YOUR LEGAL RIGHTS | Can a man legally be assumed to be the biological father of a child — even if he is not?

One of the most fascinating aspects of studying the law — and I remain a student more than 30 years after earning my Juris Doctorate — is exploring the history of centuries-old legal principles that remain relevant today.

The concept of "presumed paternity" falls into that category and is the topic of Professor Betras' Mahoning Matters lecture for this week.

Pay attention class: Not because there will be a quiz at the end, but because this doctrine and the ever-evolving body of law that surrounds it impacts millions of men, women and children each year.

At the outset, we should define what the heck we are talking about. Under the "presumed paternity" doctrine, a man who meets certain criteria established by law is assumed to be the biological father of a child — even if he is not.

In Ohio and most other states, the marital status of the parents is one of the primary factors used to determine paternity. ORC Section 3111.03 reads in part: "A man is presumed to be the natural father of a child if he and the child's mother are or have been married to each other, and the child is born during the marriage or is born within three hundred days after the marriage is terminated by death, annulment, divorce, or dissolution or after the man and the child's mother separate pursuant to a separation agreement."

Like much of American jurisprudence, presumed paternity is rooted in centuries-old English common law. As anyone who has watched Anne Boleyn's severed head tumble into a basket in the many films made about Henry VIII knows, paternity was serious business in the 16th century. Because paternity was critical to the succession of monarchs and the inheritance of property and because being labeled a "bastard" had catastrophic consequences, the presumption of legitimacy was a fundamental principle of the law.

With few exceptions, that presumption could not be rebutted. If a man married to a woman when a child was born was capable of procreation and had "access" for the nine months prior to birth, he was the child's father. Period.

That strict standard made sense in the 1500s when there was no scientific way to prove paternity. The presumption of legitimacy protected children and families and promoted peace and tranquillity in the realm — unless you happened to be one of Henry's six wives.

While the presumption of paternity still applies to married couples, technology, in the form of DNA testing, has revolutionized this area of the law. Husbands can use genetic testing to prove they are not the father of their wife's child or children and men who believe they are the father of a child born to a woman married to someone else can use it to claim paternity.

In either instance, while the truth may be revealed, the peace and harmony fostered by the presumption of legitimacy will almost certainly be disrupted, if not destroyed.

Might make one wonder if the 1500s were actually the good old days ...

— Attorney David Betras, a senior partner at Betras, Kopp & Harshman LLC., directs the firm's non-litigation activities and practices criminal defense law in both the state and federal courts. He has practiced law for 35 years. Have a legal question you'd like answered here? Send it to news@mahoningmatters.com.

This story was originally published May 28, 2021 at 4:36 AM with the headline "YOUR LEGAL RIGHTS | Can a man legally be assumed to be the biological father of a child — even if he is not?."