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This "marital presumption" permitted courts to assume a set of biological facts in the name of preserving the sanctity and stability of what was assumed to be the cornerstone of a healthy society — the traditional family of husband, wife and children. In the last decades of the 20th century, science developed paternity testing with results approaching certainty. Despite the availability of DNA testing, the marital presumption is still used in many courtrooms to answer the question of who is the legal father. What one scholar has called "the law's struggle to preserve the fiction of an older moral order" has become increasingly inadequate in defining today's father.

For the record, not all fathers in these cases are innocent victims. They may have consented to paternity to solidify a relationship with the child's mother or to facilitate receipt of welfare benefits. Whatever the motive for agreeing to paternity without DNA tests, that decision often prevents further investigation or legal determination of paternity until too late for the child to establish a relationship with the biological father.

While the statutes of limitations approach — which defines fatherhood by the number of years a paternity order has been in place — is generally better for children, it ignores the child's definition of father. In some situations, letting the man "off the hook" will make sense for the child. Perhaps the child has no emotional bond with — or even knowledge of — the man whose name is on the paternity order. Maybe it's not too late to find the biological father and develop or legally recognize a relationship with that man or a stepfather or another man who has assumed the role of father in a child's life.



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