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289 S.C. 414

Stewart v. Brown

Supreme Court of South Carolina

Decided December 9, 1985

Supreme Court of South Carolina · decided 1985-12-09

Cited by 2 later decisions — most recently March 1989

2 state decisions

Relies on BARR'S NEXT OF KIN v. Cherokee, Inc. · Lewter Ex Rel. Epps v. Thompson · South Carolina Department of Social Services v. Thomas

Good law ✅— No negative treatment on recordhow we know

Decided 1985-12-09

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Per Curiam:

¶1This is an appeal from a family court order. The trial judge found that Respondent’s younger daughter was illegitimate, that Appellant was the child’s father and ordered Appellant to pay child support.

¶2Respondent was permitted, over objection, to testify to *415her husband’s non-access during the period of conception. Her testimony was corroborated by that of her sister and a former roommate, but neither was able to establish the husband’s absolute non-access. Appellant presented evidence that Respondent’s husband had access to her and could have fathered the child.

¶3The presumption of legitimacy is one of the strongest known to law. Barr's Next of Kin, et al. v. Cherokee, Inc., 220 S. C. 447, 68 S. E. (2d) 440 (1951). This presumption, that a husband has access to his wife and is the father of her children, may only be overcome by the clearest evidence, S. C. Dept. of Social Services v. Thomas, 274 S. C. 228, 262 S. E. (2d) 415 (1980), which must come from third parties. Barr’s supra; Lewter v. Thompson, 281 S. C. 397, 315 S. E. (2d) 821 (S. C. App. 1984). Clearly the family court judge erred in allowing Respondent to testify to her hus-. band’s non-access after the objection was made.

¶4Absent Respondent’s testimony, the evidence is insufficient to meet the heavy burden of proof placed upon a parent seeking to have a child, born in wedlock, declared illegitimate. We reverse.

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