What Makes a Dad: Genetic Paternity Versus Marital Paternity in Alabama.

By Matthew Curl

“Two wrongs never make a right.” “Sometimes life ain’t fair, son.” “We’re all on this Earth together, like it or not.” I will never forget how I struggled to find the meaning in these phrases as a child. Likewise, I will never forget the man behind them—my dad. The role of a father has not only been recognized as vital by society at large, but also as an essential element to a sacred institution across America—the family. Since the earliest days of the United States, courts have determined the legal recognition of and interpreted law surrounding legitimate parentage. The common law concept of “pater est quem nupitiate demonstrant”, meaning “he is the father whom the marriage points out”, dates to ancient Roman law, later adopted by the American colonies. This common law concept remained in effect in many state’s jurisdictions until the development of modern paternity testing in the 1980’s.[1]

The institution of marriage provides courts with a legal framework in which to view the family.[2] Marriage is the vehicle for parental rights, custody, and legal decision-making to be bestowed upon those bound by matrimonial contract. Within the parameters of the marital family, courts have clear standards and procedures for how rights and duties flow through the family unit.[3] Courts struggle when tasked with making these decisions outside of the marital format, triggering a system of legal presumptions when children are born outside of these structures.[4]

Unfortunately, the marriage format hangs on by slim majority for families needing these judicial resources. The number of children born out of wedlock has been on the rise for decades. From 1996 to 2022, children born to unmarried parents jumped from 28% to nearly 40%. [5] As of 2022, 45% of the children born in Alabama alone were born to unwed parents.[6] The framework of marriage is simply becoming less and less common. While the institution of marriage is and ought to be encouraged by the State, there must be an acknowledgment of the increasing number of unwed couples needing adjudication in family matters. Alongside the recognition of the need, judicial resources should be reallocated to address this growing area of law. It is in the interest of both judicial economy and the taxpayers that these resources be expended where they are most needed and most useful.

As it stands, the Alabama Uniform Parentage Act (“AUPA”) governs issues regarding the establishment of paternity and procedure in the state of Alabama, with important rules also in the Alabama Adoption Code.  Unmarried fathers are at significant disadvantages compared to unmarried mothers in the establishment of parentage.  Fathers thereby may face significant obstacles in being recognized as parents, and in parenting their children, particularly in circumstances where the mother does not want the natural father involved in raising the child.  The details of these issues between unmarried parents, where neither parent is married to anyone, are beyond the scope of this essay.   Similarly, the legal status of sperm donors in regards to Assisted Reproductive Technologies, is beyond the scope of this essay. 

Rather, this essay focuses on the conflict between marital fathers and biological fathers, where children are conceived by a man and a woman married to another man.  The AUPA sets out several presumptions regarding the paternity of minor children. These presumptions place the burden of proof on anyone wishing to challenge them. When competing with a presumed father by marriage, a biological father has a lower chance of a favorable outcome than the presumed father.  Once a biological father is denied the status of paternity, he most likely will have no access to his child at all, even through visitation.  Hence, these biological fathers are the class most affected by the decline of what would be considered “traditional marital family structures.”[7]  

Ala. Code § 26-17-204 sets out the presumption scheme for paternity under Alabama law.[8] The relevant parts of the stature read:

a) A man is presumed to be the father of a child if:

(1) he and the mother of the child are married to each other and the child is born during the marriage;

(2) he and the mother of the child were married to each other and the child is born within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce; . . .

(A) he has acknowledged his paternity of the child in writing, such writing being filed with the appropriate court or the Alabama Office of Vital Statistics; or

(B) with his consent, he is named as the child’s father on the child’s birth certificate; or

(C) he is otherwise obligated to support the child either under a written voluntary promise or by court order;

(5) while the child is under the age of majority, he receives the child into his home and openly holds out the child as his natural child or otherwise openly holds out the child as his natural child and establishes a significant parental relationship with the child by providing emotional and financial support for the child; or

(6) he legitimated the child in accordance with Chapter 11 of Title 26.

(b) A presumption of paternity established under this section may be rebutted only by an adjudication under Article 6. In the event two or more conflicting presumptions arise, that which is founded upon the weightier considerations of public policy and logic, as evidenced by the facts, shall control. The presumption of paternity is rebutted by a court decree establishing paternity of the child by another man.

