding on the biological father is he is a signatory to such an agreement.

2) Any time a non-biological father is led by the mother to treat the child as his own child but there is no such express written agreement, the “father” shall have the right of a parent-child relationship but shall not have a duty of support once he discovers the truth of the child’s paternity.

Such a resolution would resolve the current injustices.  Mothers who falsely lead men to believe they are the biological fathers of their child might lead themselves into situations in which those men gain the right to a relationship with that child without the (currently) conjoined duty of support.  However, mothers who are upfront about the “father’s” lack of paternity of the child that man is helping to raise, and get such an agreement in writing, would be protected from that “father” later trying to disclaim paternity and be relieved of the financial obligation to support the child.

4 thoughts on What’s a father?

  1. Tom Doyle says:

    What if the mother doesn’t know that the father isn’t the bio-father? Is the woman obligated to share that possibility?

  2. Shannon Jones, Esq. says:

    I have a facinating set of facts in a case I’m currently handling that brings up this very issue in several ways. Two children born during the marriage, one of which is emancipated (I’ll come back to that one in a minute). Second child was born during an extramarital affair and my client knew she wasn’t his biological child. He took mom back after the affair and was the only “father” there for the child’s birth. He allowed his name to placed on the birth certificate. Fast forward 11 years and now wife wants a divorce. The issue of child support is further complicated by the fact that the child is severely disabled and will always require financial support. Would you still hold him to his “agreement” to support by virtue of the birth certificate knowing the duty in this case will go beyond emancipation?

    Now back to the first child. She is emancipated, but Mother has recently alleged that she was also the product of an affair. Should my client ask for reimbursement of prior financial support? If the Mother’s assertion is true, she is guilty of marital fault that has not been condoned which should bar alimony. I am currently wrestling with how to handle that issue – obviously I’d rather not make this grown “child” a party to the action to perform the necessary testing, but I a lot of money is on the line.

    Further thoughts, comments??

  3. Unless my male clients are completely resistant to it, I recommend paternity testing as early as possible. The women complain bitterly, but it puts doubt to rest. Otherwise later the woman may claim my client isn’t the father, destroying his confidence in paternity.

    I have had several cases where fathers chose to ignore paternity test results and accept the children as their own, often when they had several children and ended up with a mixed bag of children, some theirs, some those of other people.

  4. Sonia says:

    Is the name known of the representing attorney for Kenneth Middleton?

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