Is Love or Biology the Tie That Binds a Dad to Kids?

California court says a father doesn't have to support children from wife's affair

It's a story bizarre enough to headline Ricki Lake's TV talk show. But instead it's a case that challenges hundreds of years of legal tradition and raises a vexing question about the very nature of fatherhood: Should a husband be financially responsible for raising the children from his wife's extramarital affair?

The case revolves around a recent California court decision involving David Reese, an Orange county contractor, who raised two children in his 17-year marriage to Rebecca.

She filed for divorce in 1993 and Mr. Reese was ordered to pay $982 a month in child support. But a year after that, Rebecca informed David the two children had been sired by her lover, a grocery clerk.

When David asked a judge for permission to end child support, the judge ordered a blood test.

Even though the test proved the children weren't David's, the judge did not terminate the child support obligations, owing to the longstanding California law - also currently binding in most states - known as "conclusive presumption."

"The practice traces back to colonial England and holds irrefutably that whoever is legally married to a woman when she gave birth, is the child's legal father," says Max Goodman, a professor of family law at Southwestern School of Law in Los Angeles.

Following this, state courts have long ruled that the legal father is the one who provides care and nurturing, not necessarily the one who is the biological father.

Bristling at the judge's ruling, David sued Rebecca, whose last name hasn't been released by the court, and the children's alleged biological father. David demanded the $200,000 spent in raising the children and $2 million in emotional distress.

A state appeals court overturned the lower court's order that David continue child support. The ruling turned on yet another state law concerning blood tests - holding that if the court ordered the test, it is obliged to follow the results.

That appellate court decision has ignited a firestorm.

Some observers feel the decision is good because it allows scientific advances that can clarify paternity to replace the outdated assumptions of previous laws - that no one could really tell who the real father was.

"Now with modern technology that assures us who the real father is, it seems to me terribly unfair for a man to pay child support because his wife had an affair," says Erwin Chemerinsky, professor of law at the University of Southern California. "By any fair standard, the real [biological] father should be responsible for the kids."

Others say such attitudes undermine the bond that can occur between parents and kids, no matter who the biological father is.

"Though this might provide a measure of freedom for the man whose wife has had an affair and been dishonest with him, it could seriously hurt the children emotionally and economically," says Jill Robbins, a state commissioner of family law. "How could a man who gave his life and soul to two children suddenly try to avoid financial responsibility?"

Because the appellate court's decision is so volatile, some of the court justices asked the state legislature to revise current law so judges can exert some discretion when determining financial and other obligations - regardless of blood test results.

Other lawyers have taken it upon themselves to ask the state Supreme Court to "depublish," or make a ruling that clarifies or throws out the appellate court's ruling.

Regardless of if and when legislators take action, the Supreme Court could decide to depublish, or it could refuse to rule on the case, allowing the lower court's ruling to be cited in similar California cases.

Experts say that could influence other states too. "Whatever California does is precedent-setting, not legally, but just in setting trends at the cutting edge of new law," says Goodman.

"Because of the increased prevalence of nontraditional parenting arrangements in our society," says Robert Pugsley, a law professor at Southwestern University School of Law, "this is something [California's Supreme Court] needs to clarify right away."

Meanwhile, David and Rebecca have settled out of court. He agreed to drop his suit, while she will stop seeking child support. But the question they raised remains.