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To Test or not to Test-that is the Question (and how it relates to Justin Bieber)

I presume all my readers know that paternity is determined these days through DNA testing, also referred to as genetic testing. Parentage isn’t questioned in every family law case, but when it is alleged I am certainly glad for a testing mechanism which achieves near-absolute certainty in my cases (~99.999%, as the tests assert). I can’t imagine dealing with the levels of uncertainty from the days when parentage had to be proven through other means.

So with the recent news of Justin Bieber and his paternity suit, I thought I’d wax reminiscent on some of the history of parentage cases before addressing how it relates to the teen idol.

Over the years, parentage has been determined by a variety of means. Generally, prior to the advent of DNA testing, parenting cases were proven by putting on a circumstantial case and submitting said case to a jury for determination after an examination of the presentation of what were often many lewd and lascivious facts. Proof of intercourse would always be asserted, as well as proof of moral (or rather, immoral) character. Some cases came to be particularly renowned by their extremely provocative allegations. A case in point is Stubblefield v. Crawford (69 NM 313), where the assertion of facts included a young girl who was plied with alcohol by the putative father, a young man, and returned home in a state of dishevelment with her shirt partially unbuttoned, followed by claims of rape, claims of consent, and yet further claims of prior immorality. The young man eventually admitted the intercourse but denied the rape. The judge apparently found that all of these assertions were necessary for the jury to determine whether said rapist had in fact fathered the child. However, other judges would hold that statements from both sides indicating that intercourse had occurred were enough to prove parentage. Thank goodness again for 21st century science, which greatly reduces such vile exchanges before a jury.

In the early part of the last century in New Mexico and other states in the southwest, the law of the day was something known as the “general and notorious” rule. This was still law in New Mexico well into the 1970’s, by which time advanced blood testing techniques had taken precedence. The rule stated that in order for a child to receive inheritance from a parent, proof of parentage had to be general and notorious. General meant that the information was widely known. Notoriousmeant that it was talked about by the general public. In the case of one unfortunate Sam Haskew, trying to settle an inheritance claim with his father’s estate, the presence of only two witnesses 60 years after the fact of his birth proved insufficient for him to settle the claim in his favor. In re Haskew, 56 NM 506.

Another method of determining parentage by the courts included visual recognition. Visual recognition was used as recently as 1972 in jury trials to determine parentage. In the case of Glascock v. Anderson, 83 NM 725, the child was placed literally in front of a jury to be examined for his visual resemblance to the man the mother was alleging to be the child’s father. Fortunately this method has since been replaced by more accurate and less subjective means. Even more importantly, juries no longer decide family law cases.

You may ask what role a birth certificate plays in verifying one’s parentage? In practice is only another piece to the parentage puzzle. Any mother can literally put anyone’s name on a birth certificate in a parentage case. So the presence of one certain male’s name is proof, yes, but not irrefutable proof of parentage in the overall scheme.

Courts actually began some blood testing as early as the 1920’s. However, early blood testing was only able to exclude 30% of the population. That meant 70% of the population could still have fathered the child in question. By the 1930’s serum testing was being utilized which excluded up to 40% of the male population, and by the 1970’s HLA testing, a testing of proteins in the body, was able to exclude 80% of the male population. All of this eventually became supplanted by the first accurate DNA tests, which were seen in the early 1980’s.

So how does this all relate to Mr. Justin Bieber? In the event you don’t peruse People Magazine’s website on a daily basis (as I do) to keep yourself updated on all the day’s “important” news, you may not know that the now-17-year old singer has been named in a paternity suit. According to the lawsuit, Mr. Bieber fathered a child, currently aged four-months old while on his last tour and allegedly outside the supervision of his security posse. According to his publicists, this is very damaging to a very young and very rich young man who has relied quite heavily on a good-boy persona to bolster his record sales.

The paternity suit was filed by a young woman named Mariah Yeater, currently represented by former White House attorney Jeffrey Levings. “What? Former White Counsel taking a paternity case?” you say? Levings has defended his representation by portraying Yeater as a victim as well as the assertion that everyone is entitled to counsel. He is requesting DNA testing to prove the Yeater’s claims which will, they presumably hope, reward her with some portion of Bieber’s future earnings.

In his defense against Yeater’s claims, Bieber asserts he has never even met Yeater, was never alone with her and certainly never had sex with her. He is saying in effect, “I never had sex with that woman.” (We’ve never heard THAT one before). As previously stated, his security team claims Bieber is never left alone. On the other hand, Yeater claims she has never had intercourse with anyone save for Bieber. Except, apparently, that she previously named two other men as the child’s father prior to Bieber. Apparently those claims did not pan out. (I must confess to being personally swayed, on occasion, towards “immoral behavior” arguments).

Certain circles among Bieber’s fans are calling outright for the death of Yeater. Less extreme, but still considerably punitive, are those Bieber supporters calling for Yeater’s arrest on charges of statutory rape, as she was more than three years older that Bieber at the time of the alleged event, which constitutes a crime in the particular state where the event allegedly transpired.

Still, Yeater claims she has irrefutable proof that she and Bieber had unprotected intercourse that evening. This could be her effort at a “triple dog dare” in order to compel Bieber to agree to DNA testing. I suppose in this day and age, it may mean she has pictorial proof. People seem to forget how easy it is, with our smart phones, etc, to keep one another under perpetual threats of recording and surveillance even in what we hope are our more private moments.

Why do I even care about this story? I find it interesting as a study in family law, particularly with respect to parentage cases. Here we are in the 21st century with reliable scientific means to determine parentage, and yet the case is being tried in the media along some pre-1980 methods we discussed earlier. Thankfully, if and when this case goes to court, post-1980 methods will be utilized to prove or disprove Yeater’s claims. But for now, the older methods are what are going to sell more magazines.

The bigger question is why Bieber hasn’t already agreed to put the debate to rest by taking the all-revealing DNA test? Should he have to? I agree with the argument Bieber’s camp is making via the media that the circumstantial evidence should prevail. There is no evidence linking these two young people together and other witnesses can verify Bieber was never alone when everything supposedly occurred. In place of DNA testing, genetic experts will possibly be called to testify the child looks nothing like the father. Still other witnesses will demean Yeater’s morality. These are exactly the arguments put forth for the better part of the previous century.

In the end a judge will likely force Bieber to submit his DNA for genetic testing. I don’t think the judge will care a hill of beans for the Bieber camp assertions or those of Yeater. The court has the duty to uphold the child’s best interests. Remember that there is a child caught up in all this, one who deserves to know the identity of, and be supported by, her father.

And one way or another, there is a father.

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