For centuries there has been a legal presumption that a child born to a married woman is her husband's child.^[11] The presumption was indisputable, if husband and wife were cohabiting at the time of conception, absent proof of the husband's impotence.^[12] The biological father was consistently denied any opportunity to establish paternal rights over the child, although certain members of the marital family and their descendents could challenge the presumption if the parents were not cohabiting at the time of conception. The presumption of paternity, which originated in the common law, has been codified in California and elsewhere. (See, e.g. Cal. Fam Code § 7540). Although genetic test results now make it possible to disprove a husband's paternity, most courts will not award substantive parental rights to the natural father of a child conceived within and born into an existing marriage, that wishes to embrace the child. (See e.g., Michael H. v. Gerald D. 491 U.S. 110, 127 (1989)).^[13]

Under California law, a child born to a woman who is cohabiting with her husband is conclusively presumed to be a child of the marriage, unless the husband is impotent or sterile. In Michel H. v. Gerald D., supra, the United States Supreme Court considered whether the presumption infringes unconstitutionally upon the biological father's due process rights, and concluded that it does not. The Court found that the biological father had no protected "liberty" interest in the parental relationship and the State's interest in preserving the marital union was sufficient to support termination of his relationship with the child.^[14]

The Supreme Court of Iowa came to the opposite conclusion in Callender v. Skiles, 591 N.W.2d 182 (Iowa, 1999). In that case, the mother was separated from her husband at the time of conception, although husband and wife reconciled and were once again cohabiting when the child was born. The husband assumed responsibility for the child, and began to raise her as his own. Six months later, the child's natural father filed an application to establish paternity, visitation, custody and child support. Although DNA testing showed that the husband was not the child's biological father, the trial court granted the husband's motion to dismiss the application, on the ground that the biological father lacked standing to challenge the husband's paternity, under Iowa's paternity statute. The Supreme Court of Iowa reversed, finding that the statutory provision violated the biological father's constitutional due process right, because the father had a protected "liberty" interest in establishing a parental relationship with his child. Similarly, a Minnesota court found that a man had standing to seek to establish his paternity through genetic testing, based on a showing that he had access to the mother at the probable time of conception, Witso v. Overby, 609 N.W.2d 618 (Minn. Ct. App. 2000).

In a unique decision, The Supreme Court of Louisiana found that neither laches nor the presumption of paternity prevents a biological father from avowing paternity six years after the child's birth, T.D. v. M.M.M., 730 So.2d 873 (La. 1999). The court reasoned that several policy factors, including the advantages of the child's receiving support, inheritance rights and nurture from both fathers, favored allowing a biological father to avow his paternity, where the action will result in dual paternity.

The Supreme Court of Montana permitted the biological father of two children, born to another man's wife, to establish paternity and obtain custody of the children, after the deaths of the mother and her husband, the presumed father, Girard v. Williams, 1998 Mt. 231, 966 P.2d 1155 (1998). Under Montana law, the presumed father's relatives, who had physical custody of the boys, lacked standing to challenge the biological father's petition.^[15]

Many courts find that the equitable doctrines of laches and paternity by estoppel bar presumptive fathers from denying paternity of children born during the marriage. For example, the Supreme Court of Connecticut found that a presumptive father was equitably estopped from disavowing paternity of his 12-year-old daughter, although the child was born before the marriage, W.v.W., 248 Conn. 487, 728 A.2d 1076 (1999). W. always knew that he was not the girl's biological father, but he held himself out as her father, treated her as his daughter, and provided psychological and financial support throughout her life. Furthermore, W. discouraged the mother from seeking genetic testing and pursuing child support from the child's biological father because W. did not want the biological father to play any role in the child's life. After the mother filed for divorce, W. initiated an action to disestablish his paternity of the child. The court found that the child would suffer an enormous emotional trauma if she learned that W. was no longer her father or was no longer responsible for her well-being. Furthermore, the court found that W.'s actions had prevented his daughter from forming a loving and nurturing relationship with her natural father and that W. had prevented the child from obtaining support from her biological father, who could not now be located.^[16]

Equitable estoppel has three elements: (1) representation by word or conduct; (2) reasonable reliance on that representation; and (3) prejudice caused by reliance. In paternity disestablishment cases, the elements of representation and reasonable reliance are satisfied if:

Every element must be satisfied. Thus, the mother of an out-of-wedlock child was not estopped from pursuing a paternity/child support action against the child's biological father and seeking a declaration that her husband was not the father of the child, Rubright v. Arnold, 973 P.2d 580 (Alaska, 1999). Although the mother had not told her husband about the affair, and had placed his name on the child's birth certificate, the putative father could not show any detrimental reliance. Similarly, the Supreme Court of Iowa found that the child support agency was not estopped from bringing a paternity/child support action against a putative father, on behalf of a child, although the child was born during the mother's marriage to another man, was named after the husband, and both husband and wife had claimed that the husband was the child's father during divorce proceedings, State ex rel Hopkins v. Batt, 253 Neb. 852, 573 N.W.2d 425 (1998). The court reasoned that since the claim belonged to the child, the child could not be estopped from asserting it by the parent's conduct.

