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Tuesday, 04 November 2014 23:54

SYMPOSIUM Q: Should Courts Allow DNA Testing to Fix Paternity in Child-Support Cases?

Written by  Insight Magazine
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YES: If DNA is used to free death-row inmates, we should accept it in paternity cases


By Dianna Thompson

In recent years our nation's courts have come to accept DNA evidence as absolute proof of innocence. For example, genetic evidence has been used to free death-row inmates and to exonerate individuals wrongly convicted of rape and other crimes. Even so, courts have been slow to accept DNA as proof when a man contends he should not have to pay child support for a child that is not his.

State legislators have sought to ease the financial burden of welfare payments by demanding that aid recipients name the fathers of their children. Laws that once sought to distribute welfare payments by collecting money from former spouses and lovers have been manipulated into tools for extorting child-support payments from men who did not father the children. 

For centuries, courts followed a rule known as the "presumption of paternity." This tenet of common law states that unless a man can prove that he is sterile, impotent, or was 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 the English incorporated it into common law some 500 years ago.

Despite scientific advances and case law that supports the use of DNA tests as evidence in exonerating the accused, the presumption of paternity remains in practice even today. Because of this, courts have allowed mothers to commit perjury, assigning paternity to former spouses or, in the cases of those never married, former lovers.

Because none of the 50 states requires a mother who files a claim for child support to advise the court or child-support agencies when another man potentially could be the father, thousands of men are paying support for children who may not be their own. This deception has come to be known in legal circles as "paternity fraud." 

Many states have opted to look the other way when it comes to adopting legislation against this type of deception. 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 Legislature recently passed a paternity-fraud bill that now awaits the governor's signature.

Several states, including California and Colorado, have similar legislative proposals that would address this growing problem. The California Paternity Justice Act of 2002 (AB 2240) would require DNA testing in cases of disputed paternity. Other states have addressed this problem by limiting paternity challenges: Iowa allows a maximum of three years for such challenges, Colorado allows five years and Louisiana 10 years.

Alaska requires that unwed parents establish paternity through genetic testing. In doing so, child-support orders are issued only to biological fathers. Even so, Alaska remains the only state with such legislation.

Los Angeles County fails abysmally at ensuring that only men who fathered a child may be required to pay that child's support. In 2000 alone, more than 79 percent of the county's paternity judgments were assigned by default, meaning that the suspected father never had his day in court.

Many of the men assigned default judgments for child support never received summonses to appear in court. Because of the prevalence of default judgments, men who have not fathered a child can turn into "dads" instantly when the court enters a default judgment.

Once applied, that label is difficult, if not impossible, to remove. State agencies and district attorneys frequently fight such appeals, challenging anyone who fails to respond to a court summons — even one served to a "last-known" address. This aggressive pursuit of assigning paternity at any cost has ensnared thousands of innocent men mistakenly identified as having fathered children who do not belong to them.

The prevalence of paternity fraud has reached startling proportions. As many as 28 to 30 percent of men tested for paternity learn they are not biologically related to the children they allegedly fathered, according to the American Association of Blood Banks.

The high incidence of default paternity judgments can be tied to economic motives: More than 11 million fathers do not live with their children. Nationwide, child-support collections have grown to more than $18 billion annually. State legislatures long have sought to offset the financial drain of welfare payments made to single mothers by identifying biological fathers who do not live with their children.

State child-support agencies receive federal reimbursements of two-thirds of their administrative budgets, in addition to incentives of 6 to 10 percent for each dollar of child support collected. Under federal guidelines, states must identify the fathers of children whose mothers are receiving welfare benefits or risk losing incentive monies. Federal guidelines also encourage aggressive collection efforts by allowing states to retain the cost of welfare benefits from child-support payments made by the noncustodial parent. Because federal rules do not require DNA testing to prove paternity, states have no incentive to investigate claims of fraud and every reason to fight efforts to disestablish paternity.

