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Grand Rapids Press

DNA testing upsets parentage laws

The Grand Rapids Press, By Doug Guthrie, February 29, 2004

Modern science is wreaking havoc on an age-old paternity rule.

Two key court decisions on Kent County cases have state lawmakers considering the growing conflict between the certainty of DNA testing and the practicality of a decision issued by an English judge more than 200 years ago.

While courts today routinely rely on DNA testing in all other paternity disputes, state law sometimes referred to as the Bastardy Statute or by its British common law origin, Lord Mansfield's Rule, defines a child born into a marriage to be a product of that marriage.

The husband of the mother is legally bound to support the child -- wanted or not -- as though it were his own.

Meanwhile, the biological father has no legal standing. He cannot be held responsible for the child's welfare as long as the marriage remains intact, and he has no legal claim even to visit his child.

At issue is whether the biological father should be held responsible for a child's support, or whether the centuries-old court rule meant to protect the sanctity of marriage should remain in effect.

"This is one of the most familiar rules of law. It is ancient," said Kristine Mullendore, a professor of legal studies at Grand Valley State University and a former assistant Kent County prosecutor.

It is considered essential to holding some families together, Mullendore said, but warned science and social changes may have moved beyond ancient logic.

"It is an area where something probably should be done," she said. "However, this must be done by the Legislature, not the courts."

Sen. Kenneth Sikkema, R-Grandville, who plans to talk with other legislators about the issue and the Kent County cases, said the problem points out "the demon of modern science" and the often unwelcome disruptions it can bring to society.

Mansfield's rule was affirmed last month by the state Supreme Court in a case involving a Rockford man who wanted to support and visit his biological daughter in Grand Rapids. The state's high court supported the mother and her husband's rejection of the biological father's interference in their family.

Now, the issue is alive again in Kent County Family Court, where a biological father claims he was wrongfully ordered to pay $77 per week to support his child born to a married woman.

'Things happened'

Brendon Keith is Anthony Reynolds' son. DNA comparisons have proven the 20-month-old Walker boy's paternity to within a 99.9 percent certainty. Reynolds met Amy Cook-Keith at a party in July 2002. Cook-Keith was and remains married to Donald Keith.

"I met a woman and things happened," Reynolds said. "They were married. I was a single guy. As far as I knew, everything was taken care of, but that's a moot point. Wrong or right, she got pregnant."

The boy was born on June 11, 2002, legally recognized as Amy Cook-Keith's only child. One month later, Cook-Keith asked the court to order Reynolds to pay child support.

"She told me and I didn't believe her," Reynolds said. " Well, people said the test proves I'm the father and they were making me pay. They said I had to pay."

Two days before Christmas 2002, Reynolds was ordered to pay Cook-Keith, plus an amount to cover the period dating back to the child's birth. The order was signed by retired Ionia/Montcalm County Circuit Judge James Nichols, who was filling in that day for Kent County Circuit Judge Paul Sullivan.

Amy Cook-Keith and her husband, Donald Keith, have been married six years. She said they separated for nearly a year, when she met Reynolds. She said they reunited when she was pregnant.

"My husband told me he'd take care of me, emotionally, but not financially," Cook-Keith said. "He loves the baby now. We've all been together for almost two years now, but he doesn't buy his diapers or his food. We're not trying to stick a knife into this man and bleed him. I need the support to raise his child."

Reynolds is an auto mechanic who lives on Grand Rapids' Northeast Side. He has two children from a previous marriage, including custody of a teenage daughter.

Reynolds was granted visitation by the court, but he said he felt uncomfortable when he went to Cook-Keith's home, especially when greeted at the door by her husband.

"It was a family. It wasn't like I was watching a man who was mad about this child," Reynolds said. "I was very leery, but he was very friendly, very much a father. I'm the one who felt out of place.

"When a woman has a baby and decides to let it out for adoption instead of having an abortion, that's considered a good thing. I'm not doing anything different. This is a family, and they appeared to me to be a good family. He has a mother and a father and their love."

In the Rockford case, Lord Mansfield's Rule shielded the family. Cook-Keith said in her case, it could split her marriage if it is applied.

"If it's a law to protect the marriage, it can go the opposite way, too," Cook-Keith said. "This could break our marriage. My husband isn't happy. He shouldn't have to support his (Reynolds's) child.

"The state is saying my son is not allowed to have a biological father. What if he needed a blood transfusion or a transplant?"

Kenneth Sanders, the lawyer who represented the Rockford man and lost, later was hired by Reynolds to argue the opposite side of Lord Mansfield's Rule.

"It can't be both ways," Sanders said. "The Supreme Court has said the law won't allow a child to have two fathers."