Although a majority of courts find that the risk of emotional harm inherent in severing a child's relationship with a psychological parent satisfies the third prong (prejudice caused by reliance), at least one jurisdiction requires a showing of financial prejudice. (See, B.E.B. v. R.L.B., 979 P.2d 514 (Alaska, 1999)). In that case, the father was married to the mother when the child was born 8 years after the father had a vasectomy. Although he was not the girl's biological father, the husband treated her as his own, until the parties separated three years later. After the separation, the father distanced himself from this child, but she continued to think of him as her father. The divorce court found that the father was estopped from denying paternity, based on evidence of potential emotional harm to the child. The Supreme Court of Alaska reversed, and held that estoppel should only be applied where the petitioner could show financial harm.^[17]

Laches is available as an equitable defense when a plaintiff unreasonably delays seeking relief and a defendant suffers prejudice because of the delay. Although the Doctrine of Laches has long been applied to paternity cases, the Supreme Court of Alaska recently found laches "an unsound basis for adjudicating legal paternity" where the presumed father was married to the mother at the time of the child's birth, but was not the child's biological father, T.P.D. v. A.C.D., 981 P.2d 116 (Alaska, 1999). In that case, the presumptive father and mother met when the mother was several months pregnant, but married before the child's birth. The husband was listed as the father on the child's birth certificate and held himself out as her father until the parties separated four years later. The trial court found that the father's disestablishment action was barred by the doctrine of laches because his long delay in seeking to disestablish paternity had prejudiced the ability of the mother and child support agency to find the child's biological father. The Supreme Court of Alaska reversed directing the trial court to enter an order of non-paternity and vacate the father's obligation to support the 9-year-old child.

Some jurisdictions permit a presumed father to seek disestablishment, if he acts promptly. The Supreme Court of Louisiana concluded that paternity of any child conceived during a marriage becomes irrefutable, unless it is timely challenged, even if husband and wife are living separate and apart at the time of conception, State v. Walker, 700 So.2d 496 (La. 1997). Mr. and Mrs. Walker began living apart two years before the child's birth, and allegedly never had sexual relations after the separation. They never divorced. The child's birth certificate lists Walker as his father. After the mother died, her sister gained custody of the 15-year-old boy and the State initiated a child support action against the husband. The Supreme Court of Louisiana found that Louisiana's paternity statute estopped the father from disavowing paternity more than 180 days after the child's birth.^[18]

At least one court found that the Mississippi Department of Human Services has standing to challenge the presumption of legitimacy of children for whom it provides support, in order to collect support from the children's biological father, Department of Human Services v. Gaddis, 730 So.2d 1116 (Miss. 1998). In that case, the mother applied for and received public assistance from the State. Although she was married to another man when her three children were born, she identified Gaddis as the biological father of all of the children. The IV-D agency then filed a complaint to determine the paternity of the children and a motion for genetic testing. The chancellor granted Mr. Gaddis motion to dismiss, concluding that the child support agency lacked standing to bring an action to determine the paternity of children born to an existing marriage. The Supreme Court of Mississippi reversed this decision, concluding that the child support agency had standing to seek a determination of paternity in order to recoup, from the biological father, some or all of the State's cost in supporting the children. (See also, State ex rel Hopkins v. Batt, 253 Neb. 852, 573 N.W.2d 245 (1998)).

