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16 U. Dayton L. Rev. 497 (1990-1991)
Uniform Parentage Act: Ohio Recognizes Genetic Testing's Validity to Rebut the Presumption That the Natural Mother's Husband Is Not the Father

handle is hein.journals/udlr16 and id is 505 raw text is: UNIFORM PARENTAGE ACT: OHIO RECOGNIZES GENETIC TESTING'S VALIDITY TO REBUT THE PRESUMPTION THAT THE NATURAL MOTHER'S HUSBAND Is NOT THE FATHER-Hulett v. Hulett, 45 Ohio St. 3d 288, 544 N.E.2d 257 (1989). I. INTRODUCTION The common law defines a bastard as one who is begotten and born out of wedlock.1 The illegitimate child was historically considered nullius filius - the child of no one - and was not entitled to support from the natural father.' Therefore, under the common law, courts at- tempted to avoid bastardizing a child previously thought to be legiti- mate due to the social and legal stigma attached to the bastardy sta- tus.' Ohio court decisions followed the common law and created a strong presumption that a child born within lawful wedlock or a com- petent time after a marriage terminates is legitimate.' This presump- tion is maintained in Chapter 3111 of the Ohio Revised Code, enacted in 1982 when the Ohio General Assembly adopted a form of the Uni- form Parentage Act.6 The Ohio General Assembly enacted a section which creates a presumption that a woman's husband is the father of any children born during marriage.6 This presumption is rebuttable by 1. I W. BLACKSTONE. COMMENTARIES *454; 2 J. KENT, COMMENTARIES ON AMERICAN LAW 173 (1827). 2. Annotation, Right of Illegitimate Child to Maintain Action to Determine Paternity, 19 A.L.R.4th 1082, § 2 (1983). 3. See Miller v. Anderson, 43 Ohio St. 473, 477, 3 N.E. 605, 606-07 (1885) (prohibiting testimony of mother to bastardize a child born during the marriage because of the effect it may have upon the innocent child), overruled by Johnson v. Adams, 18 Ohio St. 3d 48, 479 N.E.2d 866 (1985) (making presumption of legitimacy generally rebuttable); Moore v. Dague, 46 Ohio App. 2d 75, 85, 345 N.E.2d 449, 455 (1975) (deploring stigma so often attached to the status of illegitimacy); 7 J. WIGMORE. EVIDENCE IN TRIALS AT COMMON LAW, § 2064, at 482 (1978) (dis- cussing Lord Mansfield's rule excluding testimony of spouses regarding paternity). 4. Powell v. State ex rel. Fowler, 84 Ohio St. 165, 168, 95 N.E. 660, 661 (1911), overruled on other grounds, State ex rel. Walker v. Clark, 144 Ohio St. 305, 58 N.E.2d 773 (1944). 5. House Bill 245, which adopted a modified version of the Uniform Parentage Act, was sponsored by Representative Fix and approved by the governor on March 30, 1982. Ohio was the eleventh state to adopt a version of the Uniform Parentage Act. 9B U.L.A. 2 (1987). Six other states have adopted the act since 1982. Id. The seventeen states which have adopted a version of Uniform Parentage Act are Alabama, California, Colorado, Delaware, Hawaii, Illinois, Kansas, Minnesota, Missouri, Montana, Nevada, New Jersey, North Dakota, Ohio, Rhode Island, Wash- ington and Wyoming. Id. The Ohio chapter was updated in 1986 in a bill sponsored by Represen- tative Tansey which appended sections 3111.30 through 3111.38 regarding artificial insemination. The amendment was approved by the governor June 24, 1986. OHIO REV. CODE ANN. § 3111.30- .38 (Anderson 1989). 6. OHIO REV. CODE ANN. § 3111.03(A)(1) (Anderson 1989). The statute states that a man is presumed to be the natural father of any child born during the marriage or within three hun-

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