State Courts And Paternity Fraud
State Courts And Paternity FraudThe stories below are reproduced under the Fair Use exception of 17 USC § 107 for noncommercial, nonprofit, and educational use.
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No time limit on proving paternity in Ohio
Where'd my daddy go? Justices sent him away
Teen sues mom in bid to ID dad in Mount Clemens Michigan
Dad wasn't dad after all, but Florida Supreme Court rules he still owes child support
Missouri man who isn't father must pay child support anyway
© 2006 Cleveland Plain Dealer
February 2, 2006 — The Ohio Supreme Court upheld a state law Wednesday that gives men unlimited time to use DNA proof that they are not biological fathers, which means they could stop paying child support.
Previously, men had one year to challenge support orders with DNA. The law removing the time limit, enacted by the General Assembly in 2000, was challenged by the Cuyahoga County Prosecutors Office.
Thousands of the 685,000 child support orders in Ohio could be overturned, sending mothers and child support enforcement agencies searching for the real fathers.
An estimated one-fourth to one-third of DNA paternity tests nationwide result in men learning that they are not the fathers, according to the American Association of Blood Banks, which monitors the laboratories doing the tests.
In Cuyahoga County in the last five years, an average of 120 men a year sought DNA tests. About 40 a year had their child support orders dismissed. [one third]
"The cases were usually settled by forgiving the arrearage the man owed from failing to pay for months or years," Assistant County Prosecutor Laura Gallagher said. "Since the men weren't paying it as ordered in the first place, most mothers' budgets won't be devastated. It's the kids who feel it the most."
Former State Rep. Peter Lawson Jones, a Shaker Heights Democrat, sponsored the bill five years ago.
"I feel great," he said Wednesday, after learning of the Supreme Court's unanimous ruling. "No man should be forced to pay for children that are not his. It's just pure, unadulterated common sense."
It's not that simple, said Gallagher and her colleague Timothy Spackman.
The law doesn't allow judges to consider the overriding concern in Juvenile and Domestic Relations courts — the best interests of children, they said.
"I've been involved in a case where the boy was a Junior," Gallagher said. "It's heartbreaking. It's to hell with the kids." [EJF note: Isn't it the mother who is responsible? Why should an innocent man be condemned for a woman's adultery?]
Spackman added: "I've been involved in cases where teenage kids ended up in psychiatric hospitals" after they learned the man they called dad was not their biological father.
The clash between DNA science and years-old support orders began as a trickle in the 1980s. It swept through 43 states in the last decade and generated conflicting court rulings.
© 2006 Detroit Free Press
July 28, 2006 — It hadn't occurred to me that the black robes of judicial office endow the mortals who wear them with supernatural powers. But I'm considering that possibility in light of a recent paternity case in which Michigan's highest court took the only father a 7-year-old Kalamazoo boy has ever known and made him disappear — poof! — just like that.
Nobody is denying that Michael J. Barnes Jr. exists or that he is the biological father of McClain Michael Barnes, the son his girlfriend Kim Jeudevine gave birth to in February 1999. The elder Barnes still has the home pregnancy test that announced McClain's imminent arrival, and the surgical gown he was wearing the day he witnessed his son's delivery.
Jeudevine acknowledged Barnes' paternity in an affidavit of parentage signed after her son's birth and obtained a birth certificate listing Barnes as the father. The couple never married, but they lived and raised McClain together until the summer of 2003, when they broke up.
Barnes' right to a continuing relationship with the son he sired and raised for nearly 4 1/2 years wouldn't be an issue except for the fact that the boy apparently was conceived while Jeudevine was still married to another man, James Charles.
Charles filed for divorce from Jeudevine in July 1998, about eight months before she gave birth to McClain. He says he didn't even know his wife was pregnant when their divorce became final that November, and he told the divorce judge (at a hearing Jeudevine declined to attend) he had no reason to believe she conceived a child during their two-year marriage.
Charles has never had anything to do with the son Jeudevine gave birth to in 1999, and no one, including Jeudevine herself, has ever argued that he should.
But in 2003, when Barnes sued Jeudevine for visitation rights after she told him he could no longer see McClain, Jeudevine's lawyers argued that only Charles, the ex-husband who'd taken no part in the boy's conception or upbringing, had standing to assert any paternal rights.
A Michigan Court of Appeals panel unanimously rejected that reasoning in 2005, ruling that although McClain was conceived while Charles and Jeudevine were still married, their divorce decree had specifically excluded him as the father of any children she bore. Since all the available evidence pointed to Barnes as the biological father, the panel concluded, he was clearly within his rights to seek parenting time with McClain.