A determination of paternity included in a divorce decree generally establishes the paternity of a child conclusively. The doctrine of res judicata "prevents a party from suing on a claim which has been previously litigated to a final judgment by that party…and precludes the assertion by such parties of any legal theory, cause of action or defense which could have been asserted in that action." Dixon v. Pouncy, 979 P.2d 520, 523 (Alaska, 1999), quoting 18 James Wm. Moore. Et al. Moore's Federal Practice § 131.10 (3d ed. 1997). Res judicata will prevent the parties from re-litigating the issue of paternity, unless the petitioner can show that the judgment was obtained by fraud.^[19]

The Supreme Court of Arkansas addressed this issue in Office of Child Support Enforcement v. Williams, 995 S.W.2d 338 (Ark. 1999). Brenda and Thornell Williams married in 1979. Their 1990 divorce decree awarded Brenda custody of three children born during the marriage, set visitation, and ordered Mr. Williams to pay child support. In 1996, Mrs. Williams filed a motion to increase the child support obligation and recover accrued arrears. The Office of Child Support Enforcement intervened in the action because the mother had assigned her child support rights to the State. The father agreed to entry of a consent judgment that established the amount of his arrearage and increased the amount of his child support obligation.

Three months later, the Office of Child Support Enforcement initiated an enforcement action. In response, Williams filed a petition to modify the order, claiming that he was not the biological father of the two boys. After genetic testing showed that Williams was not the children's biological father, the court abated his child support obligation. The court acknowledged that "from a purely legal standpoint, the argument that res judicata applied was correct, but from an equitable standpoint, [the court] was not going to force the appellee to pay child support on two children that were not biologically his."

The Supreme Court of Arkansas reversed, finding that a divorce decree is res judicata on the issue of paternity. In addition, the court cited a number of policy considerations that favor the principle, including the child's interest in preserving an established parental relationship and the State's interest in deterring parents who might seek to dissolve their parental bonds for financial or other self-serving reasons.^[20]

Res judicata will not bar a presumptive father's Rule 60(b) motion to set aside a divorce decree's paternity provisions. Thus, an Alaska court permitted a father to challenge divorce decree provisions that declared him the father of the wife's nine-year-old child and ordered him to pay child support, Dixon v. Pouncy, 979 P.2d 520 (Alaska, 1999). The father's motion was filed 2-1/2 years after the judgment was entered and nearly a year after the father obtained DNA test results which showed that he could not be the child's biological father. The Supreme Court of Alaska held that the claim was not barred by the doctrine of res judicata, although the issue of paternity was raised in the divorce case and the father had a clear opportunity to fully litigate the issue in that action. The court reasoned that a Rule 60 motion is not a collateral attack but rather a direct attack on a prior judgment and it would be inequitable to require the father to support the child if he were not the biological father.

Although the doctrine of res judicata bars the parents from re-litigating a divorce court's finding of paternity, at least one court found that a child support agency was not barred from initiating a subsequent paternity/child support action against the alleged biological father, who was not a party to the earlier action. State ex rel Hopkins v. Batt, 253 Neb. 852, 573 N.W.2d 425 (1998)

Dep't of Human Services v. Gaddis, 730 So.2d 1116 (Miss. 1998). The Department of Human Services has legal standing to challenge the presumption of legitimacy of children for whom it is providing support in order to establish paternity in one alleged to be their true biological father.

Callender v. Skiles, 591 N.W.2d 182 (Iowa, 1999). The biological father has standing to overcome Iowa's presumption that the mother's husband is the child's father. He has a constitutionally protected liberty interest in defeating the presumption. The rights of the putative father cannot be denied without a hearing.

T.D. v. M.M.M., 730 So.2d 873 (La. 1999). Laches did not prevent the biological father from intervening in the legal parents' custody proceeding to have his parental rights acknowledged six years after the child's birth and less than one year after the mother cut off access from the child. Louisiana's court found several policy factors favored allowing a biological father to avow his paternity where the action will result in dual paternity.

Girard v. Williams, 1998 Mt. 231, 966 P.2d 1155 (1998). The biological father was granted custody of the children who had never known him. The presumed father's relatives, who had physical custody of two children, lacked standing to challenge the biological father's petition for custody.

Blecha v.Blecha, 257 Neb.543 (1999). Absent charges of abuse or neglect, the father's natural right to the custody of his children trumps the interest of strangers to the parent child relationship and the preferences of the child. Thus, the biological father was granted custody of his out-of-wedlock child after the mother's death although the child had not lived with the father, but rather with the maternal grandmother and aunt.

Brinkley v. King, 549 Pa. 241, 701 A.2d 176 (1997). The presumption of paternity does not apply, where the mother and her husband had separated before the child's birth, and were divorced at the time the mother filed her paternity/support action against the putative father.

T.L. v. C.S. 975 P.2d 1065 (Wyo. 1999). Results of genetic testing which showed another man to be the biological father of the child, with a 99.9 % probability, rebutted the paternity presumption arising in favor of a man who received the child into his home and held himself out to be the natural father of the child.

