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The presumption of paternity (and the rebuttal thereof)

Common-law history

In the United States, common law (or “court made” law) has long recognized that establishing paternity of children is of utmost importance, to protect inheritance and child support rights. It therefore established a “marital paternity presumption,” under which a child who is born during marriage is considered the husband’s offspring. As a result, a child who is born resulting from an adulterous affair of the wife is still recognized as a legitimate child.

This rule developed when there were no medical tests in existence to prove paternity. A husband was allowed to rebut marital presumption in only two ways: Impotence and his being absent from the country.

Alabama statutory and case law

Nowadays, the presumption of paternity has been codified into statutory form by all the states. As of 2009, Alabama’s version of the Uniform Parentage Act provides, in part, that: “A man is presumed to be the father of a child if . . . he and the mother of the child were married to each other and the child is born within 300 days after the marriage is terminated[.]” It also allows the presumption of paternity to be rebutted by specific statutory proceedings to adjudicate parentage.

In the 2012 case of D.J.G. v. F.E.G., the appellate court decided that the husband was not the biological father of his wife’s oldest child; DNA testing to the contrary established clear and convincing evidence which met the statute’s standard rebutting the presumption. Thus, the husband was not required to pay child support. The law on genetic testing, then, seems to be clear. But how about the common-law reasons to rebut the marital presumption, namely impotence and absence from the country?

While there are no reported cases on impotence, there is an unusual 1993 case which seems to reverse the modern legal trend regarding paternity, namely Tierce v. Ellis. This decision revolved around a man named William Tierce who returned from war in December 1945 and discovered that his wife was pregnant. He was granted a divorce on the grounds of adultery in February 1946. In April 1946, Dennis Tierce was born, William Tierce being mistakenly listed as father on Dennis’s birth certificate. William died in 1972 and Dennis was listed as William’s son. This paternity listing was challenged and the trial court ruled it was impossible that Dennis was William’s biological son.

The Supreme Court reversed, saying that, under the Alabama statute, a husband is the presumed father of any child born within 300 days of divorce. Also, the court said that because William did not attempt to procure a paternity judgment while going through his divorce proceedings, the marital presumption of paternity could not now be rebutted. Therefore, Dennis, the “impossible heir,” could share in the estate.

The good news is that the facts of the Tierce decision are so unusual they are not likely to be repeated.


If you ever find yourself in the situation where a child is born of your marriage, but paternity by the husband is disputed, you should immediately contact an experienced family law attorney, who will investigate the facts of your case in order to determine what legal proceedings might need to be instituted to conclusively establish paternity.