THE U.S. CENSUS count, taken every 10 years, is used to rethink public policy on everything from schools and hospitals to voting districts and roads. Government officials pore over the data and decide whether to change the social, political or economic status of those counted.
The 2000 census makes clear that married mothers and traditional families are on the decline. Shouldn't we use this data, then, to rethink family law, particularly the legal image of fathers?
The number of women raising children without a husband grew by more than 25 percent in the last decade, and only a quarter of American households fit the traditional family model of mother, father and kids. Even in the minority of households that could be described as traditional, roles of men and women have changed. The once clearly defined roles of mothers as child caregivers and fathers as breadwinners have eroded.
Although many debate the extent of the change, most agree that men today are participating more in family life than did their fathers. Popular culture images of fathers have abandoned the distant provider in favor of the nurturing caregiver. Think of the father in the Volvo commercial driving back and forth between a soccer game and a swim meet. Social scientists have filled books and journals with studies purporting to demonstrate the importance of fathers in all aspects of the lives of children.
But, as is often the case, the law lags behind. The legal definition of fatherhood has changed little in the last 100 years. For centuries, the law's answer to the question of who is a father was simple: the mother's husband. Before DNA testing, the husband of the woman was presumed to be the biological father of her child, and so was proclaimed the child's legal father. The only recognized exceptions were cases where a man was sterile or impotent.
This "marital presumption" permitted courts to assume a set of biological facts in the name of preserving the sanctity and stability of what was assumed to be the cornerstone of a healthy society -- the traditional family of husband, wife and children. In the last decades of the 20th century, science developed paternity testing with results approaching certainty. Despite the availability of DNA testing, the marital presumption is still used in many courtrooms to answer the question of who is the legal father. What one scholar has called "the law's struggle to preserve the fiction of an older moral order" has become increasingly inadequate in defining today's father.
One arena where the inadequacy of the law's definition of fatherhood is evident is in the cases columnist Ellen Goodman recently called the "Duped Dads." These cases typically involve situations in which a man has consented to paternity of a child without DNA testing, and later, often after many years have passed, questions whether he is the biological father.
For the record, not all fathers in these cases are innocent victims. They may have consented to paternity to solidify a relationship with the child's mother or to facilitate receipt of welfare benefits. Whatever the motive for agreeing to paternity without DNA tests, that decision often prevents further investigation or legal determination of paternity until too late for the child to establish a relationship with the biological father.
Challenge at divorce
In many cases, the challenge comes at divorce when child support is about to be ordered or after the state attempts to collect back child support through one of its many new tools -- revoking a driver's license, intercepting a large tax refund or threatening jail.
While some courts have relied on the marital presumption to resolve these cases, that rule works only where the mother was married when the child was born. And the principal justification for the rule -- to preserve the traditional family -- makes sense only if such a family is there to preserve.
A few courts, in the interest of collecting child support or reducing the welfare rolls, have cut off a man's right to challenge paternity after a fixed period, usually one or two years after the paternity order. Courts in other states, including Maryland, have responded to changing patterns in families by opting for a rule based on biology. If a man has suspicions, he's entitled to have DNA testing. If he's excluded as the biological father, he is no longer a father under the law.
While this biological test might protect "Duped Dads," what about fairness to the child, the truly innocent party in this triangle?
Marriage and biology have little to do with the person a child thinks of when asked about her father. If she is lucky, she thinks about the person who is there each day when she wakes up, who makes lunches before school or does the car pool or carries the laundry up from basement and is a good partner to her mother. Or she may think of a person she does not live with, but sees regularly and who supports her emotionally, financially and all other ways that count.