Barnes, a 45-year-old telephone lineman who now lives with his new wife in rural Van Buren County, wept for joy when he got the news of his appellate court victory. But Jeudevine's attorneys appealed, and Wednesday, by the narrowest possible margin, the Michigan Supreme Court agreed that only Charles, the dad who never was, has standing to sue Jeudevine for visitation with McClain.
"The affidavit of parentage and the birth certificate do not rebut the presumption that the child was an issue of [Jeudevine's] marriage to Charles," Justice Elizabeth Weaver wrote for the court's 4-3 majority. "Charles is and remains the child's legal father."
Charles, needless to say, has no intention of suing for custody of a boy he has never had any reason to believe was his. Jeudevine, 49, could force the issue of paternity by suing Charles for child support. But she's unlikely to do so, since the likely consequence would be a court-ordered DNA test excluding Charles as the father. If Charles were thus excluded, the distraught Barnes would have a new legal opening to assert his own paternity claim, which is the last thing Jeudevine wants.
"What is clear is that, for a practical matter, the child can expect to have no father in [Jeudevine's] former husband," Justice Marilyn Kelly wrote in a bitter dissent.
Justice Stephen Markman went further, in a separate dissent joined by Justice Michael Cavanagh:
"The majority here rejects a father who welcomes the opportunity to take responsibility for his child, and who has acted as a father for more than four years, in favor of no father at all," Markman wrote.
Barnes' attorney says he'll petition state justices to reconsider the case. But barring an about-face by one of the four justices in the majority, his only recourse would be a long-shot appeal to the U.S. Supreme Court.
So for all practical purposes, the only thing Kim Jeudevine has to worry about is how to answer when her son asks why she and a bunch of state Supreme Court justices conspired to banish the only father he has ever known.
Boy, I'd hate to have to answer that one. But, hey, maybe Justice Weaver and her colleagues can make little McClain disappear, too.
Contact Brian Dickerson at 248-351-3697 or dicker@freepress.com.
© 2006 Detroit News
April 28, 2006 — A 17-year-old Mount Clemens boy is suing his mother in Macomb County Circuit Court to force her to reveal the identity of his biological father.
Two years ago, the teen — identified as "Minor J" in court filings — learned that the man who helped raise him wasn't his real father. Now, with help from that man, who is his legal father, he's involved in a lawsuit that could help determine what rights children have to know the identity of their parents.
The case centers on the teenager's desire to know his family genetic history for health purposes, said Henry Baskin, a prominent Birmingham attorney who represents Minor J.
The mother, who lives in Fraser and is identified as Diane J., "owes her son this information," said Baskin, who acknowledged that he could find no legal precedent that would compel her to provide the information. "I've checked all over the country and I can't find anything," he said.
The boy's mother could not be reached for comment and apparently is not yet represented by an attorney.
J. Michael Kelly, a prominent Santa Monica., California, family law attorney and a University of Southern California professional, said he believes the son has a right to sue to find out who his father is.
"It's an overriding right," Kelly said. "It would be extraordinarily selfish for the mother not to disclose. A human's desire to know who their parents are and where they came from is crucial. He can't say, 'this is my grandfather, this is my grandmother.' He has no history."
Baskin said the case is not going to be about child support.
"It's 'Who's my daddy?' It's unfair to everyone not to know genetically what's going on. It's either going to be a case that will set precedent or it will lead to some legislation if I can't sustain the case."
Diane J. and her former husband were divorced in 1995. The couple was married at the time Minor J. was conceived in 1988, Baskin said.
In 2004, the husband began to have doubts that the teen was his biological child, Baskin said. After the divorce, Minor J. split his time between his mother's home and her former husband's home in Oakland County. And he still does.
"The father, who loves this person by the way and is very much in his life, just for some reason thought, 'Geez, there's something genetically incorrect.'"
In April 2004, the family was tested. Two separate DNA tests dispelled any possibility that the man was his father, according to the lawsuit.
The teen asked his mother for the identity of his father. According to the lawsuit, his mother gave another name — referred to as "Mr. X" in the lawsuit.
Three months later, another DNA test revealed Mr. X wasn't the father, either.
It was then that the mother refused to reveal the identity of the biological father.
"It's unfair to everyone not to know genetically what's going on," Baskin said. "If you were in your teens and want to go to college, get married and have a baby, wouldn't you like to know your family medical history before you have a child?"
Baskin points out that even donor and adoption agencies require a medical history of both parents in an effort to ensure a healthy lifestyle for the child. "It is imperative to know his predisposition to disease," he said.
"How important the family history is depends on what's in the family history," said Dr. Alan Guttmacher, deputy director of the National Human Genome Research Institute. The institute is part of the National Institutes of Health in Bethesda, Md. "It's very useful for everyone to know their family history to the greatest degree possible. If you have good (information), it can alert you to specific disorders."
