DNA Evidence: Enough to Exonerate Dads?
It's hard to feel sorry for a billionaire whose ex-wife asks for $320,000 a month in child support, even when DNA evidence proves he is not a father.
After all, what is $320,000 to the 46th richest man in the world? Certainly sympathy would be easier to come by if the dollar amount might even put a dent in Kirk Kerkorian's budget. To do so would undoubtedly take far more than thousands of dollars a week for "play dates" and upkeep of a 4-year-old girl whose silver spoon most certainly came encrusted with pave diamonds.
But the real injustice facing the MGM mogul remains that no matter how much evidence he offers refuting paternity -- DNA tests, proof of his sterility -- California's legal system offers little hope that the truth will prevail. For Kerkorian and men of much lesser means, the most credible evidence to refute paternity would be a DNA test, offering a 99.9 percent certainty of whether a man fathered a child. Even though DNA evidence has been used to free falsely convicted murderers, and individuals unfairly convicted of rape and other crimes, courts are slow to accept it as proof that a man should not have to pay child support.
Although this logic defies conventional wisdom, the "presumption of paternity" is a long-standing legal principle. This tenet of common law states that unless a man can prove that he is sterile, impotent, or away from home at the time of conception, he is the legal father of any child born to his wife during their marriage. The Romans first adopted this rule, and later, the English incorporated it.
Instead of acknowledging near-perfect proof of a child's paternity, courts in most of the 50 states rely on 500-year-old English common law, promulgating an epidemic of paternity fraud. Because none of the 50 states require a mother who files a claim for child support advise the court and child support agencies of uncertain paternity when another man could potentially be the father, thousands of men are paying child support for children that may not be their children.
Many states have opted to look the other way when it comes to adopting legislation against paternity fraud. Only two states have instituted legislation that allows men unlimited time to challenge paternity using DNA testing: Maryland, which passed legislation in 1995, and Ohio, which passed its bill in 2000. The Georgia State Legislature recently passed a paternity fraud bill that now awaits the Governor's signature.
Other states have addressed this problem by limiting paternity challenges: Iowa allows a maximum of three years for such challenges, Colorado allows 5 years, and Louisiana 10 years. None of these states require mothers make full and accurate disclosure of potential paternity disputes within the time limits set by states. Alaska requires that unwed parents establish paternity through genetic testing. In doing so, child support orders are only issued to biological fathers. Even so, Alaska remains the only state with such legislation.
In contrast, Los Angeles County fails flagrantly in its success rate in assuring only men who fathered children pay child support. In 2000 alone, more than 79 percent of L.A. County paternity judgments were assigned by default, meaning that the suspected father never had his day in court. Worse, once a judgment is established, it is difficult, if not impossible, to remove.
In his best-selling book "Bias," Bernard Goldberg chronicles the inner workings of the Los Angeles District Attorney's Office and its efforts at obtaining paternity collections. According to Goldberg, then-District Attorney Gil Garcetti obtained default judgments of paternity after failing to notify "fathers" of court hearings. Once the court established paternity, Garcetti refused to rescind judgments against men who later proved through DNA evidence that they were not the fathers of their alleged children.
The case of MGM mogul Kirk Kerkorian and his ex-wife, Lisa, illustrates at the extreme the absurdities of paternity findings:
If DNA proof cannot clear a man's name, what will? Should any man, rich or poor, be legally and financially responsible for a child that is not biologically his?
Do children have the right to know the identity of their biological fathers? Must courts hold mothers accountable when they make false statements regarding paternity?
The emotional nature of the issue clouds the patent reality that paternity fraud is a crime and must be treated as such.
In 1999 alone, almost 30 percent of 280,000 paternity cases evaluated by the American Association of Blood Banks excluded the tested individual as the biological father. Today, California has before its legislature a bill that would correct this injustice. The California Paternity Justice Act of 2002 (Assembly Bill 2240) would require DNA testing in cases of disputed paternity.
Sadly, the nearly 84,000 children who in 1999 learned their alleged fathers were not related are not alone. While bills such as AB 2240 do little to bring peace to these children and their families, they bring them closer to two goals that are equally noble: truth and justice.
Originally published in CNS News in 2002