Reynolds's case now is under consideration by Kent County Family Court Judge Steven Pestka, who is expected to issue an opinion soon.

Who is legally a father?

Lord William Murray Mansfield served from 1756 as chief justice of the King's Bench until his retirement at 80 in 1788. His decisions expanded English common law, which remains the basis of law in the United States. He also provided the groundwork for rulings that led to the abolition of slavery in the British empire.

State Rep. William Van Regenmorter, R-Hudsonville, chairman of the House Committee on Criminal Justice, said he and others are researching whether the law should or can be modernized without damaging long-held protections.

Routine acceptance of DNA evidence as proof of the identity of a child's father has become common practice in circuit courts such as Kent County's where dozens of paternity cases are filed every week. State law requires county prosecutors to legally determine the parentage of a child whose mother has applied for public benefits. The father then is held financially responsible by court order.

"Perhaps the definition of father within the law is the point to be examined," Van Regenmorter said. "But, it may conflict with the issue of intact families, which always should be held in the highest regard."

Still, considering the court and the public's now-routine trust in DNA testing to solve other identity questions, Van Regenmorter said there may be a way to assign responsibility to a biological father while preserving the intact family.

"It's a dilemma, and obviously a dilemma that will occur again," he said. "It does fly in the face of modern convention, but I'm not sure we will find easy answers."

In the case of the Rockford father, a DNA test showed Scott Kaiser fathered the daughter of his neighbor's wife. Although the woman at first denied his parentage, she and her husband later approached Kaiser for support. After a DNA test confirmed Kaiser was the father, he paid weekly support to the family and received visitation rights.

A long court battle ensued when the mother changed her mind about Kaiser's involvement with the now-5-year-old girl. Although his claims were rejected at the circuit and ultimately by Supreme Court, a panel of judges from the Michigan Court of Appeals briefly sided with Kaiser.

The judges suggested in their opinion that the Legislature should consider updating the law to reflect modern standards of proving parentage.

Grand Rapids-based Appeals Judge David Sawyer wrote in the Kaiser case, "Once there is establishment of an actual father by the court, there simply is no longer basis for there to be a presumed father."

Appeals Judge Bill Schuette also wrote about Kaiser that this was not a case of a "stray actor, and unidentified shadowy figure." He said the DNA test proved this was the girl's father.

Rep. Joanne Voorhees, R-Wyoming, who has sponsored one of several bills pending in the state House aimed at curbing divorce, said she too wants to examine the conflict of Lord Mansfield's Rule.

"My first thought is to protect the child in this," Voorhees said. "But it sounds like this has become a complex issue."

Is a child better served by a financially struggling intact family or a support-paying biological father? Can an intact family survive the influence of two fathers or should Lord Mansfield's solution continue his effort to prevent, "children of no one."

Changing social mores

Mansfield's rule, issued in 1785, avoided social concerns of the day, such as the stigma created by the "bastardization of children." It prevented husbands and wives being forced to testify in court about infidelity or a lack of sexual intercourse between spouses at the time of conception.

Van Regenmorter noted that many of those social rationales have eroded since Mansfield voiced the concept in the name of "decency, morality and policy."

"I think 200 years ago, society didn't want to go there," Van Regenmorter said. "There still is a sensitivity to family issues, but people certainly seem more willing to air these issues today. This is a question that before DNA testing, no one could have ever imagined."

Said Sanders: "We have legislators trying to hold marriages together by passing laws that will force people to be nice to each other. This one is so much easier. We don't even have to draw an infant's blood to determine parentage. A simple swab inside the cheek and we know."

If the marriage dissolves, Reynolds then could be held responsible for his son's support.

And, as affirmed by the Court of Appeals earlier this month in another Kent County case, the son himself might be able to file suit against his father when he reaches age 18.

Cook-Keith's former lawyer, Joan Irons, said in this case, Mansfield's rule could work in reverse.

Irons advised her client she will lose the support payment under the current law. Irons no longer represents Cook-Keith, who didn't respond to Reynolds' complaints in court.

"Unless Amy gets a divorce and admits in the judgment that her ex-husband isn't the dad, she won't get any support from the biological father," Irons said. "This could break up an intact family because the husband might say I would be willing to stay married if the real father shoulder his support obligation. Unfortunately, things get down to the dollar in many cases. Money is a huge pressure in relationships."

Irons said the glue that held the Bastardy Statute together more than 200 years ago was the difficulty of getting a divorce. Michigan's no-fault divorce law makes it far easier to avoid the legal responsibility Lord Mansfield meant to impose.

"There must be ways to alter this law and keep families intact, because it can just as easily cause a family to fall apart," Irons said.

2004 Grand Rapids Press.

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