Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Sunday, September 1, 2013

Carbone and Cahn: The Past, Present and Future of the Marital Presumption

June Carbone (University of Minnesota Law School) and Naomi Cahn (George Washington University Law School) have published The Past, Present and Future of the Marital Presumption in THE INTERNATIONAL SURVEY OF FAMILY LAW, 387‐398 (Bill Atkin & Fareda Banda eds., 2013).  Here is the abstract: 

The marital presumption is deeply rooted in Anglo-American law: a husband and wife are assumed to be the father and mother of any child born during their marriage. With the advent of sophisticated genetic testing, no-fault divorce and changing family structures, however, American states are now questioning the continued validity of the presumption. Paternity can be determined with certainty and much of the stigma associated with the circumstances of a child’s birth has disappeared. In the face of these changes, the presumption has been exposed as a legal fiction without a simple meaning, even as it continues to confer parenthood: in all states, married couples, gay or straight, who walk out of the hospital with a child are legal parents. This article explores how states struggle to reconcile the strong public policies supporting marriage with new knowledge about biological facts.


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