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PATERNITY FRAUD
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Men wage battle on 'paternity fraud' By Martin Kasindorf, USA
TODAY An acid sense of betrayal has been gnawing at Damon Adams since
a DNA test showed that he is not the father of a 10-year-old girl born during
his former marriage. "Something changes in your heart," says Adams,
51, a dentist in Traverse City, Mich. "When she walks through the door,
you're seeing the product of an affair." But Michigan courts have spurned the DNA results Adams
offered in his motions to stop paying $23,000 a year in child support. Now,
Adams is lobbying the state Legislature for relief and joining other men in a
national movement against what they call "paternity fraud." In almost a dozen states, men have won the right to use
conclusive genetic tests to end their financial obligations to children they
didn't father. But women's groups and many public officials responsible for
enforcing child support are battling the movement, which they say imperils
children. Most states design their family laws to protect what
they call "the interests of the child." That means siding with the
child's financial and emotional needs and against supposed fathers who want to
avoid paying for tricycles and braces. Taxpayers also have a big stake in child support
collections, which have grown to$18 billion annually and cover 20 million
children. If men who are paying child support no longer have to and
authorities can't find the real fathers, welfare agencies will get the bill
for family assistance. Many men who feel deceived by a woman are in no mood to
accept a legal system that doesn't recognize DNA science in such cases.
"It's like they are saying, 'Let your wife cheat on you, have children
by other men, divorce you, and now you have to pay for it all,' " says
Air Force Master Sgt. Raymond Jackson, 43. California judges won't consider
tests he says prove that the three children of his former 10-year marriage
were fathered by other men. Fraud, mistakes There are signs of substantial fraud or mistakes in
identifying fathers in child support disputes. The American Association of
Blood Banks says the 300,626 paternity tests it conducted on men in 2000
ruled out nearly 30% as the father. The legal doctrines raising barriers to DNA testing on
paternity questions are formidable. In 30 states, married men face a
500-year-old legal presumption that any child born during a marriage is the
husband's. The concept, based in English law, is aimed at preventing children
from being branded illegitimate. Nebraska's Supreme Court ruled last week
that an ex-husband who is not a child's father cannot sue the mother to
recover child support payments. The law is more flexible for men who admit to fathering
a child out of wedlock but then change their minds or who are named by the
mother. But they have only brief opportunities to deny paternity. Florida
allows a year after a child support order, California two years after a
birth. Many unwed fathers paying child support have never
admitted paternity. A 1996 federal welfare law requires a woman to name a
father — no questions asked — when she applies for public assistance. A court
summons can be mailed to the man's last known address. Many men don't get the
notice. The result: The paychecks of 527,224 men in California, for example,
are being docked under "default" judgments of paternity that can't
be contested after six months. Men who urge use of DNA cite a precedent: DNA's
increasing impact in murder and rape cases. "Think of it. I can get out of jail for murder
based on DNA evidence, but I can't get out of child support payments,"
says Bert Riddick, 42, a computing teacher in Carson, Calif. Riddick is paying $1,400 a month for a teenage girl born
out of wedlock whom he's never met. Strapped, he and his wife are living with
in-laws. Their three children, ages 3 to 11, cram into one room. He lost his
driver's license for missing support payments and rides a bus 75 minutes to
work. Gradually, legislators are reshaping paternity law.
Alabama, Arkansas, Georgia, Iowa, Ohio and Virginia now permit ex-husbands
and out-of-wedlock fathers to end child support through DNA. Maryland has
made the same change via court decisions. Colorado, Illinois and Louisiana grant relief only to
ex-husbands, allowing them to offer genetic proof. Texas allows ex-husbands
four years from a birth to disprove paternity and gives unwed fathers
unlimited time. A sweeping bill that would authorize married and unmarried
fathers to offer DNA evidence is working its way through the New Jersey State
Assembly. Carnell Smith, 41, an engineer in Decatur, Ga., who was
getting nowhere in challenging a support decree, started a group called U.S.
Citizens Against Paternity Fraud that lobbied for the law Georgia Gov. Roy
Barnes signed in May. The slogan on the Web site of Smith's group
(www.paternityfraud.com): "If the genes don't fit, you must
acquit." Smith is back in court and says, "I fully intend to be one
of the first people to be released." Pending in Vermont is the toughest bill of all. It would
make a mother's knowingly false allegation of fatherhood a felony that could
put her behind bars for up to two years and fine her up to $5,000. "A
woman almost always knows who the father is, and if she puts down the wrong
person knowingly and it's costing him money, it's just plain fraud,"
says state Rep. Leo Valliere, a Republican, the bill's sponsor. Men's rights groups aren't advancing everywhere.
