Few issues in family law inspire such debate among people as paternity cases. Technically, any legal action that establishes an unmarried father as the parent of a child is a paternity case. California calls them Parental Relationship cases, but because we always know who the mother of the child is, there are very few maternity cases. I did not find data to illustrate this point, but I have probably handled 100 parental relationship cases in 12 years of being a family law attorney, and zero have been maternity cases.
The majority of paternity cases are “accidental father” cases. Virtually all accidental father cases are accidental mother cases, too – I do not buy into the infamous popular idea that there are women (in any real numbers) who attempt to trap men by getting pregnant on purpose. That’s not to say that it does not happen, but that I believe it is rare.
The Accidental Father Has No Say, which Fuels Paternity Cases
The debate about paternity issues comes from the very contentious point that accidental mothers decide whether to carry the pregnancy to term or not. Men invariably have many feelings about an accidental pregnancy, and they may be vocal about those feelings, including the mother’s decision to have an abortion or to carry a child to term. But they do not get a vote in the outcome.
This article is not about challenging the mother’s sole right to choose what to do with her body – it has been the law of the land for 50 years and I hope that it remains so for another 500 years.
But because child support laws (and shared morality) require that even accidental fathers “take (financial) responsibility” for an accidentally-conceived child, a man who has a drunken tryst or a man who is told by a woman that she is on birth control, or a man who puts a condom on incorrectly, or a 16-year-old boy who messes around with his 15-year-old girlfriend in the backseat of a car, will be bound for life to a child he had no intention of conceiving. His only “choice” about whether to have that child comes in the heady moment before insertion of penis into vagina (sorry to be graphic but that’s how it happens).
Accidental Mothers Carry a Disproportionate Burden
This is not to say that women do not also carry a disproportionate burden by carrying and caring for an accidentally conceived child. I think Ruth Bader Ginsberg was right when she said that Roe v. Wade should have been decided on equal protection grounds (in other words, pregnancy affects women disproportionately and they should therefore have control over whether to terminate or carry a pregnancy).
But there is a big difference between the sexes: only women have the choice to carry to term or terminate their pregnancy. To be sure, there are tens of thousands of women and girls who do not have access to abortions in the United States; the right to terminate a pregnancy has not been in more doubt in nearly 50 years since Roe v. Wade. However, the “access to abortions” and the “disproportionate impact” problems are problems that can be resolved with more choices for women: better education about sex, better access to birth control that women can control, and better access to both “morning-after” pills and abortions.
The Male/Female Divide in an Accidental Pregnancy
None of those problems resolve the fundamental male/female divide: the man’s choice, at least under color of law, of whether he is going to be an accidental father, begins and ends in the moment before the sex begins.
Yet the male/female divide does beg the question: are we to hold both parties responsible for the life of an accidentally-conceived child for a decision made in a split-second at the time when both parties are least able to calmly make the decision?
Accidental Pregnancy and Child Support
In California, DNA determines financial responsibility, at least until another father accepts financial responsibility for the child. Men do not have a corresponding choice about whether to be responsible for the child financially. In fact, for accidental fathers in California it can be much worse than just “being financially responsible.” The two most important factors in California’s child support calculation are timeshare percentage and the difference in the relative earnings of each of the parents. Child support calculations increase as parental timeshare decreases and increase as the difference in the relative incomes of the parties increases.
Accidental fathers will, almost assuredly, have very little timeshare with their newborn child (they are not married, do not live in the home with the child, and since breastfeeding and bonding are so important to an infant, they will never have the child more for than a few hours at a time for the first year or two. Timeshare will grow slowly over the next few years).
On the other hand, new mothers rarely go back to work immediately. Because California child support laws require each parent to contribute equally to childcare costs, the cost of childcare (hovering around $2,000 per month for an infant) is roughly the equivalent of minimum wage gross earnings. It almost never computes to have a brand-new mother go back to work quickly, because even though her income will reduce the child support payment for the accidental father, the childcare costs will outstrip any reductions.
Unmarried Accidental Fathers & Family Court
In many ways the brand-new accidental unmarried father is in the worst position of any litigant in family court. (I am here excepting domestic violence abusers because they are in their position from having have committed a crime). Accidental fathers will have the least timeshare with the child, the greatest differential in income with the mother, and will not receive any court relief for several years. If the accidental, unmarried father is young and/or poor, this gets worse because the mother may end up receiving public assistance, which means that he cannot negotiate child support, and the support payment will be more of a burden on him than it would be on an older, wealthier accidental father.
For example, a state employee who earns $120,000 per year may pay $2,000 per month in child support payments for an infant he does not see very often. No doubt this is a painful number, but it still leaves him with $5,000 or $6,000 per month to live on after taxes. On the other hand, a minimum wage-earning new father ($2,000 per month), may have a child support payment of $300-400 per month, leaving him with only about $1,100 per month to live on.
