Seeking paternity testing and joint custody

Posted Wednesday, September 15th, 2010 by Gregory Forman
Filed under Child Custody, Litigation Strategy, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, Paternity

While nothing in the law prohibits it explicitly, I’ve never understood how attorneys can counsel their male clients to demand DNA paternity testing, especially for a child born in their marriage, while seeking joint custody of that child.  I’ve never done it and I don’t see how one can escape the logical conclusion that in seeking DNA testing the father is undermining his joint custody claim.

While mothers obviously know a child is theirs (ignoring those switched-at-birth stories that seem to keep the Lifetime network in business), until there’s DNA testing a father takes paternity on faith.  Most fathers simply accept that a child is theirs and commit to parenting that child.  I have two children, ages nine and seventeen, and if my wife announced tomorrow they weren’t biologically mine they wouldn’t stop being my children.  I would fight any request for paternity testing and, even if testing showed we were not biologically related, I would still treat them as my children.

They would remain my children (in this hypothetical scenario) not because I was biologically related to them but because I had committed to raising them as my children and, after seventeen and nine years of living up to that commitment–of me loving them and of them loving me–I would not let mere (hypothetical) cuckolding change that fact.  Most fathers I know, even those fathers who’ve not had their paternity confirmed by DNA testing, feel the same way.

On the other hand, if some old girlfriend arrived a my doorstep claiming that some (now adult) child was mine, I would demand DNA testing.  Why the distinction between the children I have raised with my wife and a child I might have conceived with an old flame: because I’ve been mentally and emotionally committed to raising my children with my wife since I learned she was pregnant and have no such commitment to a child conceived with an old girlfriend.  If the DNA testing showed this old girlfriend’s child wasn’t mine, I could walk away from a relationship with that child with no guilt or second guessing.  On the other hand, I wouldn’t be seeking joint custody of that child if the DNA testing confirmed paternity.

That’s the thought process which, in my mind, makes seeking paternity testing antithetical to seeking joint custody.  One seeks paternity testing because one is willing to walk away from a child if that child isn’t biologically related–and one shouldn’t seek joint custody of a child one is willing to walk away from.  In this regard women have men at a disadvantage.  As an old Calypso song goes, “mommy’s baby; daddy’s maybe.”  But if daddy takes the position that “baby is maybe,” I don’t see how daddy can justify seeking joint custody.

9 thoughts on Seeking paternity testing and joint custody

  1. Greg, please tell me that the old girlfriend is a pure hypothetical and that you did not kiss, let alone have sex, before marriage.

    I never plead for joint custody; I plead for custody and leave joint custody and a compromise position. Joint custody is a “lesser included offense” of custody.

    I have advised clients to seek custody AND to seek a paternity test. I tell the judge that my client believes the child is his and that he is seeking the paternity test solely on my advice because of cases like Mr. G. v. Mrs. G., 320 S.C. 305, 465 S.E.2d 101 (Ct. App. 1995). I make it clear to the judge and to the mother that I am the jerk seeking the paternity test.

    I agree that mothers always know. I decided early in my career that a woman can have sex with nine men in one night, have sex with no one else during the gestation period, and pick the father 100% of the time.

    A man who shares your opinon about the bond created by raising children is Mr. Doe of Doe v. Doe, 370 S.C. 206; 634 S.E.2d 51 (Ct. App. 2006). I once talked with George W. Speedy who represented the father who found out when the child was emancipated that he was not the father. He continued to support her and treat her as his own daughter.

    1. Tom:

      Don’t you see a logical inconstancy between seeking DNA testing and custody? I presume men seek DNA testing because they don’t intend a relationship with the child if the result is negative.

      While I won’t kiss-and-tell, I do have a funny paternity story: About a decade ago, my wife and I arrived home to a phone message from Arkansas DSS inquiring whether I might be the “Gregory Forman” who fathered a child there in 1992. Since I’ve only been to Arkansas once in my life, in 1988, and only long enough to stamp my foot on ground before I turned my car around and headed back to Memphis–I collect states–I was not the “Gregory Forman” they sought. My wife and I had a good laugh about this but I assume that a lot of husbands receiving such phone messages from out-of-state DSS’s end up with angry wives.

      After that I began thinking about the youngest child I could have wandering around of whom I could be unaware. Any such child emancipated a few years ago.

    2. MJ Goodwin says:

      I agree with you again, Greg. It is inconsistent to plead for paternity testing and joint custody. I discourage my clients from doing so. If I am forced to do it (because I need the fee), I make my client sign something that says it is against my advice.

      All this being said, DHEC seems quite keen on testing. They are now requiring many hoops that folks should not have to go through in order to add the baby daddy to the birth certificate. I could go on, but I won’t. DHEC will treat all children CONCEIVED or born during the marriage as the child of the marriage. I have learned this in the past few days. Very frustrating for the pregnantly divorced and the baby daddy.

      There used to be some law that said you have to plead joint custody to get joint custody. But I haven’t researched that lately. Just saying.

      Hope that old flame doesn’t show up and claim you are the baby daddy.

  2. mlramsdale says:

    Greg: I think the paternity testing is better plead IF you have any doubt that the child is NOT yours- because then it is established that your wife misbehaved. I thing you can plead it on those grounds- caveat the pleading appropriately. I saw some research that says 10 percent of children born in a marriage are NOT the child of the husband.

    […] The UN Convention on the Rights of the Child, the most ratified human rights convention known to our world, specifically addresses the issue of child identity rights. It provides for the proper registration of both biological parents at the time of birth in support of the child’s identity rights and the child’s right to a relationship with both biological parents. See Articles 7, 8 and 9 of the UNCRC at . […]
    You ought to listen to the phone calls we get from adult victims of paternity fraud. They are severely damaged when they find out that the man they thought was their father for their lifetime isn’t their biological father. Consider how a mother would feel if she found out that the baby they gave her at the hospital when she left after giving birth with a baby other than hers and the nurses knew or should have known that it wasn’t hers.

  4. Teen Sues Mother for ID of Father
    By Tresa Baldas, The National Law Journal, U.S.A., August 11, 2006
    […] a Michigan teenager is suing his mother to learn the identity of his father. […] Minor J. v. John Doe, No. 06-2342 DP (Macomb Co., Mich., Cir. Ct.). […] 1973 Supreme Court ruling, Gomez v. Torres, 409 U.S. 5353, in which the court held that an illegitimate child has a legal right to sue his father for support because he’s entitled to equal protection under the law.

  5. Great blog! Thanks for sharing!

  6. lala martinez says:

    How can an adult get a DNA from his. So.called dad? Can that happen? I really would like know this if anyone. Can help me or.give me an advice.

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