California Gov. Gray Davis vetoed a bill in September that was opposed by
women's organizations. It would have given men two years after discovering
they weren't the father to produce the DNA evidence to prove it. Florida
paternity fraud bills died this year. A package of bills passed the Michigan
House 102-0 but is stalled in the Senate. 'Dump the child' Some analysts say laws need revising but DNA shouldn't
be decisive. "Some people want to dump the child and say biology is all
that matters, not relationships," says Jack Sampson, a law professor at
the University of Texas-Austin. Carol Sanger, a family law professor at
Columbia University in New York, says the law should be more generous to men
who may not even know a child than to dads who have been living with the kids
they didn't father. "Families are more complicated than who's
biologically related to whom," says Valerie Ackerman, staff director for
the National Center for Youth Law in Oakland. "If there has been a
relationship between a father and child, the man can't just abdicate the
responsibility that he's taken on." Supporters of current law say the interests of the child
should trump a man's concern for his wallet. "The other guy is somewhere
over the hill and long gone," says Jenny Skoble, an attorney at the Harriet
Buhai Center for Family Law in Los Angeles. "If it comes down to whether
the only (available) father is going to be on the hook to pay money or this
kid is going to be in the situation of having no father, I'd say we have to
put the child first." Men who want relief say it's a matter of equity.
"DNA equals truth," says Patrick McCarthy, 41, a Hillsborough,
N.J., package courier. After paying for 13 years to support a girl he denies
fathering, McCarthy co-founded New Jersey Citizens Against Paternity Fraud.
The group has put up nine billboards supporting the pending bill in New
Jersey. The ads depict a pregnant woman and ask, "Is it yours? If not,
you still have to pay!" "Obviously, there's more to fatherhood than
genes," McCarthy acknowledges. "However, to pay support on a
non-biological offspring should be an individual choice, not ordered by the
courts." Adams says he's willing to directly aid the child he'd thought
was his but doesn't want to give his ex-wife any more cash. Trouble could be minimized if all children were DNA-tested at birth or at the time of divorce, says Geraldine Jensen, president of the Association for Children for Enforcement of Support. She says maternity wards should distribute pamphlets telling men, "Get tested now if you have any questions, because doing it later will disrupt this child's life." From USA TODAY |
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Parent
Trap? Litigation Explodes Over Paternity Fraud
Paternity fraud
is rampant in the United States, triggering legislation and legal challenges
in more than a dozen states, according to family law attorneys and fathers'
rights activists. At issue: Men
claim women are getting away with trickery -- DNA evidence may show a man is
not the father, but the courts are still forcing him to pay child support
anyway. "This is the
new underdog," said Michigan family law attorney Michele Kelly, who
represents mostly men tangled in paternity disputes. "I was a staunch
feminist. I marched with Gloria Steinem. But the new victims in America are
working men. All they are is a mule train." Most recently,
Kelly secured a victory for a Michigan man who had paid an estimated $80,000
in child support over 15 years to his ex-wife, despite DNA evidence that
proved he wasn't the father of their first son. On March 23, after a bitter
court battle, the case settled with the ex-wife agreeing to have all child
support canceled. Richardson v. Luria, No. 91-7019-DM (Bay Co., Mich.,
Cir. Ct.). The woman's
lawyer, Robert Dunn, a solo practitioner based in Bay City, Mich., was
unavailable for comment. Meanwhile, Kelly,
of Kelly & Kelly in Northville, Mich., said this case is just the tip of
the iceberg. "One case is
just more outrageous than the next," she said. According to a
recent study in New Hampshire, as many as 30 percent of those paying child
support are not the biological fathers of the children being supported.
California is also expected to release results from a similar study later
this year. "Paternity
fraud is a growing concern for men and children everywhere," the New
Hampshire report concluded. "It can spawn considerable grief for the men
who may or may not be emotionally attached to a child they later discover was
fathered by another; and possibly unsettling for children who may discover
the false nature of their paternity." Attorneys and
fathers' rights activists claim that a big problem facing men today is that a
large majority of states -- 38 in total -- still have laws on the books that
require a man to pay child support, even with DNA evidence showing that he is
not the father. Most states rely
on a 500-year-old English common law doctrine, which holds that a married man
is always legally presumed to be the father of a child born of the marriage. STATES RESPOND Meanwhile, many
states are responding to the alleged widespread problem of paternity fraud
with new laws. Florida is about
to pass a new law that would end child support if a man proves he's not the
father. In Colorado, a
new state law took effect this year that permits men, for the first time, to
challenge the paternity of alleged offspring -- at least during the
proceedings of a divorce, separation or child-support action. And Michigan is
considering a bill that would require the courts to withdraw child support if
a man proves he is not the father. A dozen other
states have also made similar changes to paternity laws, most of them in the
last five years, that allow for men to disestablish paternity. These states
include Ohio, Georgia, Maryland and Alabama. FITTING A '1950s
LIFESTYLE' "Clearly
today, more than ever before, paternity is raised more frequently," said
family law expert John P. Paone Jr. of Paone & Zaleski in Woodbridge,
N.J., who believes old paternity laws don't work in today's world. "The reality
is that now there are women, as well as men, who are engaging in extramarital
relations. Welcome to Desperate Housewives. Here we are," he said. Paone, former
chairman of the Family Law Section for the New Jersey State Bar Association,
believes that new legislation is needed to reflect the change in societal
mores. "This
presumption that a child born during the marriage is the biological child of
the mother and father may no longer be appropriate," Paone said.
