Failure To Verify Paternity? Proceed At Your Own Risk

On October 21, 2004, the state of California was faced for the first time with the question of whether an unmarried man who had provided support to a child, in reliance on the mother’s representation that he is the child’s father, may sue the mother on an “unjust enrichment” theory for the return of the funds, after discovering that the child is not his biological offspring. The decision set a surprising precedent: He may not!

Appellant Richard McBride was romantically involved, but was not married to Respondent Garianne Boughton, until he moved to Chile in1996. In December of 1996, Boughton contacted him with news she was pregnant with a child she represented was his. McBride returned to the United States and began supporting them both. In December 1998, Boughton moved out of McBride’s home, and the two agreed that McBride would have custody of the child 10 days each month. Nevertheless, in September 1999 Boughton told McBride she was moving away, and that he would only be able to see the child a few days a month.

In October 1999, McBride filed a paternity proceeding seeking custody of the child, and in connection therewith, genetic tests were done. The tests revealed that McBride was “excluded as the biological father”. McBride then filed an action seeking money damages against Boughton, under the theory of “unjust enrichment”.

“Unjust enrichment” is not a cause of action, however, or even a remedy, but rather a general principle, underlying various legal doctrines and remedies. It is synonymous with restitution. Melchior v. New Line Productions, Inc. (2003) 106 Cal.App. 4th 779. It follows that under the law of restitution, an individual is required to make restitution if he is unjustly enriched at the expense of another. First Nationwide Savings v. Perry (1992) 11 Cal. App. 4th 1657. It would seem to follow that since McBride incurred out-of-pocket expenses in contributing to another man’s child, as a result of which Boughton was unjustly enriched, he would be entitled to reimbursement – but not so, said the court.

The court concluded that two of the most fundamental public policies of this state – the enforcement of parents’ obligations to support their children, and the protection of children’s interest in the stability of their family relationships precluded Boughton from being required to make restitution to McBride, based on his claim of unjust enrichment.

McBride acted within his legal rights in relinquishing his parental role when the child he had voluntarily cared for and supported proved to be someone else’s biological child. The effect of the court’s holding is to encourage a man who willingly parents his partner’s child, to verify paternity at an early stage in a child’s life, if there is any doubt in that matter.