Tuesday, September 29, 2015

In Re Emma B. (Cal. Ct. App. - Sept. 29, 2015)

I wonder what the long-term consequences are of decisions like this one.

California's complicated paternity and dependency statutes are motivated by sound principles.  We want parents to have parental rights even in "nontraditional" settings, and even when the biological basis for fatherhood is absent.  So, for example, we declare that when a husband is married to a wife, and when wife has a child during the marriage, and when the husband takes the child into his home and raises him as his own, we don't deprive the father of parental rights even if it turns out that the child was biologically fathered by a different person.  Makes sense.

But here, we're dealing with those same facts, but in a different context.  And context matters.

Here, Father and Mother were married in 2011, but Father was deployed to the Persian Gulf in August of 2103.  Mother apparently did not waste much time, since when Father returned home from deployment in April of 2014, he discovered that Mother was seven months pregnant.  Something that doesn't happen from even the most intimate of overseas calls on Skype.

So Mother's had an affair and gotten pregnant, but the biological father (Steven) wants nothing whatsoever to do with the child.  So what's Father to do?  Ditch both his wife and the unborn child, leaving them to their own devices?  Sounds harsh.  So Father decides to stick with Mother for at least the time being, and for a couple of months, he tries to step up to the plate, despite the fact he knows that the child isn't his.  He's present at the birth, puts the child on his military health insurance, etc.

But Mother's a mess.  She tests positive for opiates at birth, which are detected in the newborn kid.  Then, during the next several months, Mother's found unconscious, under the influence of drugs, while the baby's in her care.  Not good.  So San Diego Health and Human Services grabs the kid.

At this point, Father's done.  He plans to divorce Mother.  He doesn't want to raise the kid because she's not his daughter.  Plus he's moving out of state in December of 2014 due to a military transfer.

So he asks for paternity testing to prove, legally, what we all already know -- that he's not the kid's father.

But the trial court says no dice.  And the Court of Appeal affirms.

It'd be one thing, Justice Huffman holds, if Father had ditched mother immediately.  Then his lack of a biological connection to the child would be relevant, and he could likely demand genetic testing to prove he hasn't the father.  But since he wasn't a total jerk at the outset -- or, as Justice Huffman puts it more artfully, because "Michael was married to Mother at the time of Emma's birth, signed Emma's birth certificate, financially supported her, put her on his military insurance, and for a limited period, accepted her into his home," he loses the appeal.  No right to genetic testing.  Law doesn't care that you're not the actual father.  You're stuck.

You can imagine why the law might well want to allow non-biological connections in such settings.  But in the long term, once this legal regime becomes well-known, I wonder if it doesn't result in a suboptimal world -- one in which other similarly-situated Michaels of this world decide that in order to avoid precisely what our real-world Michael had to endure that they're better off being jerks from the get go.  Abandoning Mother and unborn infant at Day One, leaving them off their insurance, and not taking them into their home for even a second.

That's a better world?  That's what we want to incentivize?