Private child-support agencies have similar motives in refusing to acknowledge DNA evidence disproving paternity. Mothers routinely contact private agencies in an attempt to collect past-due court-ordered child support. In enforcing court orders, these agencies routinely collect 30 percent of the past-due amount, in addition to 30 percent of all future payments. Because these agencies enforce court orders, they have no reason to cease collection efforts once presented with DNA evidence refuting paternity. 

The true impact of paternity fraud goes far beyond the dollars collected from men who are not fathers, however. For children facing life-threatening illnesses, such as cancers requiring bone-marrow transplants or other medical emergencies, knowing one's biological heritage can be a matter of life or death. While courts acknowledge and rightfully respect the confidentiality of adoptive parents, the practice of assigning paternity to uninformed and unrelated individuals goes beyond fraud — it potentially places the lives of children in danger. 

Some argue that demanding accuracy in determinations of fatherhood would harm children who have established relationships with men they believe to be their fathers. Make no mistake: In most cases of paternity fraud, the children have never even met the supposed father. Furthermore, court proceedings for assigning fatherhood do not seek to establish a relationship between a parent and a child. Instead, paternity hearings seek to establish only a financial obligation on the part of the alleged father to the child. 

Because states refuse to prosecute mothers who make false claims about their child's paternity, countless men are forced to spend thousands of dollars to clear their names while also supporting children fathered by others. Consider the following cases:

  • The Sonoma County, Calif., district attorney refused to rescind a child-support order against Nick Napoli despite DNA testing that proved he did not father the two children assigned him by court order. The district attorney's office told Napoli that even if they had proof he wasn't the father, they could not reassign paternity without the mother's consent. Napoli now owes $19,180 in back child support for the children.
  • Dylan Davis of Denver learned that 6-year-old twin children were not his following his divorce. Because Colorado allows only five years for challenges to paternity findings, Davis now must pay a total of $145,000 in child support through the twins' 19th birthdays.
  • In June 2000, California's 4th District Court of Appeals ruled that Darin Reeves of Rancho Santa Margarita would have to continue paying child support for a child he did not father. Since 1995, Reeves has paid more than $51,000 in child support and welfare reimbursements, in addition to $11,000 in legal fees that he has spent fighting the finding of paternity. 
  • Dennis Caron of Ohio was jailed for 30 days for refusing to pay child support for a child that DNA tests show is not his.
  • Even the ultrawealthy are not exempt, as MGM mogul Kirk Kerkorian learned when his ex-wife, Lisa, filed court papers asking for $320,000 a month in child support, despite DNA evidence proving Kerkorian is not the father of her child. Kerkorian's ex-wife claimed that he knew of her infidelity and went along with it to improve his public image. 

Interestingly, women from a variety of financial backgrounds provide fraudulent information regarding their children's paternity. Who they name as the father oftentimes depends on their marital status. Married women most often name the men who were their husbands at the time of conception, fulfilling a societal expectation of monogamy. However, unmarried women who have multiple intimate partners most often name the men who will best provide financially for their children. In some cases, mothers will implicate men whom they believe will fill the role of a father to their children. 

When courts allow mothers to pick and choose who will be financially responsible for their children, regardless of true parentage, fraud will prevail. When the truth no longer matters, state agencies tend to decide they have no obligation to seek out biological fathers and refuse to acknowledge DNA evidence disproving paternity.

Yet society long has acknowledged the connection between biological parents and their children. Courts have returned children who were switched at birth to their biological parents after years of living with the wrong parents. In 1972, the U.S. Supreme Court acknowledged in Stanley v. Illinois the right of biological parents to raise their children. Failure to recognize DNA testing denies a child's true father his constitutional right to be involved in his child's life.

Without a doubt, we are a nation in need of fathers. However, fatherhood is a consensual act made by men who choose to have intimate relations or elect to adopt children. It is not a decision that can be made by courts that arbitrarily place financial responsibility for children on unrelated and unwilling men. 