While the mom is clearly not living on easy street either, she does receive roughly that amount in government assistance monthly, and she has medical coverage and food stamps.
One the problems is that a woman has a number of months, depending on her state and access to medical care, to decide whether to keep or terminate a pregnancy. A man has only the moments before sexual intercourse to decide whether to use birth control (or hope that he is using it correctly).
When “Accidental” Mothers Lie: Rare, But it Happens
Moreover, a man is still a financially responsible parent even if the woman assures him that she takes her birth control pill every day; that she cannot get pregnant because her tubes are tied, that she is not ovulating, or if the condom, fails or breaks or gets a hole in it, or if he just uses it incorrectly. He is also financially responsible if the parties jointly decided to take the risk. His financial responsibility rests solely on whether the DNA test shows him to be the father.
And there is no way out of that responsibility for 18 years, whether he wanted to be a father or not. There are no rules in California that allow an accidental father to “opt out” of parenthood when the mother does not opt-out of parenthood.
The Accidental Father & Custody/Visitation
However, there are a series of parent statutes and cases that say fatherhood is not dependent on biology – basically, Courts are willing to cast off an unmarried (probably accidental) father who wants to be a part of their child’s life if the mother requests it; yet, the same statutes and cases would not allow an unmarried (probably accidental) father to choose to opt-out of financially responsibility. In other words, unmarried (probably accidental) mothers get to choose twice – first when deciding to keep or terminate a pregnancy, and then later with regard to visitation and ultimate parenthood (regardless of the father’s DNA paternity results).
Under California Family Code 7611(d), the only way for an accidental, unmarried father who has never tried to marry the mother to be named a presumed parent is if “[t]he presumed parent receives the child into their home and openly holds out the child as their natural child.”
Under California Family Code 7611(d), the only way for an accidental, unmarried father who has never tried to marry the mother to be named a presumed parent is if “[t]he presumed parent receives the child into their home and openly holds out the child as their natural child.”
“Received the child into their home”? What?
This anachronism brings about thoughts of the 1950s bastard child of a mistress being permitted by wealthy scions to enter the great hall and kiss the ring in hopes that the father will acknowledge him (and perhaps leave him a part of his estate). In other words, being a parent for the purpose of custody and visitation is not based on biology. Men are responsible financially based on an outdated idea that they “did this” to the woman. The older cases read exactly this way – the man has financial responsibility as a deterrent to nonmarital sex.
To be fair, the Department of Child Support Services processes many child support orders based solely on unwilling-DNA cheek swab tests. But that child support obligation does not guarantee visitation and custody rights. And an accidental father must pay child support forever, or until another man speaks for the financial responsibility of the child (and holds the child out as his own and receives him into his home).
It is an oddity that a child support order based on a DNA test does not automatically give an accidental father any custody or visitation rights, while an accidental father who pays child support but has never received the child into his home (or has received him into a home, but not into a home that he leases or owns – such as if he is living with his parents), can have his presumed paternity taken away from him if the mother seeks to replace him with another father. Or if as in some horrific cases, the mother gets a support order but conceals the child or fights against the father having any visitation with the child.
Unmarried fathers who have not received a child into their home are also unlikely generally to be able to stop the mother from giving the child up for adoption, even if they are willing to raise the child with no involvement from the mother. Accidental mothers can solely opt for adoption to third parties, excluding the father from consideration if the father has never received the child into his home, but accidental fathers do not have the right to opt-out of being the child’s parent.
Should Accidental Fathers be Able to Opt Out?
There are no easy answers to this issue. However, some states have begun adopting rules that allow a father to opt-out financially (and as a parent) under certain circumstances. There is an injustice in making a single choice or mistake impact the rest of a person’s life – including important early years where a young man (or woman, but again, the woman has the choice) might choose to go to school or apprentice in a career or some other investment in his future, to be bogged down with a child support order that he may not be able to afford while for several years only having limited (or no) time to bond with the child.
The state has an interest in no opt-out provisions because two-parent responsibility for a child is the financial recompense for governmental financial assistance given to the mother.
In early years, child support should be set as a percentage of income and “counting minutes of custodial time” should not be included in making child support calculations. The Family Code and the Courts, by extension, could also align the law to support a DNA-based analysis of presumed parenthood and financial responsibility. (If you pay support for the child, you are the father.) Or if fatherhood depends on holding the child out as one’s own and receiving the child into your home, so too does financial responsibility.
The split between financial responsibility and parental rights from DNA on the one hand, and taking actions to acknowledge the child on the other, puts all the pressure on the woman carrying the child to make a decision to carry or to terminate – and then rewards her for not sharing the child in the early years when the father may never be able to receive the child into his home.
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