I have a confession to make

Dave Grohl was the drummer for grunge band Nirvana, and is the founder, lead singer, guitarist, and principal songwriter of the Foo Fighters. Dave is recognized as the father of rock ’n roll these days: he’s talented, family-oriented, and beloved by fans, musicians and divorce attorneys alike. His nickname is “the nicest dude in rock.”

Dave and his wife Jordyn Blum met in 2001 when she was working as a producer at MTV. They married in 2003. They share three kids. His previous marriage ended in 1997. This week Dave’s reputation may have taken a hit after he announced in a post that he was having a child outside his marriage:

“I’ve recently become the father of a new baby daughter, born outside of my marriage. I plan to be a loving and supportive parent to her. I love my wife and my children, and I am doing everything I can to regain their trust and earn their forgiveness. We’re grateful for your consideration toward all the children involved, as we move forward together.”

The decision by Dave to make a pre-emptive announcement may well have been an attempt to control the narrative, something that crisis communications experts say is savvy. But there are also important family law issues when you have an extra-marital relationship which results in the birth of a child.

Florida Paternity Law

I have written about Florida family law matters, such as paternity, before. When a child is born during a marriage, the legal duty to support that child presumptively rests with the married couple. This presumption protects the welfare of the child. In Dave’s case, it is unclear if the natural mother of Dave’s child is married to another man.

Florida has specific laws relating to children born out of wedlock. Right now, Dave would be considered a “putative father”, meaning someone who may be the biological father of a child, whose paternity has not been established, and the child’s mother was unmarried when the child was conceived and born.

Generally, the parents of a child born out of wedlock, after paternity is established, are the natural guardians of the child, and are entitled and subject to the rights and responsibilities of parents.

But until the father has established paternity under Florida law, the mother of a child born out of wedlock is the natural guardian of the child. Before a court determines paternity, the mother is entitled to primary residential care and custody of the child unless the court enters an order stating otherwise.

Monkey wrench

The announcement was met with different reactions. Some fans took it as a personal affront. Mockery and memes of a sad-looking Ben Affleck also proliferated online, even as Dave pleaded for “consideration toward all the children involved, as we move forward together.”

The level of upset by fans speaks to Dave’s place in the music world, where he has reached high levels of adoration and respect. He is one of just a small group of musicians enshrined into the Rock & Roll Hall of Fame with two bands.

But Dave is not the only celebrity to have paternity issues. He joins a list that includes Governor Arnold Schwarzenegger, Bob Marley, and Eric Clapton. While Dave’s celebrity paternity announcement may have gotten ahead of the news, it also left several unanswered legal questions.

The Newsweek article is here.

In family law, the presumption of paternity is one of the strongest in Florida. Japan is about to change its 19th-century law about the paternity. The change in the law of paternity for children born after divorce will help Japanese children facing difficulties getting healthcare and education.

Paternity Japan

Spirited Away

Under a Japanese 1898 Civil Code that’s still in force, a child born to a woman within 300 days of divorce is considered to be that of her former husband, even if she has remarried.

Many women opt not to register their children rather than comply with the regulation, especially in cases of domestic abuse. The country’s practice of registering its citizens under household units has hampered attempts by campaigners to gain the right for married couples to retain separate names, as well as to introduce same-sex marriage.

Japan consistently lags other developed countries in terms of gender equality. It was ranked 116th out of 146 countries in the annual Global Gender Gap Report released by the World Economic Forum in July.

Japan is also one of 32 countries that maintain discriminatory restrictions on remarriage for women after divorce, according to the Organization for Economic Co-operation and Development.

According to a lawyer who succeeded in getting the remarriage ban for women shortened to 100 days from six months in a 2015 Supreme Court ruling, the amendment also indicates a belated shift toward prioritizing the rights of children.

Japan’s Cabinet approved draft legislation Friday to scrap a rule that has prevented the new husband of a woman who has remarried from assuming paternity over a child born within some 10 months of the woman’s divorce from her previous partner.

Florida Paternity Presumption

I have written about Florida family law matters, including paternity changes, before. In Florida, the law presumes that the husband of the biological mother of a child is the child’s legal father. This presumption is one of the strongest rebuttable presumptions known to law, and is based on the child’s interest in legitimacy and the public policy of protecting the welfare of the child.

Because of the strength of this presumption in Florida, many courts have held that a person claiming to be a “putative” father does not have the right to seek to establish paternity of a child who was born into an intact marriage if the married woman and her husband object.

In some courts, the presumption of legitimacy of a child is so strong, it may never be rebutted. The Florida Supreme Court, however, has reaffirmed that the presumption of legitimacy afforded to a child born within an intact marriage is exactly that: a presumption. And the presumption of legitimacy may be rebutted in certain, rare circumstances.

Big in Japan

The change in the law of Japan is aimed at addressing a problem in which some children of divorced women have been left off family registers to avoid former husbands being recognized as fathers. This has resulted in difficulties in children accessing health, education, and other services.

Under what would be the first change to the century-old Civil Code provisions regarding paternity and marriage, a rule banning women from remarrying within 100 days of a divorce, long considered discriminatory, is also set to be scrapped.

A Justice Ministry survey found about 70 percent of 793 individuals not included in family registers as of August this year had mothers who did not submit birth notifications because of the current legal paternity rule.

Many women, in addition to those who have fled from domestic violence, have opted not to submit notifications of the birth of their child with their current partners in order to avoid having their former husbands recognized as the legal father.

The Cabinet of Prime Minister Fumio Kishida also gave the nod to giving mothers and children the right to file for court arbitration with regard to paternity disputes. At present, former husbands can deny paternity over children born within 300 days of a divorce.

The period for filing for arbitration will be set at within three years of knowledge about a birth. Under the current arbitration system, which has been limited to former husbands seeking to deny paternity, the period was set at one year.

The revisions also include deleting the parental right to punish children, while clearly stating that physical punishment and verbal and physical actions that harm a child’s healthy development are not permissible.

Registration and paternity rules are particularly important in Japan, where birth out of wedlock is rare and widely frowned-upon. About 2% of children are born to unmarried parents, while the average across OECD countries is 41%.

The Japan Times article is here.

Tag: Paternity Presumption

Paternity and Celebrity