Odd Man Out: Paternity and Married Moms (Part Two)

putting children first in a divorce

In our previous post, we discussed the legal battle involving John and Sonja, who had a relationship while Sonja was separated from her husband, a relationship that produced a child that no one disputes is the biological offspring of John. But Sonja does not want John involved in the child’s life, and Florida law makes it difficult for John to establish his parentage. Would this happen in Missouri?

Missouri also recognizes the same presumption that Florida does with regard to children born during marriage – they are presumed the natural offspring of the married parents. Unlike Florida, however, Missouri allows a man alleging himself to be the father of a child to bring a paternity action. But this is just the beginning of what will be a challenging legal battle as well.

If John filed in Missouri, he would be able to proceed with his suit, but his burden of proof would be very high. Because the presumption is that the child is born of the marriage, it requires clear and convincing evidence that the presumption is wrong. While a DNA test will satisfy that burden, that is only the first hurdle. John would next have to show that his presumption of fatherhood should prevail over Sonja’s husband. How does the court decide? It must determine “which on the facts is founded on the weightier considerations of policy and logic.”

As you can see, this is not a very clear standard. It gives the judge tremendous discretion without much guidance. The policy in effect would be the best interest of the child – that always controls. So the judge must examine the facts and determine if changing the father to John would be in the best interest of the child. Given that John did have a relationship with the child only interrupted by the refusal of Sonja, and given the relatively young age of the child and the distance between Sonja and her husband, John would have a strong argument that establishing him as the father would be in the best interest of the child. But one can certainly envision factual scenarios where blowing up a father-child relationship would be detrimental to the child despite the biological relation.

These cases are complicated, fact intensive and at times heart wrenching. It may well have been wise for the legislature to give judges wide latitude to make the best decision for the child.

As an aside, a case of just this type is before the Missouri Supreme Court now and when it reaches its decision we will share it with you and how it may change a custody proceeding like that of John and Sonja.

If you have questions about paternity for children born during marriage, contact us – we can help.