The reverse fact situation is also clear; a presumption of paternity may be challenged at any time if the mother and the presumed father were not cohabiting and did not engage in sexual intercourse at the probable time of conception and the presumed father never openly held out the child as his own.

Under the fact circumstances described in subsection (b), nonpaternity of the presumed father is generally assumed by all the parties as a practical matter. It is inappropriate for the law to assume a presumption known by all those concerned to be untrue.

Maine Comment

Current Maine law suggests that a court's determination of a genetic father of a child prevails over the presumed parent (presumed to be the father because of marriage to the mother). That determination has the effect of disestablishing the legal parental status of the presumed parent, regardless of the relationship that might have existed between that person and the child and without reference to the best interest of the child. This can be a harsh result for a child. The UPA 2002, in section 1927, reverses existing Maine law after the second birthday of the child, but still leaves the possibility of a harsh result to a child from disestablishment. Under the UPA 2002, a genetic parent cannot commence an action to establish parentage after the child's second birthday if there is a presumed parent. This excludes the genetic parent, a person who has been traditionally deemed an important person in the life of a child, as the legal parent of the child, without considering the best interest of the child. In an effort to reduce the harshness that can accompany the disestablishment of a parent from the life of the child, this enactment rejects both the approach under current Maine law and the UPA 2002. Under the enactment, if the challenge to the presumed parent's parentage commences after the child's second birthday, the genetic parent will not be disestablished. The parentage of the presumed parent and the genetic father will be recognized. The court will use the best interest of the child factors, and will award and allocate to either or both parents, whichever is appropriate, parental rights and responsibilities, including support. The child will not face the potential harsh