Presumption of Legitimacy: The Putative Father and His Rights

A putative father is either asserting paternity or contesting his parentage of a child in the absence of a presumption of determined legal status. Under state and federal law, the putative father has certain rights, but is very restricted in how he may assert those rights. Generally, when a child is born of the marriage, there is a presumption that the husband is the legal father, and paternity shall not be challenged as a matter of law. The purpose of this presumption is to protect children from the stigma of illegitimacy, which would deprive them of their rights of inheritance and succession. This presumption is "one of the strongest and most pervasive known to the law." In re Findlay, 428 N.Y.S. 2d 865 (1980). G.L. c. 209C, Section 5(a) specifically does not permit a paternity action to be brought by a putative father. However, this does not take away the right of the putative father to bring a complaint to establish paternity under the general equity jurisdiction of the probate and family court under G.L. c. 209C, Section 6. To do so, The court must examine the relationship as a whole with the child, taking into account such factors as emotional bonds, economic support, custody of the child, personal association, putative father's commitment to attending to the child's needs, as well as any other factors that bear on the nature of the alleged parent-child relationship. In addition to the above, the putative father must develop a solid legal and factual record, set forth in a sworn, verified complaint, or an affidavit to meet the high standard to rebut the presumption of legitimacy, which is proof beyond a reasonable doubt. At the end of the day, the decision must be what is in the best interest of the child.

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