The children are the real victims in paternity fraud. They deserve better than to have their support paid by extortion. Honoring the truth serves the best interests of the children and the community as a whole. 

If courts have concerns about who will pay for a child's upbringing, they should implore mothers to tell the truth about their children's paternity. If courts believe that men should act as fathers to unrelated children, they should appeal to their compassion, not their pocketbooks. 

Thompson, a nationally recognized expert on families and divorce-related issues, is the President and Founder of Women Against Paternity Fraud.

NO: Biology shouldn't always be considered as destiny in child-support cases.


By Jenny Skoble

Since the early 1990s, DNA testing for paternity has been in widespread use across the country. These tests are highly accurate and now can be done without even having to draw blood. In the "buccal-swab" method, saliva is taken from a subject's mouth with a cotton swab. In many states, these tests are performed routinely in the offices of the state's child-support agency.

Easy access to reliable testing now has raised other questions. Should men be allowed to ask for a DNA test at any time, even if the child is long past infancy? Should men be allowed financially and emotionally to abandon children they have helped raise because it later is discovered that they are not connected biologically? 

Until now, most states have placed some sort of time limit on the period in which men can bring evidence of DNA testing to a court to disprove (or prove) paternity. Among the principles underlying these limits are the finality of judgments, which prevents parties from endlessly reopening and relitigating cases, and the existence of a strong incentive for men to make every effort to verify their paternity before family relationships have developed and children become emotionally attached to the people they think are their parents. 

Ever since DNA testing became common, these limits have been under attack by men who believe it is unfair that they have to pay child support for children who are not biologically theirs. Several states have adopted or are considering legislation that would remove all time limitations on the use of DNA paternity tests to show that the man was not the biological father and to have child-support judgments thrown out. These laws would apply to married and unmarried parents alike, and even in cases where the man had functioned as the child's father for many years. 

The California Paternity Justice Act of 2002 (AB 2240), which currently is pending in the State Assembly, not only would eliminate that state's two-year limit on DNA tests, but would provide for the criminal prosecution of a woman who signed a declaration of paternity knowing that she was naming the wrong man as the father. By making stark scientific truth the only deciding factor, this bill ignores human realities.

Legislatures always have had great difficulty regulating the area of family law. Divorce, custody and support issues are extremely emotional for the participants, many of whom have had no other experience with the legal system. Few who go through the process feel fairly treated. There are wide discrepancies in the laws of various states; some states still require a finding of fault for the failure of the marriage before a divorce can be granted, while in other states no-fault divorce laws allow parties to divorce upon request.

There are, however, a few widely accepted principles. One of them is that all parents must take financial responsibility for their children. Unfortunately, in some unusual situations, men do end up paying support for children to whom they are not related. 

In a typical case, a child is born out of wedlock. The mother and the man with whom she is involved at the time of the birth sign papers establishing that man as the child's father. Both parties know the woman's former boyfriend most likely is the father but, not wanting to have him come back into the woman's life, they both choose to identify the current boyfriend as the legal father.

Then, some time later, the relationship falls apart. The mother seeks a child-support order and the man is ordered to pay. So he goes to court to challenge the order, only to be told that too much time has gone by since the birth of the child. He now is barred from using a DNA test to show that he is not the father, and he must continue to pay support.

Unfair? It may seem that way. But what about the child? Regardless of the circumstances of conception, for the child this is the only father he or she has known. If this man disappears from the child's life, the child not only loses his financial support, but suffers the well-known emotional effects of being abandoned by a parent. 

According to the New York Times, Morgan Wise of Big Spring, Texas, found out by chance three years after his marriage ended that he was not the biological father of three of four children with his former wife. At that time, the children ranged in age from 6 to about 12. Wise had custody of the children until shortly before he asked for the DNA paternity tests. Armed with the DNA tests, he went to court seeking an order that ended his child-support obligation. Instead, the court ordered him to keep paying support and cut off his visitation rights with the children when he insisted, against a court order, upon discussing the issue with them. The children, themselves innocent of any wrongdoing, lost the only father they ever knew. 

