DNA Testing Declares Two Different Men The Father In Paternity Case What is a judge supposed to do? The Honorable Fred W. Copeland, sitting on the Circuit Court of New Madrid County, Missouri, was likely thinking this as he was reviewed the results of DNA testing in a paternity case he was hearing. They demonstrated to a 99.999% certainty that two different men were the father of the child in question. How is it mathematically possible that two different men each have a 99.999% probability of being the father? It’s possible when the candidate fathers are identical twins. These are the essential facts of a recent case handed down by the Southern District of the Missouri Court of Appeals. The story begins with the mother, Holly Marie Adams, who by her own testimony, engaged in sexual relations with twin brothers Raymon and Richard Miller during the time between her last menstrual period and when a doctor determined that she was pregnant. Raymon and Richard have the exact same genetic make-up because their conception resulted from a single sperm fertilizing a single egg that then split in two. Family Courts in recent years have relied almost entirely on DNA testing for determining paternity, so this case presented a unique conundrum. The mom, as well as the State of Missouri , was seeking Judge Copeland’s assessment so that Holly Marie and the state knew who to dun for child support. But, how would his honor decide? Flipping a coin wasn’t an option, so the judge chose to rely on Holly Marie’s testimony of when certain events happened and with whom. Perfectly reasonable, said the Court of Appeals, noting that judges are entitled to give the testimony of some witnesses more weight or credibility than others. Except that Holly Marie contradicted herself under oath on the most important fact of the case. At first, she testified that she and Raymon ended a long-term relationship on August 8, 2003, which was also the last day she and Raymon had sexual relations. This date falls squarely in middle of the almost three week period that medical testimony indicated was the period of conception. She also testified that she did not have sexual intercourse with Richard, the twin brother, until August 20th or 22nd, after the period of conception, and that Richard had used a condom on that occasion. So far so good, but Holly then reversed herself under cross examination, saying that she had relations with both brothers on August 8th, seemingly reinforcing the notion that each twin was an equally good candidate. Most likely, Judge Copeland was determined to “pin the tail on the donkey”, but desperate to find a reasonable basis for doing so. He looked to the testimony that Holly gave about when she first experienced morning sickness, which was on or about August 18th or 20th and before she had intercourse with Richard. That must have tilted the balance for the judge because he declared Raymon the dad. Naturally, Raymon appealed, claiming that there were no more reason to pick him than Richard and, based on my reading of the Appellant Court record, I tend to agree. Perhaps the judge was banking on the odds that Raymon, the former boyfriend, had more “opportunities” to impregnate Holly than did Richard, the one-night stand. However, the court record makes no mention of any sexual encounters between Raymon and Holly, other than on August 8th, during the likely period of conception. Given that their relationship was on the wane that abstinency seems entirely possible. In the end, the Court of Appeals affirmed Judge Copeland’s choice, although I believe there was another option available that would have been fairer in these unique circumstances and I‘ll discuss that next week.