Lecture 13- Paternity "Fraud" Flashcards
What did the situation used to be like in regards to paternity?
- There was only one way of making babies
- Mothers always knew if a child was “theirs”
- Fathers did not know, but wanted to
- A range of social, economic and legal practices arose to manage “paternity uncertainty” so that men would provide a name and support for children
- Among these was the legal doctrine of “presumptive paternity”
What is the legal doctorine of presumptive paternity?
- The father is the man married to the mother unless it can be proved he was impotent, sterile or lacked access to his wife for the 9 months preceding the birth
- Social not biological relationships determinative but only by necessity
- Prizing of female virginity (blood-stained sheets; chastity belts), fallen women/”sluts”, “bastards”
- legal doctorine of presumptive paternity: legal and social father is the man who is married to the mother unless it could be proven he was sterile, impotent or lacked access to the wife
- this is a social construct, but underlying that was the best that could be done to ensure who the father was
- other social aspects connected to this is the prizing of female virginity, sexuality and reproduction
What were the changes in society that affected how paternity is determined?
- Feminism & the sexual revolution
- Divorce
- Pre-marital sex (end of “you play you pay)
- Ex-nuptial birth
- DNA paternity test -Reliability: 99.9% accurate determination of paternity if done properly by a reputable agency
- New test determines fetal paternity at 8 weeks gestation without miscarriage risk
- around 1950s big change comes along
- shotgun marriage= marrying because of pregnancy
- lot of children abandoned by parents
- more single-parents households
- now almost 100% certainty for men if they are the father
What is the social outlook on paternity today?
- How have changes in social attitudes, economic realities and technology come into conflict with the law?
- How has the law responded?
- Whose interests do current laws protect? Whose do they ignore? Whose do they harm?
- How should we answer the question “who is the parent” if our primary goal was to protect kids?
What were the facts of the Magill v Magill case?
- married when young, had 3 children
- Meredith became psychologically ill
- eventually marriage failed, decided to split, Liam assigned child support obligations which began to pay -suspicions arose if he was the biological child of Bonnie, Liam decides to test and discovers Bonnie and Heath are not his biological children (the father is Derren Brown, Meredith’s lover)
- Liam extremely distressed, cuts of all ties with all the children (who were 10 year old approx.) and talked to the papers about it, now in public domain, he submitted document to the family agency and didn’t have to pay for the two children who were not his
- took Meredith to court because he wanted a refund for the child support he paid for the children who were not his in the past
- he got a refund but was still not happy, he wanted compensation for the suffering and pain he experienced by learning these children were not his, in 2002 he was granted 70 000 dollars under the tort of deceit, then taken to victorian court of appeals which overturned this judgement= said couldn’t use tort of deceit for marital infidelity, then taken to the High Court that affirmed the Court of Appeals decision
- during this lengthy legal battle, Meredith and the children remained silent, now that the children are grown there is some feedback: they felt exposed, ashamed and embarrassed, humiliated and hurt
- he cut off contact even with his biological child
- never spoke to the kids again
- the younger two had formed a relationship with Deren Brown and refuse to talk about Liam
How has the legal landscape shifted in recent decades?
- Presumptivefatherhood – social father was biological father – done to protect father and child
- Social change: Increasing number of single and divorced women living in poverty with children
- Biology=fatherhood – By and large in Australia and UK – In US, where no social father exists, but inconsistently if there is a social father
- Magill case shifted the landscape -Child Support Agency: important here and in the UK, when DNA test came into the being Australia and the UK changed the way fatherhood is assigned
- now presume who is the father, but it is a rebuttable assumption, and can get a refund on the investment in the children
- in the US: different approach, case by case, string of court decisions where the father is decided depending upon which “father” can help the child the most, if the child has no social father the father is the biological, if the man is the social father and can prove he is not the biological father unless the biological father is identified the social father remains the legal father
What are the two types of paternity fraud?
