In era of DNA paternity testing, Supreme Court finally (and greatly) weakens presumption of in-wedlock paternity

“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.

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  • Greg, you might want to compare with Neely v. Thomasson, 365 S.C. 345, 618 S.E.2d 884 (2005), which was my wife Lucy’s case. I am surprised that the Fisher opinion makes no mention of Neely.

  • Lilly Collette

    I appreciate your view and opinion: do we want to destabilize marriages by allowing a cheating wife’s paramours to become permanent parts of the family unit?

    My question is, wouldn’t the paternity evidence (DNA) demonstrate that the wife had already ‘inducted’ her paramour into the family unit?

    If ‘la fem’ is concerned about protecting the ‘family unit’, there is always the proper option of a fertilization contract in which the husband (Baron) would have the right to informed consent.

    There are at the very least issues of inheritance where the husband should be consulted (all personal emotions aside).

  • Greg,
    I have persons in my office somewhat frequently wanting the DNA Paternity test results we perform to then alter the child support arrangements, sometimes with all parties consenting. However the pre-DNA SC law of marriage equals paternity, has prevented any attorney from taking on the challenge in Family Court. Have we reached a point where I can refer the clients to an attorney willing to engage?

    • I believe that the Fisher case stands for the proposition that, for paternity, DNA trumps marriage. However, for cases in which paternity has already been established via a final court order, it is much harder to alter a determination of paternity, even if DNA testing shows the legal father is not the biological father. The case I look to in these circumstances is Mr. T. v. Ms. T.

  • You state ” 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.”

    My question is, how was Mr. Fisher able to establish a DNA test if the TUCKER’s relied on the presumption law? I would assume the TUCKER’s would refuse DNA test.
    I’m in same situation, filed paternity suit to a married women and the couple responded with husband is father by marriage. They both refusing DNA testing and the father holding baby as his own. Wondering how I can get DNA test even though they refuse, like Mr.Fisher did in this case?

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