That medical background can help someone make better lifestyle choices, such as early medical screenings, diet and exercise, he said.
The worst-case scenario is for someone to unknowingly be at risk for a particular disease they wouldn't normally think about unless it's in the family medical history, he said.
In addition, the biological father could be compelled to pay support. But the clock is ticking. A child can sue for support from his biological parent when he's a minor up until a year after reaching adulthood. So the teenager has until January 25, 2008 — his 19 th birthday — to find his biological father. Baskin said he served the woman with the lawsuit on Wednesday and hopes to take her deposition within two weeks to find the father.
"I need to get that information and the information wasn't forthcoming," he said.
You can reach Steve Pardo at (586) 468-3614 or spardo@detnews.com.
© 2007 The Christian Science Monitor Online
Reproduced under the Fair Use exception of 17 USC § 107 for noncommercial, nonprofit, and educational use.
February 9, 2007 — Sixteen months after his divorce, Richard Parker made a devastating discovery in Fort Lauderdale, Florida. A DNA test revealed that his 3-year-old son had been fathered by someone else.
Mr. Parker immediately filed a lawsuit claiming fraud by his apparently unfaithful ex-wife. He took his case all the way to the Florida Supreme Court.
Last week, the Florida justices ruled 7-0 against him. They said that Parker must continue to pay $1,200 a month in child support because he had missed the one-year post-divorce deadline for filing his lawsuit. His court-ordered payments would total more than $200,000 over 15 years to support another man's child.
"We find that the balance of policy considerations favors protecting the best interests of the child over protecting the interests of one parent defrauded by the other parent in the midst of a divorce proceeding," writes Justice Kenneth Bell for the court.
"We recognize that the former husband in this case may feel victimized," he writes. He then quotes a scholar to explain the ruling: "While some individuals are innocent victims of deceptive partners, adults are aware of the high incidence of infidelity and only they, not the children, are able to act to ensure that the biological ties they may deem essential are present."
The Parker case illustrates an increasingly contentious debate over the rights and responsibilities of divorced fathers who have been duped and don't challenge paternity at or near the time of divorce. But it also raises fundamental questions about the nature of fatherhood and the legal responsibilities that can attach to a father-child relationship — even when that relationship is the result of fraud and deception by a wife and mother.
Most states have laws that permit courts to order men who have been deceived to continue to make child-support payments even when they have no biological connection to the child. The idea is to minimize any disruption in the life of the child. In recent years, some states have begun passing laws that give deceived dads some ways to fight back.
There are no reliable estimates of how often "paternity fraud" takes place. Some findings suggest 4 to 10 percent of fathers, but no definitive study has been completed.
Unlike most duped ex-husbands in the US, Parker may still prevail in court. Last summer the Florida legislature passed a law that allows men to use newly discovered paternity evidence (like Parker's DNA test results) to overturn a court order to pay child support for someone else's child.
The June 2006 law is aimed at preventing the kind of outcome ordered by the Florida Supreme Court. The policy approach taken by the Florida Legislature stands in sharp contrast to the "policy considerations" cited by the state supreme court justices.
Supporters of the Florida law see it as a major step toward justice for deceived ex-husbands. Critics see it as a potential danger to the well-being of mothers and their vulnerable children.
In addition to Florida, Ohio, Georgia, Maryland, Alabama, Indiana, Virginia, Arizona, and Wyoming have laws allowing ex-husbands to overturn a child-support order when deception or fraud by an ex-wife is discovered, according to the National Conference of State Legislatures. By contrast, most other states set a one- to four-year deadline for fathers to file lawsuits challenging paternity determinations.
The idea behind the deadline is that any action taken in a marriage breakup should be completed while the child is as young as possible to avoid a major disruption during the most formative years.
"We don't want a system where a child is 10 years old and you have people who come in and undo what has been put in place many years before," says Susan Paikin of the Center for the Support of Families in Silver Spring, Md.
Ms. Paikin says that it is up to the adults in the relationship to thoroughly investigate any paternity issues at the time of the divorce.
But fathers' rights advocates say that few husbands are aware of a paternity deadline and its legal implications. And many have no idea that their wives have been unfaithful.
In generations past such infidelity might have gone undetected. But the advent of DNA testing is changing that. It is giving new momentum to a debate over how best to provide for broken families.
"There is no perfect answer," says Paikin.
"There are a lot of people who will argue that it is always in the child's best interest to have a relationship with the biological parent and that should override everything else. There are others who believe just as fervently that being a parent has more to do with being caring and nurturing, and that is what makes you a father."
Part of the difficulty in paternity disestablishment cases is that once the financial contribution of the nonbiological father is terminated, the courts do not recognize a legal right to continued contact between the child and the man.
