That’s not my daughter. Can I get a refund?

For the most part, the headline sums up what Eric Fischer asked Connecticut’s highest court, following a divorce from his wife. According to ABC news writer Christina Ng, Fischer discovered that the daughter he was raising was not biologically his. In the case, the court ruled that Fischer could sue the biological father, Richard Zollino, for $190,000 – the cost of raising the girl for 15 years. Fischer v. Zollino, 303 Conn. 661 (2012). The numerical figure was based on an expert witness’ calculation.

During his marriage, Fischer claimed to have seen red flags regarding the girl’s paternity. On the ride back from the hospital when the girl was born, his wife’s friend and business partner, Zollino, joined the couple in the limo. Awkward. Additionally, Zollino was present at the girl’s music recitals and graduation; however, he was not present at events of the couple’s other daughter. Creepy.

For 15 years he suspected, but never said anything. Finally, he obtained a hair sample from the girl and submitted it for a paternity test along with his DNA. The results came in October of 2006 and stated that he was not the father. The couple divorced soon after in 2007, and a test later proved that Zollino was the father.

Initially, Fischer looks at fault for not officially questioning the paternity earlier in the marriage. It seems there should be a time cap on challenging paternity. Or should there? The first thought that came to mind was that Fischer held the girl out as his own by attending major events in her life and by financially providing for her. Hence, he should be the father. One could also argue that perhaps Zollino’s parental rights were waived since he never exercised them. Is that possible though since Zollino knew the girl was his daughter? How much blame should be put on the mother? Is it fair to force Zollino to pay 15 years later?

The Connecticut courts do not address all of those questions, but the courts do nicely explain the issue at hand. The lawsuit, filed in 2008 by Fischer, sought damages on claims of nondisclosure, misrepresentation, and unjust enrichment. In a way, that is basically fraud since the mother and her paramour knew the girl was not Fischer’s daughter. On its face, it appears like a scheme to have Fischer financially contribute to the upbringing of the girl, while Zollino was also contributing to her upbringing. The lower court ruled against Fischer, and used the “best interests of the child” theory to support its decision. The court held that the “best interests of the child” trump financial interests of a putative father. That sounds rather reasonable. Parts of that decision said:

[Fischer] had held himself out to be the younger daughter’s father, that he caused her to rely on him to meet her financial and emotional needs, and that revealing her true parentage after she had been led to believe for her whole life that [Fischer] was her father, would be detrimental to her emotional well-being. [emphasis added]

The seven justices of the Connecticut Supreme Court, however, unanimously overturned that ruling, on what some say was a legal technicality. The court found that there was no evidence that Fischer’s lawsuit would be of financial detriment to the younger daughter. Zollino argued that the trial court should have focused on the girl’s financial detriment, instead of emotional detriment, as the law requires. The court agreed, and found that there was no evidence that a financial detriment would occur. It is rather unfortunate the court weighed the child’s finances above her emotions and mental state.

Additionally, the court found that from a public policy perspective there was no evidence that permitting the reimbursement would harm the child emotionally or that not allowing it would protect her. As unfortunate as that may sound, perhaps the court or either “father” should have had mental health specialists testify or submit evaluations.

The highest court stated that when a putative father himself has been deceived as to the child’s paternity, he is not stopped by equity from refuting paternity once he discovers the truth. In addition, suspicions, despite intensifying over time, do not constitute actual or constructive knowledge because of the theory of presumption where a child born to a married couple is presumed to be the offspring of that couple. Schaffer v. Schaffer, 187 Conn. 223, 226, 445 A.2d 589 (1982). In this case, the couple had a child previously, which was indeed Fischer’s child; this is less reason for Fischer to doubt the second daughter’s paternity. Although the presumption theory makes sense, some may argue that it is outdated for today’s affair-ridden society. The law also appears to favor putative fathers too much since, unlike California’s two-year statutory law (Cal. Fam. Code § 7541), there is no such statutory law in Connecticut specifying time limits for a father to question paternity or sue the biological father.

The one question that lingers in my mind is whether the court would have ruled the same way if Fischer kept holding out the girl as his daughter for a significantly greater time, and therefore, increasing the “estimated cost of raising” her to $250,000, $500,000, or even a million dollars, especially if he paid for her college costs.

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