Ala. Code § 26-17-607 governs actions to disprove parentage when there is already a presumed father[9]:

(A) Except as otherwise provided in subsection (b), a presumed father may bring an action to disprove paternity at any time. If the presumed father persists in his status as the legal father of a child, neither the mother nor any other individual may maintain an action to disprove paternity.

(B)  A presumption of paternity under this section may be rebutted in an appropriate action only by clear and convincing evidence. In the event that two or more conflicting presumptions arise, that which is founded upon the weightier considerations of public policy and logic, as evidenced by the facts, shall control. The presumption of paternity is rebutted by a court decree establishing paternity of the child by another.

Via these sections of the AUPA, unwed fathers are essentially estopped from filing paternity actions when a presumed father wishes to persist as a legal father. Significantly, a biological father has no standing to begin a paternity action if the current husband of the mother persists in his status as the legal father.[10] Even when the biological father meets one or more of the presumptions for paternity, the court will resolve these competing presumptions by determining which presumption is stronger, considering “public policy and logic evidenced by the facts”.[11] Ex Parte Presse provides the groundwork and practical guidance on how these questions are resolved in court. The Alabama Supreme Court held that “a man lacks standing to initiate a paternity action related to a child born during the mother’s marriage to another man if the mother’s husband persists in the presumption in favor of his paternity.”[12] In reaching said holding, the Court relied on the principle of preserving the sanctity of family relationships.[13] The Court further concluded that “the presumption in favor of the mother’s husband was ‘weightier’ than that in favor of the child’s biological father. . . .” [14]That conclusion rings hollow in my opinion. While the biological connection between father and son may not be the end all be all, it is the connection that defines the relationship itself. It is this biological tie that holds families together.

Currently, a biological father wishing to provide a stable environment along with financial and emotional support, does not have the standing to sue for paternity when a presumptive father persists in the presumption of paternity.[15]While not a guarantee of a successful legal outcome, these fathers should at the very least be given the chance to tell their story. The fact that a bona fide biological father can be ousted from filing a paternity action due to factors completely outside of his control does not advance the principle of preserving family relationships. Moreover, these presumptions have the potential to prevent or destroy what would otherwise be a literal family relationship. In fact, there are documented instances of just such a thing occurring. Even when a putative father produced a signed stipulation with the mother stating that he was the natural father (the stipulation was never filed but the Court was aware of it), held himself out for multiple years as the child’s natural father, and the child herself requested through her Guardian ad Litem that she be entitled to maintain her relationship with both, the presumptive (marital) father prevailed to the exclusion of the biological father.[16]

Still, the question remains: “how often do these circumstances manifest”? The answer is “more often than you would think”. Rates of infidelity, like rates of children born out of wedlock, are on the rise. Twenty percent of men and thirteen percent of women admit to having an affair while married.[17] Some of these women bear children outside of their marriage. Oftentimes men are not made aware that they are fathers within a timely manner to assert paternity or find themselves up against the aforementioned presumptions. These fathers should have the standing to assert paternity and be heard through a proper evidentiary hearing. As judicially permitted, these fathers should likewise be able to share in the responsibilities and the joys of paternity. They should not be at the mercy of the mother or any presumptive fathers when a meaningful father/child relationship is at stake.

It may well be in the best interest of the child to have a relationship with their natural father wherever possible. Alabama courts undermine their goal when outright denying putative fathers the standing to present evidence to the court about the child’s best interest and their ability to foster and promote a positive relationship with the child. One fundamental difficulty is the refusal of the law to contemplate a child having two legal fathers in their life, and hence (with the mother) more than two legal parents. Yet this failure of legal imagination may deny a child access to someone who is, in biological fact, a father of that child. 