"It is the ultimate Catch-22 for my client," says Parker's lawyer, Scott Lazar of Miami.
"On the one hand he has a relationship with this child and cares about this child and would probably be willing to provide money for this child, but he doesn't want to provide it to the mother to use as she wishes."
Family court judges aren't interested in fostering a continuing relationship between men and the children of their ex-wives, says Carnell Smith, who runs a DNA-testing company and is founder of Atlanta-based US Citizens Against Paternity Fraud. "The court is only concerned about financial payments."
Judges generally view the man in a divorce proceeding as nothing more than a "walking checkbook," he says.
Smith says that instead of targeting deceived ex-husbands, the legal system should investigate the conduct of the wife and hold the mother and biological father responsible for the child they produced.
"In no other area of the law do we punish the victim for the conduct of two other people," Smith says. "For me it is disingenuous for the Florida justices to turn around and say [to Parker] 'Well, it is your fault that you didn't find out sooner.'"
The Florida legislature tried to balance the law to avoid forcing children onto welfare rolls, says Tom Sasser, chairman of the family-law section of the Florida Bar. It rejected a proposal to allow ex-husbands to recover prior child-support payments. It also rejected a proposal to allow triple damages against deceptive mothers. Instead, the law allows ex-husbands to be released from future payments.
And that, advocates say, opens the door for some ex-husbands to attempt to build a trusting relationship with someone new and perhaps start a family without the burden of a court-imposed financial debt hanging over his new wife and children.
© 2007 The Kansas City Star
February 13, 2007 — Once again, Missouri judges have ordered a man to pay thousands of dollars in child support for a child he didn't father. This time even the child's mother agrees the man is not the father.Yet a state agency says he is, because he was married to the woman when she gave birth. The state wants David Salazar thrown in jail, and an appeals court on Tuesday agreed. His lawyer, though, hopes that a higher court will rescue the Buchanan County man and others like him caught in a national issue that pits fairness for men against what is considered best for children.
Many men nationwide get trapped into paying child support because they do not contest paternity before state-set deadlines. Several states recently have changed laws or are considering changes that would allow men to introduce DNA evidence after the deadlines have passed. A bill pending in the Missouri Senate would allow that here. In the case decided Tuesday, David Salazar and his wife agreed that they separated 14 months before she had a baby girl by another man in November 2001. But the couple was too poor to pay for a divorce, his attorney said. A hospital clerk ordered the mother to list Salazar as father on the birth certificate. The Missouri Division of Child Support Enforcement named Salazar the father without DNA testing. Salazar did not attend a hearing to contest the paternity finding. A Buchanan County judge later found him guilty of not paying $278 a month in child support and sentenced him to 28 days in jail. Salazar appealed, but lost Tuesday in a 6-5 ruling by the appeals court in Kansas City. He could not be reached for comment.
In most states, a reputed father has a short time to contest findings that he is a parent. In Missouri and Kansas, that period is one year. Child support usually must be paid until children turn at least 18. Laura Donaldson, assistant Buchanan County prosecutor, said judges followed a clear legal process designed to financially provide for children. "When you fail to contest an issue," she said, "we assume you're not serious about contesting it." Even though the mother, Shannon McClure, told officials that Salazar was not the father, she could have been lying because he threatened her — there was no way of knowing, Donaldson said. [The "abuse excuse" is ever present.]
Assistant public defender Merle Turner said she would appeal to the Missouri Supreme Court. Her client never finished high school, could not afford a lawyer or a divorce and could not understand or deal with the administrators, she said.
Chief Judge Victor Howard, writing for the appeals court majority, noted that Salazar did not attend paternity hearings. At trial before a judge in 2004, Salazar admitted he had not paid child support. He was not allowed to give a DNA sample at that point, because by then he was considered the father by law. Judge Ronald Holliger wrote the dissent. "David Salazar is now held to be the father of A.S. (the child) for all purposes and all time," he wrote, "despite both mother and father's statements to the contrary and without any determination of that relationship by a court of law."
If convicted again for nonpayment, Holliger noted, Salazar could be guilty of a felony punishable by four years in prison. And by now Salazar owes more than $13,000 in child support. Yet only the child support division — never a judge or evidence — named him the father, Holliger noted. The administrative order should not settle the paternity issue, Holliger contended, and its finding that Salazar must pay child support should not be enough to send him to jail for nonsupport.
Many cases of non-fathers paying child support do not become public because the files are sealed. In 2005, The Kansas City Star reported on two other men who lost such court battles.
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| Chapter 7 — Paternity Fraud Epidemic |
| Next — Injustice By Default by Matt Welch |
| Back — Who's Your Daddy? by Cecily Ruttenberg |