NY Woman Challenges Presumption of Paternity in Marital Births

One of the best (to my mind) parts of the proposed Alabama law that would create equally shared parenting in that state comes in its preamble.  It says that the bill seeks to bring custody law “into line with current social science” on the importance of both parents to the wellbeing of children.  What a concept – actually trying to fit the law on parenting to the great mountain of sociology and psychology on parents and children.

That of course raises a question that so many of us advocates for family court reform have been shouting for years – why do family court practices bear so little resemblance to what we know about the value of fathers to children?  

As but one example, Canadian researcher Paul Millar points out that there is literally no evidence that children’s outcomes are enhanced by maternal custody post-divorce.  Indeed, there’s some evidence that paternal custody might be better.  And yet, in some 90% of Canadian custody cases, Mom becomes the primary custodian.

Put simply, the almost total disconnect between the science of child welfare and the practices of family courts suffuses the whole thing with an air of unreality.  That it’s all done in the name of the ‘best interests of the child,’ makes it actually surreal.

This article brings to mind another example (New York Times, 4/17/11).

Up until very recently – within about 25 years – there was no scientifically accurate way to prove paternity.  Blood typing could clearly exclude a man as the father of a child and it could attest to the possibility that he was.  But there was simply no way to certainly establish paternity.

Given that, the law long ago adopted the presumption that any child born to a married woman was fathered by her husband.  Since we could rarely prove false paternity, the law short-circuited the whole process and simply established a rule.  Husbands were considered the fathers of their wives’ children unless they could prove otherwise.

That was, if not an entirely fair result, at least a workable one.

But given the development of genetic testing, the presumption of paternity is entirely unnecessary.  It retains all the unfairness of the outdated rule but has none of its raison d’être – in short, the worst of both worlds.

And yet, in the face of a scientifically compelling reason for abandoning the presumption, it hangs doggedly on.  As with their wholesale refusal to grant equal custody to fit parents, family courts are stuck in the past.  We now have the easy ability to establish paternity; we just don’t use it.

The Times article tells of an attempt in New York State to dismantle the presumption of marital paternity.  And since the world of parental rights and duties is so strange, it shouldn’t surprise us to learn that the effort comes not from a defrauded dad, but a woman, and it has nothing to do with parental rights, but with money.

Nina Montepagani was born in New York in 1952 to two Italian immigrants.  Her mother died of cancer when she was about seven years old and she was raised by her father, Giuseppe Viola, whom she loves dearly. 

Giuseppe died in 1987, at the age of 95. She said she had seen him every day. “It was just a joy to me to sit next to him and watch TV,’ she said.


Throughout her life there were tantalizing suggestions that Viola might not be her dad.  That’s because her mother may or may not have had a brief affair with a Dr. Sebastiano Raeli in Rome before coming to the United States.  It was only eight months later that little Nina was born.

And ever after, a strange but persistent connection to Raeli existed between him and Nina, him and Giuseppe and him and her mother.  It was a connection that no one wanted to discuss, but brought floods of tears whenever the subject came up.

Now, Giuseppe Viola was an illiterate laborer – a fine father, but poor.  Dr. Raeli however was a different story.  Over the years he became somewhat of a hotel magnate, amassing nine properties in Rome.  When he died, he and his wife left it all – some $100 million worth – to an Italian university.

But Italian law forbids such a transfer if the deceased had one or more children.  Half of his estate must go to the offspring and not surprisingly, it is that $50 million that Nina Montepagani wants.

She filed suit some years ago in Italy, but the suit was dismissed.  The Raelis said they had no children, Nina was born while Giuseppe was married and Nina’s birth certificate says that Giuseppe Viola is her father.  That creates the presumption of paternity in New York that the Italian court is required to honor.

End of story, right?  Wrong.

Nina Montepagani has sued the State of New York to remove Giuseppe Viola’s name from her birth certificate.  Exactly what effect that would have on the Italian court, I have no idea.  After all, the presumption of paternity arises less from the birth certificate than from the fact that the birth occurred while Giuseppe and Anna (Nina’s mother) were married, and that is an undeniable fact.

Still, it’s impossible to ignore the fact that, as in all cases of potential paternity fraud, there’s now a simple solution – a solution that didn’t exist back in 1952 – DNA testing.  If you’re Nina Montepagani, it must seem a trifle odd that, with the answer to the vital question of paternity within easy reach, courts should rely on a legal fiction that has no legitimate place in 21st century jurisprudence.

Indeed, with $50 million on the line, I’d guess it’s more than just a trifle odd.

And, although most men who face the same perversity of family law in paternity fraud cases don’t have that much money riding on the outcome, they do have real relationships with real children and real mothers at stake.  So in some way, Nina Montepagani can probably feel their pain.  She’s stuck in the same weird, anachronistic world they inhabit and surely it feels outrageous to her in the same way.  We can all know the truth, but courts and laws won’t let us.  They prefer fiction.

So maybe it wouldn’t be so odd after all if New York changed its presumption of paternity not because of a wronged father but because of his daughter, and not because of the loss of a child but because of money.

Stranger things have happened – in life and in fiction.

Thanks to Jim for the heads-up.

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