PRESUMPTION OF PATERNITY, BUT NOT EQUALITY (The Massachusetts Review)
IN LATE JUNE, a friend shot me a text: “Let me know if you want to march with [me] on Pride here in NYC.” I grappled with the question, the shame it brought to the fore. In my inbox was an email from my attorney sent just days before: “Nicole—attached is the notice of the argument en banc. It is scheduled for Harrisburg on August 9th.” At the time of year when I and other queer folks parade pride in ourselves, communities, and families, I was involved in another kind of spectacle. One in which the Pennsylvania Superior Court would determine whether the child my wife and I brought into this world is mine.
I SPENT A DECADE prosecuting intimate partner violence and po- lice. While in law school, I learned that, in our courts, presumptions are tools judges use consistently to decide tough legal questions. There are legal presumptions we widely accept: a criminal defendant is presumed innocent until proven guilty; a missing person who has not been heard from for seven years is presumed dead; a child born of a married couple is presumed to be the husband’s, regardless of biological relation. In the context of family law, this is the most significant legal presumption there is.
This presumption, though, only applies to cis-men. It does not apply to cis-women wives who, though not biologically or gestationally related to a child, have taken on the full breadth of financial responsibilities, emotional devotion, and medical actions necessary to bring that child into the world. I learned this unfair truth not as a lawyer or law student but as a litigant.