"These things all worked very well in a 1950s lifestyle, but today that
may be the exception to the rule," Paone said. But Paula
Roberts, an attorney with the Center for Law and Social Policy in Washington,
doesn't view paternity fraud as a growing problem. Instead, she
argues that actual fraud occurs very rarely, and that most men who challenge
paternity do so only after a relationship sours. Roberts also
cautions states against passing overly broad laws that allow men to
disestablish paternity. "What
worries me about these laws is they behave as if all the fact patterns are
the same, and that it's always some poor defrauded guy as opposed to what you
see when you read the case law," Roberts said. "If you read the
case law, what you discover is that there is a small number of cases in which
the guy has actually been defrauded." Roberts said that
in recent years, she has helped draft model laws, adopted in several states,
that allow men and women to get genetic testing within the first two years of
a child's life. If the test shows the father is not the biological parent,
then he has the right to disestablish paternity. Such laws have
been adopted in Delaware, North Dakota, Texas, Utah, Washington and Wyoming,
and Roberts believes that the two-year age limit is better than the
"anyone can sue anytime approach," which can hurt children. STATES ARE BEHIND
Linda S. Ferrer,
a family law practitioner in California who has handled dozens of paternity
fraud lawsuits in recent years, agreed. "The states
are just behind the times," said Ferrer, who called paternity fraud
"a tremendous problem. "It really
seems that there are so many deadbeat dads out there and they should be going
after the real father instead of hanging the hat on any guy that the mom
points the finger to," Ferrer said. Ferrer, a solo in
Santa Ana, Calif., won a landmark 2004 court ruling in which she helped a
construction worker get a child support order thrown out after proving he was
not the father. A lower court had refused the man's request, saying too much
time had elapsed, but he won on appeal. "[W]hen a
mistake occurs in a child support action, the county must correct it, not
exploit it," California's 2d District Court of Appeal said in its
ruling. County of Los Angeles v. Navarro, 120 Cal. App. 4th 246. Since the Navarro
ruling, Ferrer has helped set aside 20 default paternity judgments against
men who proved they were not the biological fathers. Statewide, she
said, roughly 700 similar default judgments have been set aside since the
ruling. But some legal
experts argue that the paternity-fraud movement is creating a backlash. Michigan State
University Law Professor Melanie Jacobs cautions states about passing new
paternity-fraud laws, arguing children could get hurt in the long run. "I think the
problem with those laws is that, No. 1, they need to consider a child's best
interest. I'm not trying to minimize the trauma to the nonbiological father,
his feeling of betrayal," Jacobs said. "But I can
only imagine how traumatic it is for the child who learns that someone is not
their father, and suddenly that father goes to court and says not only do I
not want to pay for this child's [upbringing], I want to legally be declared
the nonfather," Jacobs added. STRICT LIMITATION
NEEDED? Jacobs strongly
urges states that are considering laws that would permit paternity
disestablishment to adopt a very strict statute of limitations to prevent
harm to a child who has become emotionally attached to a parent. Attorney Jennifer
Brandt, a partner in the family law department at Cozen O'Connor in
Philadelphia, agrees. "In a course
of fairness, men should not be held accountable for payments of child
support, but you don't want to leave children fatherless, either," said
Brandt, who believes women have long had the upper hand in paternity
disputes. "But I think
they're losing ground," said Brandt, adding that a growing number of
biological fathers are also waging their own war, fighting for a greater role
in their children's lives. "It's all
over the place," Brandt said of the so-called men's movement. A NEW WRINKLE Another new
wrinkle in paternity disputes is men seeking reimbursement for child support
payments. That's at the
heart of a recent case in New Jersey, where a man recently won the right to
sue the biological father for nearly $110,000, the cost of raising the child.
RAC v. PJS, 380 N.J. Super. 94 (N.J. App. Div. Aug. 31, 2005). The case involved
a man who found out 30 years after his youngest child's birth that he was not
the father. An appeals court
ruled in September that the man could sue for reimbursement because he had
been duped. But Scott Bocker, attorney for the biological father, said the
mother should be held accountable because she duped the biological father,
too. "His
position has been it should be the mother, who lied to everybody, who
pays," said Bocker of the Law Offices of Herman Osofsky in Clifton, N.J.
He added that
what is unusual about the case is that the plaintiff filed suit using the
state's Parentage Act, which historically was designed to let children and
mothers go after deadbeat dads for nonpayment. The case has been
appealed to the New Jersey Supreme Court. "This is the
first time the law has been used in this way by a third party," Bocker
said. |
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OTHER ARTICLES ON PATERNITY FRAUD Father Takes DNA Paternity Fraud Case To U.S.
Supreme Court Paternity Fraud Certiorari Petition to USSC DNA Shakes Up Child Support
Law Paternity Fraud Article in
Christian Science Monitor Text of Paternity Fraud Bill in California Georgia
Paternity Fraud Legislation Vermont Paternity Fraud Legislation (Makes
Paternity Fraud a crime punishable by prison!) Ohio Statute on Paternity Fraud Why truth is not a defense in paternity actions Truth Is No Defense in Child Support Cases California Paternity Justice Act: If the Genes Don't
Fit, You Must Acquit |
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I get a lot of e-mails. Be patient!
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