Marriage, Biology, and Paternity: the Case for Revitalizing the Marital Presumption

Abstract

This article examines the recent history and current status of the marital presumption of paternity. It explores the social, economic and legal developments that have contributed to the erosion of the presumption, focusing in particular on the efforts of federal and state governments to identify and collect financial support from unmarried biological fathers. The article then describes the procedural and equitable doctrines that some courts and legislatures have used to bolster the marital presumption in the face of conflicting biological evidence. Finding these approaches problematic, the article advocates a revitalized marital presumption as a substantive rule of law. It argues that marriage should generally be a sufficient – albeit not an exclusive – basis for ascribing legal fatherhood and that spouses and former spouses should have only a limited ability to rebut the presumption. The article also endorses the notion of dual fatherhood as an option for cases in which a child has both a marital and an involved genetic father