How can I prove that the child is not mine? How can I prove that the child is his? If you are the father of a child, the court expects you to support that child at least until the 18th birthday. If you are the mother of a child, you need the father to help you with supporting your child. When there is a question of paternity, you will need to petition the family court for a decision. There is a difference between being the legal father of a child and being the biological father. Only the legal father is responsible for paying child support.
In South Carolina, there is a common law presumption that a child born during lawful wedlock is a child of the marriage. See Barr's Next of Kin v. Cherokee, Inc., 220 S.C. 447, 68 S.E.2d 440 (1951), superseded by statute on other grounds as recognized in South Carolina Dep't of Soc. Serv. v. Burris, 297 S.C. 537, 539, 377 S.E.2d 578, 579 (1989). "Where the child is born after lawful wedlock, and after the lapse of the usual period of gestation, it should require a very strong state of circumstances to overthrow the presumption of legitimacy, such as impossibility of access, absolute non-access, abandonment, or something equally as conclusive." Id. (emphasis added).
Despite the common law presumption, the family court found a "rebuttable presumption" of Mr. Fisher's paternity was created under S.C. Code Ann. § 20-7-956(A)(3) (2007). The family court further found that Fisher had overcome the common-law presumption of legitimacy. Id. We agree with the family court and believe the court properly determined paternity.
S.C. Code Ann. § 20-7-956(A) provided: "[t]he following evidence is admissible at a hearing to determine paternity . . . (3) Test results which show a statistical probability of paternity. A statistical probability of ninety-five percent or higher creates a rebuttable presumption of the putative father's paternity." S.C. Code Ann. § 20-7-956(A)(3) (2007). At trial, Fisher presented the results of a test with the DNA Diagnostic Center showing a statistical probability of 99.999% that he was the father of the child. Consequently, there arose a rebuttable statutory presumption that Fisher is the father. See S.C. Code Ann. § 20-7-956(A)(3) (2007).
We find Mr. and Ms. Tucker produced no evidence to rebut this presumption. The Tuckers demonstrated only that they were married at the time of Leigha's birth and had sexual intercourse during the month of conception. At trial and in their brief, they seem to rely on the common-law presumption. However, common law rules must yield to statutes enacted by the General Assembly. See Burris, 297 S.C. at 539, 377 S.E.2d at 579 (holding Lord Mansfield's rule superseded by statute specifying parentage as a permissible subject for husband and wife testimony). Accordingly, under the facts of this case the statutory presumption controls and the Tuckers failed to overcome the presumption.
The Tuckers contend that the common law presumption controls despite the statutory presumption found in S.C. Code Ann. § 20-7-956(A)(3). They base their argument on Burris, and specifically on the Court's holding that the common law presumption "is not affected by" another provision of § 20-7-956 – subsection (5). We find the Court's holding in Burris simply recognizes the absence of a conflict between subsection (5) and the common law presumption and is therefore not on point.
Moreover, even if we were to hold the common law presumption controlled, we are confident that Fisher overcame the presumption. Fisher presented evidence of two genetic tests, one showing him to have a 99.999% probability of being the child's father and the other showing Mr. Tucker to have a 0% probability. Significantly, Fisher elicited testimony establishing that Mr. Tucker had undergone a vasectomy and used protection while having sexual intercourse during the month of conception. These facts are tantamount to a showing of infertility and constitute "something equally as conclusive" as the examples, set forth in Burris, to overcome the presumption of legitimacy." Fisher v. Tucker, 388 S.C. 388, 697 S.E.2d 548(2010).
There is no statute of limitations on determine paternity actions in the State of South Carolina. S.C. Code Ann. § 20-7-952 allows paternity actions by and on behalf of children older than eighteen.
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