Sunday, May 25, 2008

DNA and the Law

DNA paternity

Imagine going on Maury during one of his DNA test episodes as a guest. Say you receive the results and it shows conclusively that you are the biological father and you really want to be in the child's life.

Then imagine finding out that you could not press your paternity claim even with conclusive evidence because the child's mother was married to someone else when the child was born. In this alternate universe, "I Do" matters more than DNA. This crazy world is ours.

This is the situation facing James Rhoades. A university libarian who began an affair with married woman only to conceive a child that he could not claim because the law was on the side of marriage and not DNA.

Excerpt the Times article:

The 4-3 decision splintered the court, which issued five separate opinions. The majority was itself divided evenly among two camps, one that said Rhoades might have prevailed had he been able to show the J.N.R.'s "marital relationship had ceased at least 10 months" prior to the boy's birth, and another that said no "stranger to the marriage" can ever attack the legitimacy of a child's birth. "As long as marriage is on the books, it must mean something," wrote Justice Bill Cunningham in one of two concurring opinions. "... We are in need of a bold declaration that the marriage circle, even one with an errant partner, will be invaded at one's own legal risk." He added: "While the legal status of marriage in this early 21st century appears to be on life support, it is not dead."

Marriage is in on life support and with the recent California ruling, it is also being redefined. But despite the redefinition some parts of marriage law are stuck in what may almost be archaic standards and preservations of the law that don't account for changes in science like DNA tests.

Another excerpt:

Kentucky's ruling is firmly grounded in the history of the law, however. In fact, the so-called marital presumption has barred attacks on the legitimacy of children for centuries. Courts have forever held that allegations of fatherhood by third parties can only disrupt the family, confuse or embarrass the child, and unsettle the social order.

Interesting how this has preserved the "legitimacy of children for centuries." We live in such a time and society when it is not unusual to have a live-in partner and to have children with that partner, so what is really the difference besides the paper? We are so accustomed to thinking that blood is thicker than water but then we switch to love being more powerful than blood. Add the fact that marriage is still a strong institution in America (no matter how many times celebrities divorce). These tripolar notions of love, blood and the sanctity of marriage are tiring me out.

Unfortunately for Rhoades, he may not get what he wants. He plans to go to Supreme Court but the odds are long since they've already ruled once on this:

In 1989, on the same issue, upholding California's explicit bar against paternity challenges like his. That decision too was divided and contentious. The biological father in that case did not get to see his daughter till she had turned 21.

It is one of those times where the law of nature as Rhoades explains isn't exactly the law of the land. This situation doesn't happen to a lot of people (I'm assuming) but it is definitely something to think about it terms of how the law sometimes conflicts with what we observe in nature.


1 comment:

Anonymous said...

Steven...the guy has more than just DNA evidence, for he has built a website loaded with all types of evidence. I'm not sure why the husband would ever want to stay with the woman after viewing the stuff on the website. Seems Rhoades is fighting back. I hope he's successful in seeing his son.

Here's the site: