June 16, 2002
BILL QUICK REPORTS on a growing movement to protect “fathers” from paying child support for children who aren’t actually theirs. “But the children need somone to support them,” is the response, “and if these unlucky guys don’t do it, who will?”
This reminds me of Judith Jarvis Thomson’s unconscious-violinist example. And we all know where that leads. So why is it different when it’s men?
Sean Roper says:
Hey Glenn, I have been a fan for about 6 months now. You have a great site here and I love it. As for having to pay for support for children that aren’t mine, all I can say is that it would make me crazy. I can’t believe a judge would force a man to keep paying even after DNA proves that he isn’t the father, but I know it has happened.
June 16, 2002, 8:51 pmKen Summers says:
Hi Glenn, I swear comments weren’t enabled when I wrote that rather lengthy email. You just turn’em on?
June 16, 2002, 9:10 pmDaniel Wiener says:
I have a friend who is heavily into the “Fathers’ Rights” movement (due to personal experiences). For me it’s an abstraction, since I’ve never been faced with that problem and my daughter is now an adult, but for him and millions of other men it’s the defining issue. Since I’m on my friend’s email list, and regularly receive rants and links from him, I’ll act as his proxy and note here the following web site:
http://www.geocities.com/rights_4_dads/links.htm
June 16, 2002, 9:21 pmRWM says:
This situation actually arises more than a person would think. I work in a county office that, until 2002, collected and disbursed child support payments. In short, there usually weren’t more or less hard feelings, at least on the topic of making the payments, than the norm. I would take a shot at saying this type of case probably represented 5-10 out of about 100 cases in a county of about 8,000 people.
The usual scenario seems to be: Man meets woman, man falls for woman, man accepts responsibility with woman for raising the children. Parties divorce, woman petitions for and receives child support.
Some seem to accept the fact that they consciously chose responsibilty with the woman to raise the children, and wish to carry on the responsibility by way of monthly childs support payments and visitation rights. And visitation rights of a financially supportive but non-biological parent? A wee bit sticky, generally speaking. Now THAT would make a hell of a news story.
June 16, 2002, 9:40 pmrea says:
I wonder what your take is on the unconscious violinist hypotheitical? Back when dinosaurs roamed the earth and I was in law school, one of my professors (Yale Kamisar) posed a similar hypothetical to his classes–what if you are a strong swimmer, and one day while walking by the lake see someone drowning? You could save him very easily–but the common law rule is, you have no duty to do so. He saw this as demonstrating that pregnant mothers have no duty to bear fetuses to term, even if we concede that the fetus is a “person”.
As far as whether “fathers” should be required to pay child support for children not really biologically theirs, this represents an example of the state drawing a bright-line rule for policy reasons (simplicity, protection of the institution of marriage)–children born during the marriage are to be treated as children of the marriage. If this seems harsh, consider a couple of examples from my cases: (1) child is born during marriage; husband knows the child isn’t biologically his–but loves the child anyway, and bonds with her. After a bitter divorce, mother wants to take away his visitation rights–but the law won’t permit her to do so–that’s his child, and biology has nothing to do with the matter. (2) Child wants to claim inheritance from his biological father–but the probate court concludes that he has no claim, because he was born during his mother’s marriage to another man, who is conclusively his father. I don’t know how these things come our morally–I don’t think anyone does, really–but I know that it’s sure easier to have a rule and follow it every time.
June 16, 2002, 10:56 pmJack William Bell says:
I always figured it would be OK to force a man to pay support for a child that wasn’t his if the law also made allowance for the man to sue the *real* father. In fact you should be able to sue for penalty damages *greater* than the cost of paying child support. (Including all court costs.) Case to be dropped if the real father agrees to pay child suport and relieve the man of all obligation…
Of course this doesn’t deal with the woman’s role in breaking the marriage contract, et al.
June 16, 2002, 10:58 pmharmon says:
This situation is a little more complicated than it might appear. Historically, there have been certain legal presumptions – sometimes irrebuttable – regarding who the father of a child is. One of them, for instance, was that the legal father of a child was the husband of the mother.
Such presumptions were based on a general support – societal, legal, and religious – of marriage. That support seems to be in the process of dissolving, or being significantly altered, but in the meantime, it looks to me like a lot of the previous presumptions continue to be understood generally and applied to the quasi-marital arrangements we are left with in the place of marriage.
So the unconscious-violinist example does not apply – historically, the father, occupying the position of the bedmate of the u-v, was a volunteer. That history is still with us. Even now, given that history, men are never in the position of the bedmate of the unconscious violinist – they are all, literally and figuratively, climbing into bed of their own volition, and taking the risks associated with that.
Frankly, this is fine with me. If we don’t hold the line on the matter of containing the primary responsibility for raising children with individuals, we will wind up with government becoming more and more responsible for the raising of ALL children. I don’t think it’s a wise idea for the goverment to take over the raising of our children – enough, if not too much, of that is already going on. If that means that from time to time, some guy turns out to be the legal father when he’s not the actual biological father, so be it – when you go to bed with a woman, you are playing Russian roulette, and I don’t see where it is the responsibility of those of us who didn’t play to get the bullet.
June 16, 2002, 11:18 pmGlenn Reynolds says:
Harmon: Well, you say it’s Russian roulette — but it’s only so because you choose to make it so. What’s interesting to me is that when the subject is paternity, I hear a lot of feminists take this line — though they would view it as patriarchy of the worst kind to say the same thing about women where abortion is concerned.
I, of course, am pro-choice on abortion. I just not the contradiction.
June 16, 2002, 11:36 pmMartin Albright says:
Glenn,
I’m only a law student (going into my 3rd year, working at the school’s Legal Services clinic for the Summer) but I see this situation as being akin to joint and several liability.
In a typical case, there are three people involved (besides the mother): Bio-Dad, the Purported-dad (who has somehow acknowledged or admitted paternity but subsequent tests show he isn’t the real dad) and the child. Now, once purported-dad has signed the paternity documents, birth certificate, or whatever, and then discovers that he is not the dad, it seems like you have two people who are not “innocent” in that they had sex with Mom and COULD have been the dad, and one person, the child, who is WHOLLY innocent. So, just like joint/Several liability, upon whom do we place the burden?
If purported-dad is allowed to stop paying child support, it’s the CHILD that suffers, and after all, purported dad is in that situation by his own choice, as opposed to the child who is not. If we allow purported-dad to escape responsibility simply because it wasn’t his sperm that fertilized the egg (even though he signed the legally significant documents that made him responsible), then what do we tell the kid? “Sorry you have to live in abject poverty, but we can’t find Bio Dad, so you’re out of luck”?
I would fully support laws that would allow, in this situation, for purported-dad to track down bio-dad and make him compensate purported-dad for the support given, and even to put bio-dad on the hook for support, once he’s been found and assuming he is capable of providing support. I would even support laws that would require Mom to cooperate in finding bio-dad.
But, as with joint and several liability, if the choice is to allocate the damage between an innocent party and a liable party (or even a potentially liable party who as admitted liability), then I say it’s proper for the liable party to bear the cost rather than the wholly innocent party.
As the director of our clinic said, regarding a similar situation, “You rode the ride, you didn’t win the prize, but you still have to pay the fare”
Martin
June 16, 2002, 11:41 pmGlenn Reynolds says:
Well, if you believe that by having sex someone should be punished, I suppose that makes some sense. Though it seems awfully close to prostitution, doesn’t it?
June 17, 2002, 12:19 amMichelle Dulak says:
To rea: I see the advantage of a “bright-line” rule, sure, but there must be a better bright line than “any child born to a man’s wife is his responsibility.” I wonder if the best approach wouldn’t be to make paternity tests mandatory on divorce and then, if the husband is *not* the biological father, give him the choice whether to “acknowledge” the children or not — so that he would have both child support responsibilities and visitation rights if he did, neither if he didn’t.
June 17, 2002, 12:51 amharmon says:
>What’s interesting to me is that when the subject is
>paternity, I hear a lot of feminists take this line –
Yes, it is interesting. It’s one of the places that a traditionalist moral view actually overlaps rather than collides with feminism. Porn is another one of those areas.
>though they would view it as patriarchy of the worst >kind to say the same thing about women where
>abortion is concerned.
Well, to a feminist, all patriarchy is of the worst kind, and anything a feminist disagrees with is found to be based on patriarchy, or so it seems to me. For my part, as someone generally opposed to abortion-at-will, it seems to me that the only father with a say-so about abortion is the father married to the mother.
Bottom line for me in this area is simple – if you are married to the woman, you have responsibilities and rights. If you are not married to the woman, you have responsibilities and no rights. This position is traditionalist, pragmatic, fair insofar as it is made explicit, and by merest chance, feminist.
I don’t think the contradiction you believe you see exists, except at the superficial level that anything traditional must ipso facto be non-feminist.
June 17, 2002, 1:01 amMartin Albright says:
I guess if the purpose of child support was to punish, but the purpose of child support is to support the child, not to punish the dad.
Just as tort damages are intended to restore the victim to the condition he was in before the injury (except for punitive or expemplary damages, which doesn’t apply here) child support is designed to restore the “victim” (the child) to the situation he would have been in had “dad” stayed with mom and provided support. Again, I ask, should the innocent child be made to “pay” the cost of child support (in the form of living without the support) or should the person who enjoyed the benefits and advantages of fatherhood, however briefly, be made to pay?
In situations where the purported father has signed some legal document where he assumed the duty of paying child support, should that duty go unenforced simply because he never had to assume it in the first place?
There is a difference between imposing a duty on someone involuntarily and holding someone to a duty they’ve voluntarily assumed. I would not favor forcing child support payments on someone who could have been the dad but never assumed or admitted paternity, but most of these cases involve purported-dads who signed the birth certificate, agreed to a legal judgement of paternity, or otherwise held the child out to be their own. So the issue is not “should they have assumed the duty?” it is “Once they assumed the duty, should they be allowed to escape that duty once they discover they are not the biological father?”
Martin
June 17, 2002, 1:02 amMichelle Dulak says:
Martin: The joint-and-several liability analogy seems to me a good one — up to a point. You touch on a weak point when you say (of the Bio-father) “assuming he is capable of providing support.” Well, what if he isn’t? Suppose a woman married to a rich man has a child by a dirt-poor lover. Is the offspring entitled to the husband’s deep pockets? What about a child actually fathered by the rich man on a woman married to the dirt-poor one? Is the child entitled to support from whichever parent (formal or actual) has the greater resources?
I think in the large majority of cases where the husband is not the biological father, the mother knows perfectly well who the real father is, or at least who the possibilities are. I can’t imagine why she should not be required to disclose this information once the husband has been proven not to be the father, and prior to any award of child support.
Re: Judith Jarvis Thomson’s analogy, by the way: it amazes me that people don’t dismiss the thing out of hand simply because of the way it stacks the deck. Consider: the violinist is male, adult, famous (and probably rich), certainly influential, since he has a cabal of people on his side capable of kidnapping someone and holding him/her captive for nine months. Let’s just say that the whole rhetorical swing of the article would be marred if the subject were a four-year-old refugee girl from Somalia. Not so easy to pull the plug there, is it?
June 17, 2002, 1:23 amMichelle Dulak says:
Martin: I suppose the test I would put any system to on this matter is this one: Suppose A has husband B, but adulterous affair with C, which results in a child. A divorces B and marries C. Does B owe child support? It seems ridiculous that he should.
June 17, 2002, 1:33 amJonathan Gewirtz says:
Landowners should be compensated by the community when their land is taken via eminent domain “for the good of the community.” It is unfair in such cases to force landowners to bear the costs, and removing from governments the obligation to pay these costs creates perverse incentives for government officials to take private property. Similarly, forcing non-fathers to bear the costs of other mens’ offspring is unfair and creates perverse incentives for unscrupulous mothers. The “for the good of the community” argument, which was reasonably used to justify obligating men when paternity was difficult to ascertain, makes little sense in this day and age of reliable DNA tests. At the very least, a guy who had a one-night stand with the mother, and who can be proved not to be the father, ought not to be liable for child support.
June 17, 2002, 7:43 amKen Summers says:
Martin, about “assuming” responsibility: Suppose someone tells me that my child was playing with his child at his house and started a fire. I start to make reparations. Later I find out it wasn’t true. Do I need to continue paying because I once assumed responsibility?
Michelle, the violinist analogy breaks down in much worse ways (to my non-lawyer mind): First, the donor had no prior obligation to the violinist, but a parent has an obligation to a child. The parent took a choice in risking pregnance (absent rape). So it breaks down. Now assuming for whatever reason the analogy holds in the case of abortion and the mother is not obligated to carry to term. Applying the same reasoning, the non-biological father is not responsible, but neither is the biological father (hey, I don’t gotta donate no kidney, I don’ even gotta give him no money). Glenn, you can tell me if this reasoning holds, but I’m not seeing it break down.
June 17, 2002, 9:22 amGlenn Reynolds says:
Well, whether you believe the violinist example holds or not, it seems to me that the case for sticking a non-father with paternity is weaker under this arrangement than the case for sticking a woman with pregnancy.
It also seems to me that as fraud generally vitiates contracts, so here fraudulent claims of paternity should vitiate an agreement to support.
June 17, 2002, 10:14 amJoe says:
How often is a victim of fraud forced to pay for the long-term results of said fraud without the prospect of restitution? You should look at the fraud statutes for guidance here, because that is what the married guy is the victim of. He is being either outright lied to or having information withheld from him when making his decision to accept the child as his. I think that when entering into a contract failure to disclose all relevant information by one party will result in the contract being declared null. Why should the victim be obliged to pay the perpetrator?
June 17, 2002, 10:14 amPete Harrigan says:
I remember when I was a kid my Dad sat me down and said, “Son, don’t go foolin’ around with some floozy. You might end up with a violinist attached to your kidney.”
OK, I admit that didn’t actually happen. On the other hand, I have known that sex could lead to pregnancy since I was about nine. So the whole unconcious violinist example is a crock. Who the hell doesn’t know the risks of sex, all the way from pregnancy to venereal disease?
June 17, 2002, 10:42 amCraig D. says:
Problem is, courts have upheld paternity even when the sexual act in question (oral sex w/ a condom’ the sperm was later used to impregnate the woman] could in no reasonable way have been foreseen to have pregnancy as a consequence.
The notion often seems to be “someone has to pay for it, and you should know better than to sleep around, Mister, so its gonna be you”.
Really, treating false or misleading claims of paternity as fraud seems about right to me, just as it would be equally fraudulent for a father to hide assets at a hearing to set child support levels.
June 17, 2002, 11:06 amrea says:
The professor says:
“as fraud generally vitiates contracts, so here fraudulent claims of paternity should vitiate an agreement to support”
But the hole in that argument is that fraud only vitiates contracts as between the parties to the contracts. Innocent third parties who rely on the contract retain their rights–e. g. the subsequent pruchaser for value without notice doesn’t lsoe his house simply because the person from whom he bought it committed a fraud.
There are 3 parties to these child support agreements, and the most important–the child–is innocent of any wrongdoing. In one of my case, the father of a 16-year-old tried to challenge paternity to get out of paying support. Paternity is more than just a matter of keeping track of where your sperm went–it’s a relationship that doesn’t necessarily turn on biology.
June 17, 2002, 11:18 amDavid says:
So many things to comment on.
First, the “unconscious violinist”: It only applies to rape. ONLY to rape. That’s it. Then, maybe (kind of – as someone said, she stacks the deck rather ridiculously – the only “evil” thing the violinist isn’t is white).
In non-rape, the analogy would be a pool of people who all volunteer to put their name in a hat, and the one drawn gets into thte bed with the violinist. Then, pulling the plug would get you sued or maybe put in prison.
So summarize, there are NUMEROUS logic flaws in that argument.
Next, the swimmer by the lake that views someone drowning: What is they were a lifeguard? I don’t know how the law applies in that case, but try this analogy – you are a doctor or nurse, and you the first on the scene of an accident. BY LAW, if no other aid is yet on hand, YOU MUST STOP AND HELP. That applies much better then the swimmer by lake. Again, the pro-death lobby uses an argument that sounds compelling but is actually full of many logical flaws.
OK, now down the the issue of “father’s rights”:
First, if it is fraud (the mother knows he’s not the father), then obviously, he should be relieved of duty. He is the victim of a crime (fraud), and we generally try not the punish the victim for the crime.
Also, child support should be part of the whole package of the father’s rights. You only pay child support if you are the father. If you pay child support you ARE the father, with all rights of the father (visitation, etc.). You can’t split them up.
The “for the good of the community” argument is completely full of crap – as someone else said, that can be applied to ANYTHING. Coming at it from another perspective, “for the good of the community” is what TAXES are for. The “father” in that case is basically paying extra taxes (lots of them), if you ascribe to the “good of the community” bit. Also, see “imminent domain” – the person whose land gets taken “for the good of the community” gets paid for it.
After those points, the water gets a little murkier.
“Voluntary assumption” of fatherhood: this only applies if the “father” knows the child is not his. If he knows, then he is voluntarily assuming responsibility of someone else’s child, and he should as of that moment have the only legal claim of fatherhood on the child – no one else pays child support, no one else gets visitation rights, etc. If he does not know, then he is assuming responsibility for his OWN child, a child which does not exist. The concept of a contract is very good here – the buyer has been given the wrong item. He should return it and get his money back, unless he is willing to pay the same price for the other item.
The “bright-line” thing would be great… if we would actually be consistent. What happens when there is no marriage? Then, following the logic of that particular bright line, no one gets stuck with child support. Consistency is the key – pick a standard, and apply it consistently. I think that’s in the works, it’s just that we’re changing standards right now. The other problem with “bight-line” standards is that lawyers are always finding ways to flaunt breaking them… but that gets into the whole legal system thing, which does have a major impact on this whole subject, but I’m not going into it here.
What to do when there is more than one father: what if the defrauded “father” is willing to continue being the child’s father, but the bio-father wants to press his rights? For argument’s sake, assume theee bio-father just found out about the existence of the child. Who is the child’s father? I would go with the assumed father, since he has been there all along, but that gets really sticky…
What a mess this whole thing is.
June 17, 2002, 11:28 amGeorge says:
The difficulty with viewing the child as a third party beneficiary is that mothers who receive child support generally don’t have to account for how the money is spent. Thus many fathers assume that it is being spent (at least in part and possibly correctly) on Mom and the new boy friend.
If there was an accounting requirement (show how the child support in spent upon the child and how the mother is spending an equivalent percentage of her income on the child) there would be a better case for the child as a third party beneficiary. I know that this can be difficult–how does one allocate costs (e.g., rent, food, a rented videotape watched by every one in the familiy) among familiy members who share many things? This is why an accounting generally isn’t done. It is, however, also why the child is not a true third party beneficiary.
June 17, 2002, 11:46 amJAE says:
toungue-in-cheek
The Left has a perfect solution to this entire mess: The Department of Genetic Records. We just collect a genome sample from every person in America (citizen, resident alien, tourist, foureign student, diplomat…). Then when a child is born we cross refernce the database to determine who the father is and if it happens to be some one who is now out of the picture the government automatically garnishes his wages for the next twenty-five years. Law enforcemnet could have some fun with this as well…
Of course, the scary thought is that somebody out there might read this and say “Hey! That’s not such a bad idea…”
John
June 17, 2002, 11:49 amandy B says:
This is silly. The purpose of life is to beget life, we are the vessels of our genes. Throughout most of human history the basic agreement between the sexes was that the woman would allow the male to fertilize her egg in exchange for support of the offspring. I firmly believe, though I don’t expect others to, that most of our behaviors are fundamentally affected by the collective hits and misses of thousands of generations playing the mating game. Cuckoldry is about the worst thing a woman can do to a man short of great physical harm. Forcing a man to uphold his end of the deal after the woman was proven to have violated the agreement removes the cost, and therefore encourages, the practice of adultery. I think we can find a happy milieu between stoning an unfaithful wife and forcing a cuckolded husband to support for 18 years his competitor’s progeny.
June 17, 2002, 11:51 amMichelle Dulak says:
David: There was a case decided out here in California just last week or so in which a “non-biological” father who was not even married to the mother gained custody of the child he had raised and loved for several years. His name was on the birth certificate as father, but the bio-father was a previous boyfriend. The case was complicated by factors that probably muddy the waters too much for it to be treated as a precedent to anything — the mother was a druggie, sometimes violent, often homeless, &c., and it seems unlikely that she would have been granted custody herself, so that it looked (from the accounts I’ve read, anyway) like the choice was “give the kid to the guy he’s always called Dad, or put him in foster care.” If the mother were articulate and financially stable, I wonder how it would’ve come out. Even this ruling, I think, reversed a lower court.
June 17, 2002, 11:53 amPeter Briffa says:
Surely you’re all missing the point. Why should men have to subsidise women’s breeding habits, be they the ‘natural’ father or not? You might as well insist that women subsidise men’s golf habit – it is a woman’s choice, isn’t it?
June 17, 2002, 11:56 amMichelle Dulak says:
George: There certainly are “child support” agreements that involve sums of money no one needs to raise a child. I seem to remember Barry Bonds’ ex asking for $3000/month or so in child support — per child. Innumerable entire families live on less than that. (Though not so many in the Bay Area, I’ll grant you.)
June 17, 2002, 12:12 pmJ Heslin says:
Glenn,
The paternity laws in these states, especially California, are fraudulance perpetrated by bureaucracy. See http://www.ancpr.org/california_paternity_justice_act.htm
These states are essentially “outsourcing” state welfare to men who are targeted for child support in some cases only because they have a *name* that closely resembles that which was recalled by the single mother. That is a crock.
And the unconscious violinist hypothetical is a crock. Parents are not unsuspecting. They may be surprised that birth control didn’t work, but they *knew* they were vulnerable to the possibility of conceiving.
June 17, 2002, 12:13 pmJoe says:
George, allocating cost shared by numerous individuals is done every day. It is what cost accountants do. It is a lot easier than most people realize. A single equation with variables for number of people in a house and sq. footage would allocate the childs ‘share’ of housing expenses.
June 17, 2002, 12:42 pmJorg X McKie says:
I still see little about the mother here. What are her responsibilities?
As far as “innocent parties” are concerned, isn’t the child more like a hostage? I.e., if non-bio father doesn’t pay up, we’ll hurt the kid? Would we pay a kidnapper indefinitely on the same basis? Should any mother *ever* be permitted to keep her child while using it as a hostage to force continued payment by a non-bio father?
Aside from fraud, has she committed any other crimes? After all, a great many stories have been written (some of them true) about women who deliberately attempt (and succeed) at becoming impregnated by men of resources in order to force access to those resources. How is this different from using a baby fathered by another man as a lever to force the flow of resources from the non-bio father? Isn’t this theft?
Was the mother unconscious during the whole mating activity that took place, so that she has no culpability? Or did she knowingly have sex (either with or without the knowledge that pregnancy was a likelihood) with the willingness to foist the responsibility of providing resources on a third party? Isn’t she responsible for anything?
In fact, why not just let women who have babies decide who to put the resource responsibility on? Maybe they would all choose some unpleasant wealthy person. (Why limit their choices to males? Isn’t that sexixt?)
In fact, suppose a lesbian or bisexual in a committed homosexual relationship has a baby by a man. Is the other female half of the relationship responsible for child support if she didn’t know about it and didn’t agree? (I guess we’ll have to suppose that the pregnancy occurred during the relationship and that the subsequent birth broke it up, so that the baby was born just before the split.)
It just seems to me that one *very* responsible individual appears to be left out of most of the discussion.
Having said all that, if I were to now discover that my (grown) children were not mine biologically, I can’t see how it would change how I feel about them — they’re mine and I’m theirs.
June 17, 2002, 2:19 pmJon says:
Two points:
The drowning man scenario seems to break down in my opinion, on the results of inaction vs. willful action. To stand on the shore and watch the man drown is one thing, but in the case of terminating a pregnancy, it seems a more accurate metaphor is that you are in your boat sailing, and the drowning man has a hold of your anchor chain (or some other boat part; a sailor I ain’t) clinging to it for survival. I think that terminating a pregnancy would be akin to knocking that pesky man off your anchor chain since you are taking an action that will definitely result in his demise, as opposed to doing nothing in which case he might make it with your boat to port (or he might not). While the standing on shore scenario requires action and risk on the part of the observer to rescue the drowning man, the boat scenario is closer to the reality of most pregnancies. I realize that there can be risks to the health of the mother in some cases, but I’m not saying that if the drowning man tries to climb in the boat and threatens to capsize it that you would be remiss in preventing that. I’m saying that knocking his hands off the anchor chain just because you didn’t want him grabbing onto your boat would make you responsible for his death.
And the unconscious violinist seems inapt; pregnancy rarely results in 9 months of incapacitation in a bed, depriving one of any other activity. I guess it’s stretched to an extreme to make a point, but as others point out, it’s not exactly unknown how pregnancies get started. Engaging in sex hardly seems the equivalent of getting kidnapped by insane violin music aficionados (unless one is engaged in sex with insane violin music aficionados, perhaps?) so I would have to agree with the previous comment regarding rape as the only case where this would hold water.
Or have I missed the point completely? I really enjoy your blog, Glenn.
June 17, 2002, 2:19 pmstan says:
Only one of the posts above deal at all with the issue of the mother’s financial responsibility for her fraud. Everyone assumes that the financial support of the purported father is necessary for the child’s wellbeing. There are a lot of situations where Mom (&/or new mate) make enough to get by without the child support. It seems to me that financial hardship to the child should be a required showing before the purported dad should ever be on the hook.
June 17, 2002, 2:38 pmAndy Freeman says:
The assumption that the “owes child support” male who isn’t the father is the mother’s husband is incorrect in a large number of cases. (Women can put someone’s name on the birth certificate without that person’s knowledge or consent, and by the time he finds out, the bureacracy is after him and some clocks have started ticking.)
There’s also some interesting questions regarding infidelity leading that leads to divorce, namely, why should an unaware cuckold who moves promptly to sever the relationship get stuck?
June 17, 2002, 2:55 pmKen Summers says:
Make Donald Trump pay the child support. He can afford it.
Better yet, get Nelson Rockefeller – he’s too dead to argue about it.
My point is, “what happens to the child?” has nothing to do with who is obligated to pay. If the biological father is not known and there is no one to hang it on, the child still needs support from someone. The only issue is whether it should be someone who was defrauded.
There was a long article about this in, I think, National Review Online some weeks back, which characterized many states as having, in effect, a bounty system for child support – the more “deadbeats” the state bagged, the more money they got from the feds. Predictably, the CWS workers are more interested in body counts than accuracy.
June 17, 2002, 3:43 pmDavid says:
stan,
The WOMAN responsible?!? What kind of male chauvanist bastard are you? Everyone KNOWS that women are perfectly innocent, wonderful, constantly victimized people!
OK, on a more serious note, I have to agree with you about the woman being able to make it on her (or with a new “partner”), but the argument will ALWAYS be made assuming she can’t. And in cases where she can’t, someone has to pay. And SOMEONE should be the father. Of course, the father should actually BE the father, not just some guy with some money.
Oh, and here’s another story about this – I read a story recently about a man who was imprisoned for 9 years, convicted of a rape/murder. He was eventially released (they said his trial was a racist mockery of justice, or some such thing – he was black and the 2 witnesses [who probably actually committed the crime, BTW] were white, as were several other people involved, blah blah blah). Guess what happened with his child support (which he was up to date on before he was arrested)? The state started garnering his paychecks for BACK CHILD SUPPORT! Who can he sue? No one. The state refuses to accept responsibility for 9 years of wrongful imprisonment, and the child support people won’t give him the time of day (he’s a deadbeat, you know). Wow – talk about being screwed over!
June 17, 2002, 5:11 pmgeorge says:
Joe,
Sure accountants allocate costs every day, but it’s complicated and involves judgment. Now try making a high school drop-out do it in an intelligible manner.
For example, can the mother living with one child allocate half of the cost of her two bedroom apartment to child support? Or just the difference between a two bedroom apartment and a one bedroom unit? Does the fact that the mother rents in a different town becuse of the kid have to be factored in?
Second example: The family rents the Harry Potter video. If the mother wouldn’t have watched it in the absence of the child, does all of it count as child support? Or does the fact that the mother watched it mean only half the cost goes against the child support?
Add in another child that the father is not paying for, and it gets even worse.
It’s not that easy to allocate costs, and disagreements would likely lead to further disputes between the parents so courts almost never require it.
June 17, 2002, 5:25 pmcarl says:
John wrote: (toungue-in-cheek)
[...] when a child is born we cross refernce the database to determine who the father is and if it happens to be some one who is now out of the picture the government automatically garnishes his wages for the next twenty-five years. Law enforcemnet could have some fun with this as well…
Of course, the scary thought is that somebody out there might read this and say “Hey! That’s not such a bad idea…”
——-
Hey! That’s not such a bad idea…
…ok, better idea: all guys should get their kids DNA tested immediately after birth. Put it in the pre-nups. Make it a hospital procedure as routine as circumcision. No need to invoke a federal agency.
Problem solved from the cuckoldees end, no?
Carl
June 17, 2002, 9:13 pmharmon says:
Jonathan: “At the very least, a guy who had a one-night stand with the mother, and who can be proved not to be the father, ought not to be liable for child support.”
It’s hard to disagree with the point you make. But I’ll try!
Now what follows may be more simply stated than messy reality would reveal, and perhaps I’m wrong about what the law was, but here’s the way I see it:
Traditionally, both a formally married husband and a common law husband had legal responsibility for a child or the marriage (even if the actual father were known) not because of the biological paternity, but because of the societal decision that the “contract” between the man and woman contemplated that they both would be responsible for any child born while the marriage existed.
In other words, the concept which previously existed was *not* that the man was responsible for the child because he was the father, but rather, that the man was responsible because he was the husband (formal or informal) of the wife. It obviously helped that the man was probably the father anyway, but I don’t think that the underlying reason for this rule was the biology – it was the social consensus, as expressed by the law. Now, I think that is a good rule and should continue to be the rule.
I think that the question about the “one night stand” should be decided in the context of the old rule. The question is not about biological paternity, but rather, about the kind of agreement society is going to impose on the parties to sexual arrangements, including a one night stand, in order to avoid creating a situation where the state effectively becomes the father of any child born to an unwed woman due to the economics of single parenthood.
For the one night stand, we might want to have a rule which I will call the Grover Cleveland Rule (he paid support for a child that might well have not been his) that says that any and all men who sleep with a woman are responsible for any child that woman has within one year of his sleeping with her. This rule would tend to encourage the woman to identify all the men she slept with, not just the poor guy with the luckiest sperm, and would have the benefit of spreading the financial liability so that it become more likely that it will actually be paid.
I see the “not the biological father” defense as ultimately unraveling all the social arrangements we have for taking care of children, and to the extent that happens, you can depend on the responsibility of support for increasing numbers of children being thrown on society at large. If the NBF rule becomes the law, it will not be confined to the one night stand situation. It will – has – gradually erode the arrangements we have for more permanent liaisons.
June 17, 2002, 11:34 pmharmon says:
Martin: “I suppose the test I would put any system to on this matter is this one: Suppose A has husband B, but adulterous affair with C, which results in a child. A divorces B and marries C. Does B owe child support? It seems ridiculous that he should.”
Perhaps at first blush, but you stopped too soon, so let’s consider: C has obviously damaged B by causing A to bear a child B is financially liable for. Therefore, to the extent that B can prove the amount of the financial damage, C must reimburse him. If B is responsible for any child support, then obviously C must repay B for the amount of that child support. So things wind up with A married to C, who is liable for all the support.
Alternatively, a court might decide that both A and C are responsible for the child’s support, but since public policy should favor the stability of marriages, and since adulterous liasons tend to destablize marriages (at least, if they become known) C should still bear the entire cost because of his actions.
I believe that in the good old days, there really was a cause of action – “alienation of affection” – under which a cuckolded husband could sue his wife’s paramour. More evidence that the old ways are often the best.
June 17, 2002, 11:51 pmBarney says:
“what if you are a strong swimmer, and one day while walking by the lake see someone drowning? You could save him very easily–but the common law rule is, you have no duty to do so.”
This would fit the abortion question if the woman was the Virgin Mary, and, as stumbling upon a drowning person unexpectedly, she miraculously noticed a life present in her womb. Assuming the pregnancy came about by conventional means, a more appropriate analogy would be that of someone walking by a person near a lake, tossing them in, then refusing to save them.
June 18, 2002, 5:41 amDan says:
I have read some very poignant arguments. However, very few individuals get what this is all about.
The reason the government is pinning child support on the “duped” dad is not because he rolled the dice and slept with the mother. It is because the government employees are lazy. One in the hand is worth two in the bush, sorta speaking. No pun intended.
And the argument about riding the ride and paying the fare despite not getting the prize is full of holes. Since when is even putting up with the cheating ho not a heavy fare in its own right?!
The problem with the government is this damned ineffecient “if/then” mindset. This is the way it should go down. When the husband learns he has been duped he should have the option to continue to parent the child. If the woman was stupid enough to sleep with some guy who she doesnt even know his name or where he works then she should be wholly responsible for the costs (maybe with state welfare support). When the biological paramour has been identified and verified he should be held responsible for past and future child support but should have no visitation rights unless duped dad vacates his role.
By this means the incentive for scot-free paramours and possessive ho-moms (who have several children by various men to prevent any one from getting custody (and judges are not going to want to split the kids up)) is removed and an incentive is induced to encourage the psychological duped dad to continue to remain a strong and vibrant part of the child’s life because now he has the opportunity of gifting some or all of his “new-found” money on the children.
The two most innocent people in this scenario win in this situation and meanwhile it sends a strong message to the primary culprits that their behavior is destructive to families and will not be rewarded or tolerated.
If we do not do anything about this situation then what is going to stop the duped dad from saying “To heck with it. I am getting penalized for being responsible. From now on, I will be the one to do one-night stands using a fictitious name and maybe even sleep with the wife of a judge, lawyer, politician, or child support employee and let them get stuck with paying for MY lecherous fun and let them suffer the humiliation compounded with child support.
The solution is easy. The problem is lazy courts going the direction of least resistance instead of REALLY abiding by the law or thinking of the best interest of the child.
Meanwhile, if anybody knows of any non-biological custody cases in NY I would like to hear from you. Thanks
October 8, 2002, 6:51 pm