- Paternity fraud or discrepant paternity?
- Two types of discrepant paternity – presumptive – USA – cuckold
- presumptive paternity fraud (not in Aus/UK): they can give child payment obligations to a man who can disprove that he is the biological father, here cannot happens, as long as you prove you are not the biological father you no longer have to pay
- in Australia the cases that upset men are like Magill, they no longer have to pay child support but they are not given compensation for their suffering
- paternity fraud= this is a subdivision of what is called discrepant paternity, when look at empirical data, there are cases where men are parenting children that are not biologically theirs but it is not paternity fraud (stepfathers, adoption, IVF)
What are the types of claims made by men’s rights movement about paternity fraud?
- Normative: moral claims
- Empirical: what is and isn’t
What are the normative claims made by men’s rights movement?
• PF defrauds/ cheats men and/or children by
– Creating a relationship between a man and non- biological child
– Compelling non-biological fathers to pay child support, denying them adequate resources needed to start another (“real”) family with a faithful women
– Denying biological father knowledge/relationship with progeny
– Denying children “truth” about their biological origins and chance to pursue relationship with biological (“real”) father
What do the men’s rights movements want?
• “DNA testing should be a compulsory procedure at the birth of every child born to ensure that the correct father is registered. Paternity must be determined via DNA testing at birth because any man can be deceived into believing they are the father.”
- Men’s Confraternity (2006)
• (If woman deceives man in this way, he is justified in demanding cessation/refund child support and/or severance relationship with child)
- Men’s rights movement is pushing for this to be a legal requirement at birth of every child:
- they see it as that a “real” child can only be a biological child, the relationship with a non biological child is never right and is never a father-child relationship
- this creates issues for IVF, adoption and same sex couples
What are some of the consequential normative claims?
- Faithless woman is causative agent off “fraud”
- This justifies man’s attempt to avoid assigned support liabilities and to seek refunds for past amounts paid for non-bio child that he parented
– By compelling non-biological fathers to pay child support, denying them adequate resources needed to start another (“real”) family with a faithful women
– Denying biological father knowledge/relationship with progeny
– Denying children “truth” about their biological origins and chance to pursue relationship with biological (“real”) father
What are the causes of discrepant paternity?
- Evidence scarce
- Turney “Paternity Secrets” (2005)
– Swinging and non-traditional sexual relationships
– Marital separation/re-unification
– Short intervals between/overlapping sexual relationships
• Infidelity only one of numerous causes
- the cause of paternity fraud: varied causes , marital infidelity accounts for only part
- the women also don’t know if the child is biologically the husband’s
- usually fine as long as marriage is fine, the problem is when it breaks down
What are the motivations for testing?
- Accidental discovery by unrelated genetic testing
- Mothers test to deny access of social father to child (initial worry when DNA testing appeared)
- Mothers choose or state coerces them to test to identify or enforce paternal support obligations (3rd of Oz tests)
- Men or proxy test to reduce or eliminate fiscal obligations for children of past relationship (2/3rds of Oz tests)
-worry that the DNA test will be used to prevent relationship with social father
What are the empirical claims made by men’s rights movement?
• Incidence – 10-30% of men are parenting children who are not “really theirs”
– Implication: “rampant”, a systemic problem in need of systemic address
• Motivation for testing
– Truth-seeking men test to expose unfaithful, deceitful and resistant mothers
– “Motherless” testing
What is the real incidence of paternity fraud?
- Gilding: 10-30% rates “urban myth”
- He estimates 1% (Australia/UK) to 3% (USA)
- Could be too high given sample methods which ignore paternal knowledge/consent (donor insemination, adoption, consensual non-monogamous practices)
- King & Jobling (2009) - 1 to 4% which may be overestimates
-“Several studies of surnames and Y-haplotypes have used the diversity present within surnames to make inferences about the past rates of non- paternity…there is agreement that rates are