The technical legal issue here revolves around standing. With the child’s best interests considered, a biological father that finds himself in competition with a presumptive father should not be permanently barred from pursuing paternity. A court may well find that in individual cases, it is not in the child’s best interest to be disrupted from the de facto family that has formed around them. Likewise, there are sure to be many cases where a biological father can have a positive impact on their child’s life. These opportunities are being stunted through the current unassailable status of a presumptive father persisting in their presumption. While the court must ultimately balance these interests, I do not believe that they are mutually exclusive. For example, a biological father may not be able to gain physical or legal custody in every situation, but may be entitled to visitation or other opportunites to build a relationship with the child. Of course, the very idea of visitation is halted by the lack of standing for a biological father to gain paternity. Without a court’s declaration of paternity, a biological father is no different to a stranger in the eyes of the law and certainly would not be entitled to any relief from the court.[18]

The AUPA’s section 607 regarding paternity bears significant difference to the Uniform Law Commission’s Uniform Parentage Act (“UPA”). Whereas the AUPA denies the putative father standing where there is a presumed father, the UPA’s section 607 states:

(a)   Except as otherwise provided in subsection (b), a proceeding brought by a presumed father, the mother, or another individual to adjudicate the parentage of a child having a presumed father must be commenced not later than two years after the birth of the child.

(b)   A proceeding seeking to disprove the father-child relationship between a child and the child’s presumed father may be maintained at any time if the court determines that: (1) the presumed father and the mother of the child neither cohabited nor engaged in sexual intercourse with each other during the probable time of conception; and (2) the presumed father never openly held out the child as his own. [19]

While the Alabama State Legislature could designate a class of fathers that the limitations of Ala. Code § 26-17-607 do not apply to, the current state of Alabama law allows the persistence of a presumed father’s paternity to eliminate standing to sue for a biological father.

While UPA’s section 607 provision is not perfect (I would limit the two conditions of subsection (b) to the first condition only), it is readily adaptable to the AUPA with minimal language and statutory hurdles. It gives a reasonable timeframe to commence an action and the conditions of maintaining it. Here, the UPA gives biological fathers wishing to assert paternity a statute of limitations that begins to run upon the child's birth and lasts for two years. The 2-year timeframe limits the father’s ability to assert paternity well after the child has developed connections within the current family unit. There is no sense in allowing a biological father to supersede a stable father-child relationship that a guardian has developed over many years.

             As I grew up and came to understand the meaning behind my father’s one-liners, I also came to appreciate them. There truly is no substitute for a father’s wisdom. While the circumstances that gave rise to the child’s birth may complicate the family relationship, it should not definitively and without recourse end it. Biological fathers should be able to submit themselves to a court's judgement in these matters. The current lack of standing under certain circumstances for these fathers does not allow them to even get though the courthouse door. While the child’s best interests may be the penultimate consideration, judges should be the ones to make these findings, not adverse parties.

[1] See Lena Edlund, The Role of Paternity Presumption and Custodial Rights for Understanding Marriage Patterns, 80 Economica 650, 667 n. 7 (2013).

[2] This article addresses paternity in the context of different-sex relationships.  There are significant legal issues related to parentage in same-sex relationships which would require additional analysis beyond the scope of this essay.

[3] Ala. Code § 26-17-631 (Rules for Adjudication of Paternity).

[4] Id.

[5] Unmarried Childbearing, https://www.cdc.gov/nchs/fastats/unmarried-childbearing.htm (last visited Aug. 27, 2024) (showing that 39.8% of live births in the United States were to unwed parents).

[6] Alabama, https://www.cdc.gov/nchs/pressroom/states/alabama/al.htm (last visited Aug. 27, 2024).

[7] Ala. Code § 26-17-631 (Rules for Adjudication of Paternity).

[8] Ala. Code § 26-17-204

[9] Ala. Code § 26-17-607 (emphasis added).

[10] Id.

[11] Ala. Code § 26-17-204.

[12] Ex parte Presse, 554 So. 2d 406 (Ala. 1989).

[13] Id.

[14] J.O.J. v. R.M., 205 So. 3d 726 (Ala. Civ. App. 2015) (emphasis added) (citing Ex Parte Presse’s holding).

[15] Ex Parte Presse, 554 So. 2d at 5.

[16] Michael H. v. Gerald D., 491 U.S. 110, 109 S. Ct. 2333 (1989) (holding that the power of a natural father to claim paternity of a child born into an existing marriage and to assert parental rights is not so deeply embedded in tradition as to be a fundamental right qualifying as a liberty interest under the Due Process Clause). 

[17] Infidelity: The Cold Hard Truth About Cheating, https://laintelligence.com/wp-content/uploads/2021/03/Infidelity-The-Cold-Hard-Truth-About-Cheating.jpg (last visited September 1st, 2024).

[18] Ala. Code § 26-17-607.

[19] Unif. Parentage Act § 607 (Unif. L. Comm’n 2002).