Regarding Amy Wax’s discussion of abortion and child support: As long as the law guarantees to a woman the absolute, unqualified and unconditional right, regardless of age or status, to give birth anonymously (as some 400 French women do every year, down from 4,000 in 1947), thereby disclaiming all responsibility for her child, it is difficult to justify imposing responsibility on biological fathers.
Defenders of traditional marriage, in particular, should see the connection between the two fundamental principles of filiation, “the child conceived or born in marriage has the husband for father” and its counterpart, “the investigation of paternity is forbidden.”
Parental acknowledgement, of course, has always been an option. I do not know the figures for the United States, but in France, according to the INED, births outside marriage represented 44 percent of all births, more than half (56 percent) of the births of first children, a third of the births of second children, and almost a quarter of the births of third children.
However, 85 percent of children under fifteen lived with both their parents. Some 82 percent of children born outside marriage were recognized by their father within one month (compared with only a third of children born outside marriage in 1965 and 1970), and 92 percent were ultimately recognized. Some 94 percent of babies recognized by their father within a month were living at that time with both their parents, whereas the proportion was only about 80 percent in the late 1960s and early 1970s. Lastly, only 15,000 children a year are expected to remain without paternal recognition, about as many as in the 1960s, when fewer than 6 percent of births took place outside marriage.
While the presumption of paternity constitutes the essence of marriage, children born out of wedlock are nevertheless very widely and promptly acknowledged by their parents.
The family is increasingly centred on the child. In the face of changes in family life and conjugal relations in particular, the child appears to be the only enduring reality. Whereas in the past, marriage was the prerequisite for the formation of a family, today the prerequisite is essentially the presence of children. As Martine Segalen told the Pécresse Commission (2006), “Studies show that when a member of a family lives with a partner outside marriage, that person is considered to belong to the family only from the birth of a child on.”
In the increasingly frequent absence of marriage, therefore, it is indeed the child that makes the family. In fact, by making the relationship between his parents irreversible, the child brings each of them into the other’s family, something a childless common-law relationship does not.
December 18th, 2012 | 10:22 am
Defenders of traditional marriage, in particular, should see the connection between the two fundamental principles of filiation, “the child conceived or born in marriage has the husband for father” and its counterpart, “the investigation of paternity is forbidden.”
Been there done this multiple times now, are you Michael PS from the comment boards? While I won’t speak for French law, the fact is in the US the above assertions have never been the law. A husband could indeed challenge the assumption of paternity. Before the era of DNA testing, such a challenge required iron-clad proof the husband could not be the biological father. A typical example might be the husband who is away at sea or at war for a year and returns to find his wife pregnant. It is also possible for paternity to be challenged in law. A man can assert that the child a married woman has just had is in fact his.
Filiation is only a practical doctrine. In the pre-DNA era, courts could not afford to have to handle numerous spurious cases of deadbeat husbands trying to dodge child support by claiming their wives were unfaithful. Hence filiation basically makes it very difficult to challenge paternity unless you have really solid evidence, not simply gossip or a ‘hunch’.
Today courts allow one to challenge paternity provided it does not harm the child. This usually means you have to mount your challenge early, if you act as the child’s father then you will remain so legally even if you discover years later that you weren’t biologically.
December 24th, 2012 | 12:18 pm
Somehow I think Michael’s response is more about how the presence of children in a “relationship” are necessary to form a “family.” Once paternity is accepted, the child binds the parents to each other through the life of the child. The lesser issue of legal paternity is raised for what reason? This article is less about child support than it is about how the presence of children define the family, even those relationships in which the mother and father are not bound by marriage in the traditional sense. This is good news!
Links
Blogs
Find Us
Contact