Dawn D. v. Superior Court of Riverside County, 17 Cal.4^th 932, 952 P.2d 1139 (1998). The biological father has no constitutionally protected interest in defeating California's presumption that the mother's husband is the child's father.

Treimer v. Lett, 587 N.W.2d 622 (Iowa, 1998). The biological father lacked standing under Iowa's paternity statute to overcome the presumption that the mother's husband is the father of the child.

Strauser v. Starr, 726 A.2d 1052 (Pa. 1998). The biological father's custody petition was dismissed, although his paternity was confirmed by genetic testing results. The presumption of paternity was not rebuttable where the husband had access to the mother and was not impotent at the time of conception.

Freshour v. West, 334 Ark. 100, 971 S.W.2d 263 (1998). Although Arkansas recognized common-law principles tend to favor an award of custody of a child to a biological parent as opposed to a third party, the most important factor is the best interest of the child. Awarding custody to the maternal grandmother was in the child's best interest, as the grandmother had been her caretaker since birth and the father had shown no interest until the State initiated a paternity/child support action.

Hamm v. Office of Child Support Enforcement, 336 Ark. 391, 985 S.W.2d 742 (1999). Upon motion of either party, the court shall order the putative father, mother and child to submit to scientific testing to determine whether the putative father can be excluded and to establish the probability of paternity. Ninety-five percent probability and testimony regarding access establishes a prima facie case of paternity.

Grober v. Dep't of Revenue, 956 P.2d 1230 (Alaska, 1998). The court could order genetic testing of the mother, putative father and child in a paternity case, filed ten years after the child's birth. A standing order requiring genetic testing in cases brought by the child support agency, where the putative father denies paternity, did not deny the father due process and he was not subject to unconstitutional search and seizure. A paternity action is timely if filed during the child's minority. The child support agency had standing to bring the action.

State ex rel. T.L.R. v. R.W.T., No. 98 CA-2274, 1999 La. LEXIS 4 (Jan. 20, 1999). Results of genetic testing, not challenged within the statutory time period, are prima facie evidence of paternity. Putative father could not argue that he was deprived of the right to examine a witness in a UIFSA action where he did not attempt to take advantage of the opportunity to cross-examine witnesses by phone or to subpoena documents.

Dep't of Human Services v. Bell, 1998 Me. 123, 711 A.2d 1292 (1998). Maine statutes permit establishment of paternity any time prior to the child's eighteenth birthday, but the responsible parent would owe child support only for the six years prior to the commencement of the action.

In re Estate of Vincent Chambers, 711 So.2d 878 (Miss. 1998). The trial court erred when it disregarded paternity test results which indicated there was more than a 98% probability that Chambers was the child's father.

Hogan v. Buckingham, 730 So.2d 15 (Miss. 1998). The mother of the children's deceased half-brother did not have legal standing to challenge a prior determination of paternity although the order was entered in a default judgment and no genetic testing was ever performed. The children were entitled to inherit from their brother's estate.

In re M.C. v. O.C., 703 N.Y.S.2d 483 (N.Y. App. Div. 2000). The putative father, who did not submit to additional genetic testing, could not rebut the presumption of paternity based on genetic test results that showed a 99.77% probability that he was the child's biological father.

Brown v. Smith, 526 S.E.2d 686 (N.C. Ct. App. 2000). The trial court properly admitted genetic testing evidence that indicated a 99.9% probability that the putative father was the father of the child.

Meyer v. State Child Support Enforcement Division, No. S-8187, No. 5226, 1999 Alas. LEXIS 175 (Dec. 30, 1999). Summary judgment was inappropriate although genetic test results placed the probability of Meyer's parentage at 99.98%. The father's sworn denial that he had sexual intercourse with the mother during the period of her conception created a genuine issue of fact, sufficient to preclude summary judgment.

Wright v. Shorten, 964 P.2d 441 (Alaska, 1998). The Supreme Court of Alaska vacated a default judgment entered against the putative father. The father's letter, in which he denied paternity, constituted an answer to the mother's complaint.

C.R.B. v. State, 974 P.2d 931 (Wyo. 1999). Placing the service-of-process summons and complaint in the putative father's mailbox was sufficient, given that the putative father had refused to accept service and was told that the documents were being placed in the mailbox.

D.M.M. v. D.F.H., 954 P.2d 976 (Wyo. 1998). The Wyoming court did not unconstitutionally deny the father due process when it did not conduct an evidentiary hearing, before it entered a default judgment, which established the putative father's paternity.