Can they legally falsify paternity on an obituary?

Question

My boyfriends daughter died. He is her legal father and by blood, he is on the birth certificate. As well as paternity established. Her mother did the obituary and listed her boyfriend the father/parent. Is this legal? I have read its illegal to post a false public document, is an obituary considered a public document? How can we have it changed and his name put on it. The funeral home knows she is lying. The director of said funeral home is dodging my boyfriend calls. What can he do?

Answer 1

My boyfriends daughter died. He is her legal father and by blood, he is on the birth certificate. As well as paternity established. Her mother did the obituary and listed her boyfriend the father/parent. Is this legal?

Realistically, yes. It is probably legal.

The majority rule is that one can't bring claims of defamation or intentional infliction of emotional distress/outrageous conduct, on behalf of the dead. In particular, in Ohio, the Ohio Revised Code § 2311.21 states that actions for libel and slander will end upon the death of the plaintiff. So, no legal relief may be sought on behalf of the deceased daughter.

The mom's current boyfriend presumably consented. There is a fair reading of "father" that includes psychological or god-father figure as opposed to legal parent, under which the statement would not be false.

Nothing is said about the true father so it isn't really an outright defamatory statement about him that harms his reputation.

If the obituary were used as a basis for receiving some sort of economic death benefit, like a social security survivor's benefit or insurance proceeds, it might be a case of common law fraud or something similar, and would also probably constitute criminal fraud or theft. A false statement in a probate court filing would likewise be sanctionable, either by the presiding probate court judge, or in a criminal proceeding (although probably not in a separate civil lawsuit).

Arguably, it might meet the standard of "outrageous conduct/intentional infliction of emotional distress" (whether something meets that threshold if all facts alleged are true is a question of law, rather than a jury question), but generally that would require a calculated intent to harm the true father as opposed to, for example, an intent to make that daughter's funeral go smoothly if she had many friends who assumed that the mother's boyfriend was the father, so probably not. Public policy generally favors not having the courts intervene in obituary omissions or inaccuracies.

It is certainly not a crime.

Not all untruths have legal remedies.

I have read its illegal to post a false public document, is an obituary considered a public document?

No. An obituary is just a private publication, it has no official status. I would agree with the following source that states that:

There are no legal requirements tied to obituaries. They’re a way to tell the story of a deceased family member, and they only carry sentimental value. Obituaries are not a legal or financial obligation under any circumstances.

(Source: Do You Legally Have to Have an Obituary or Death Notice?)

How can we have it changed and his name put on it.

You can't.

The funeral home knows she is lying. The director of said funeral home is dodging my boyfriend calls. What can he do?

Take out his own obituary in a newspaper or some other medium of his choosing setting forth the true facts. If the original was published in a newspaper, ask the newspaper for a correction or write a letter to the editor commenting upon it.

Generally speaking, the First Amendment is designed to encourage responses by counter-speech, rather than by legal action.

For example, in one notable case, the Texas Supreme Court's ruled upon whether the authors of an obituary about their son could sue for defamation when someone else accused them of including false statements of fact in the obituary. It held that the authors of the obituary could not successfully sue the people making the counter-statement to their obituary. The Dallas Morning News v. Tatum, Case No. 16-00984 (Tex. May 11, 2018) (affirming a summary judgment order dismissing the defamation lawsuit brought by the authors of the obituary).

Footnote

Most of the litigation and notable cases involving false obituaries relate to obituaries for people who aren't actually dead.

Answer 2

An obituary is not a public record under Ohio law, see ORC 149.42. Anyone is free to publish a false statement, up to the point that it constitutes fraud, deceptive advertising, or defamation (I'm not going to give a list of all of the legally-prohibited false statements, these are the most relevant). "Advertising" relates to commerce in goods and services, so has no applicability in this situation. Likewise, "fraud" relates to making a false statement in order to induce a person to do something of value based on a material claim: not demonstrably applicable. Defamation is a false statement that harms the reputation of another. This is the one thinly-possible angle for legal action. A patently false statement would be "Smith is not the biological father of Sally", which could then subject Smith to public humiliation – a classic cause of action in defamation. The statement "Jones is the father of Sally" could arguably imply the patently false statement, but also could have a literally true interpretation (Jones functioned as the father-figure to Sally). The courts would then look all of the facts and determine whether a reasonable person would interpret the obituary as making the patently-false statement. On the face of it, that is not a reasonable conclusion, but that is a determination that would have to be made in court.