Proponents of laws such as AB 2240 invoke the cases of men on death row who are released at the 11th hour, thanks to DNA tests showing they are innocent. Those men would have been executed, or at the very least lost their freedom for the rest of their lives. But having to support a child financially hardly is a comparable penalty. 

Fathers'-rights groups invoke the specter of women conspiring to obtain child support by trapping innocent men and using fraudulent birth documents. The only statistic used by supporters of AB 2240 is a figure obtained from the American Association of Blood Banks stating that out of 280,000 blood tests conducted in 1999, the man tested was found not to be the father in 28 percent of the cases. In that same year, according to the U.S. Census Bureau, 3,959,417 children were born in the United States, 33 percent out of wedlock. Clearly, blood tests are not requested in the vast majority of cases but, rather, in instances in which a man has reason to believe he is not the father. A far greater social problem is the significant number of men who do not pay support for children who are theirs. 

AB 2240 assumes that if the father was incorrectly identified, it necessarily is the result of the mother's knowing fraud. The bill takes a particularly punitive attitude, creating criminal penalties for any woman who signed a declaration of paternity knowing that the man she was naming was not the father. So what happens to the child when "dad" gets his paternity and support judgment thrown out and mom is tossed in jail for perjury? It seems obvious that a law that could create virtual orphans is not in the interest of these children or society as a whole. 

The bill also provides that a man who has proved he is not the father can stop paying support, while still continuing his relationship with the child. This would seem to promote a Peter Pan-style fatherhood — going to Disneyland once a year with the kids is fun, but paying support is not. 

The National Conference of Commissioners on Uniform State Laws — a body that includes judges, law professors and child-support advocates and professionals — drafted "model" legislation called the Uniform Parentage Act. It proposes a two-year window for setting aside a paternity judgment in situations where the supposed parents had a relationship. There is no time limitation in situations where the parents had no sexual relationship at the time the child was conceived and where the father "never openly treated the child as his own." In other words, the law provides no time limit for testing when no one reasonably could have believed that person to be the father. This seems a far more reasonable approach to the problem. 

This controversy also should be viewed in the context of today's extended families. The nuclear family no longer represents the norm. Insisting that relationships be governed only by biological ties assumes that our lives should be governed only by science, not by any other factors. 

What about controversial cases in which birth parents gave their children up for adoption and then changed their minds — but not until after the child had lived with the adoptive parents for a period of years? Most people would decry the evil of ripping children away from the only parents they had known in order to serve the higher end of scientific truth. 

The law can address this same problem without hurting children: Men could be given better information about their rights and responsibilities at the time they sign a declaration stating they are the father of children born out of wedlock. They also could be advised of the availability of free DNA testing through the state's child-support agency. In addition, improvement is needed in the quality of the services child-support agencies provide in many states.

In too many cases, men do not receive proper notice of a child-support action being started against them. Therefore, they do not find out about it until judgment has been entered against them. Child-support agencies should eliminate the use of substandard notice methods, which would in turn reduce the use of default judgments that in some jurisdictions account for more than 80 percent of the judgments obtained by the local child-support agency. These protections would not apply for men married to the mother of the children; however, there is no evidence that deception is widespread enough to warrant concern. 

As a society, we promote the importance of children. However, the statistics on child poverty and child abuse, as well as the state of our public-education system, tell a different story. We need to do more than pay lip service to the fact that children are both the most vulnerable members of society and its most important assets. Any laws that affect family life must give top priority to the best interests of children instead of making children suffer for the actions of their parents. 

Skoble is an attorney in Los Angeles and director of the Child Support Project at the Harriett Buhai Center for Family Law, a nonprofit organization that provides family-law and domestic-violence services to low-income clients.

 

Read 14016 times Last modified on Wednesday, 05 November 2014 00:10

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