The Difference Between a Bio Dad and a Social Dad
As they say, “Mommy’s Baby, Daddy’s Maybe”. Harsh, but true.
Naturally, there are seldom questions of whether a woman is the mother of a child. However, throughout history, people have questioned whether a man is or is not the father of his children. Before we had DNA testing, the courts simply decided on matters of paternity. Still today, a man’s biological relationship to a child won’t always be determinative of his legal responsibilities as a father. Why?
It all started in ancient Rome with a legal maxim that family courts still consider today: Pater est quem nuptiae demonstrant. The Latin phrase means “the father is he who is married to the mother.”
More recently, a famous paternity test in Los Angeles, California in the 1940s kicked off the modern fatherhood debate. A 23-year-old actress named Joan Berry filed a paternity suit on behalf of her newborn baby Carol Ann, telling the court that 54-year-old world-famous actor Charlie Chaplin was the baby’s father.
The court heard that blood test results – an early and imperfect method of paternity testing – indicated Chaplin could not be Carol Ann’s biological father. Despite this, the jury ruled that Chaplin was the legal father anyway. Their decision relied on his prior romantic relationship with Berry, as well as a history of multiple marriages and divorces from much-younger women. Following Chaplin’s case, California law changed to add more weight to biological paternity over social fatherhood. That change didn’t benefit Chaplin, who was ordered to pay child support for Carol Ann even though the courts acknowledged he wasn’t her biological dad.
Legal concepts of paternity and legitimacy
Because there was no surefire way to know, biology often didn’t matter before the 20th century. Legal histories point out that during the 19th century, so-called “illegitimate children” – that is, kids born to unmarried parents – had many disadvantages compared to children born during a legal marriage. Even if “everybody knew” who a child’s father was, it didn’t matter unless the father and mother were married.
In traditional English Canon law, a church-sponsored form of law that influences current Family Court law in the U.S., children born to unmarried women were regarded as “filius nullius,” or “the child of no one.” The same law said that a child born in a legal marriage was considered the legal child of the man married to its mother, following the ancient Roman concept of pater est quem nuptiae demonstrant.
In ancient Rome, the person who made the decision to recognize a child (or not) was the “paterfamilias,” or “family father.” A Roman man whose wife had no sons to serve as his heir could adopt a son to be his male heir. The most famous case of this was Julius Caesar, who adopted his great-nephew Octavius. Octavius became the Roman Emperor Augustus after Caesar’s assassination.
Father’s rights and legal challenges
According to a United Nations study published by Yale University, 40% of children in the US are born outside of marriage, and in some countries like Chile, as many as 70% are born to unwed parents. In all of these relationships a man can be a child’s father socially, but legal questions have become complex in the face of surrogacy, artificial insemination, questioned fatherhood, and adoption.
Many adopted children describe their adoptive fathers as their dads, and an adoptive father is one of the primary and most recognizable examples of a social dad. At the same time, biological fathers can be held responsible for child support for kids whom they are not raising through Family Court in all 50 states, but their legal status is less clear than a father who has legally adopted a child.
While adoptive fathers are legally considered to be a child’s father once adoption is complete, bio dads can find their rights regarding their relationship with their child are limited — for example, if a child’s mother decides to put their baby up for adoption, unmarried bio dads have limited say in the matter. Over 30 states have either a “putative father registry” or a less-formal legal process for unmarried fathers to say they believe they are the father of an unborn child and want to seek visitation with their child after they are born.
Being a social dad is based in support and daily relationships
The putative father registries played a key role in arguments in a 1983 Supreme Court case, Lehr v. Robertson, in which a New York bio dad, Jonathan Lehr, filed in court to stop his daughter, Jessica M., from being adopted by her mother’s new husband. Hearing evidence in Lehr v. Robertson, the Supreme Court decided that Mr. Lehr didn’t have a right to prevent his daughter Jessica from being adopted because he didn’t have a prior relationship with her, hadn’t supported her financially, and hadn’t signed the New York state father’s registry.
While in some cases, relationships are decided in court based on state putative father registries, the majority of Family Court proceedings consider social father-child relationships like the ones that led the Supreme Court to say Jonathan Lehr couldn’t prevent his daughter’s stepfather from adopting her. Jessica’s father was able to adopt her legally because he had become her social father, providing her support financially and having a relationship with her every day.
Social Dads vs. Bio Dads today
While DNA testing is widely available and incredibly precise, there are more and more situations in which a non-bio dad is the man who raises the child. This is the man who the child calls “Daddy”. Today, there is wide acceptance of men raising sperm donor children, adopted children, and – in gay marriages – the children of another man. All of these men are not just social dads; they are dads, period.
Still, every social dad braces themselves for the question that someone will inevitably ask their child: “But…who is your REAL dad?” One can only hope that we as a society raise the children of social dads to provide only one answer: “My dad is my real dad”.