Posted on 09/12/2007 8:16:16 AM PDT by RabidBartender
David Salazar was jailed for not paying child support - for a girl that isn't his biological daughter.
The Missouri Supreme Court heard Mr. Salazar's case Tuesday, and its decision could have sweeping impact on child support cases throughout the state. Mr. Salazar, a former Buchanan County resident, was found guilty and jailed for 28 days for failing to pay child support for a 5-year-old girl whom no one argues is his biological daughter. Even the girl's mother, Shannon McClure, says Mr. Salazar isn't the father.
But under current Missouri statute none of that matters. If a man is married to a woman at the time she gives birth, a court administrative order can legally bind the man as the child's father, regardless of whether he's the biological parent.
Mr. Salazar's public defender, Merle Turner, appealed the conviction on the grounds Missouri's paternity laws are "antiquated," in part, by not allowing Mr. Salazar to challenge paternity with a DNA test.
"In Missouri, where failure to pay child support can result in a misdemeanor, and even felony convictions and long incarcerations, the state's refusal to use simple, respected DNA testing in situations (like Mr. Salazar's) is inexcusable," Ms. Turner wrote in a brief submitted to the Supreme Court.
"This really only deals with situations where the wife committed adultery," Ms. Turner said in an interview Tuesday after appearing in front of the state's highest court.
Buchanan County assistant prosecutor Laura Donaldson argues the conviction followed the law, since an administrative order deemed Mr. Salazar the father and he failed to fight paternity when given the chance.
"Once such an order has been entered establishing (the girl) as the child of (Mr. Salazar), biological paternity is irrelevant," Ms. Donaldson wrote in a brief submitted to the court.
There's a time frame during which a man can challenge paternity, but after that time lapses, there's no recourse.
Both Mr. Salazar and Ms. McClure said they did not have sexual relations in the 14 months leading up to the girl's birth in 2001, according to court documents. The two were separated but still legally married at the time of the birth.
Mr. Salazar was named as the girl's father on her birth certificate because a hospital clerk insisted her husband's name be placed on the document, Ms. McClure has testified. The two even contacted Missouri's Division of Child Support Enforcement (DCSE) to deny Mr. Salazar's paternity after he was notified that he had financial responsibility for the girl.
But Mr. Salazar failed to appear for a paternity hearing in 2003 and was ordered to pay almost $300 a month in child support. Since he failed to appear, the DCSE director authorized the administrative order establishing Mr. Salazar as the girl's father.
Two years later, Mr. Salazar was charged with misdemeanor nonsupport.
After Mr. Salazar admitted that he knew he was ordered financially responsible for the girl but had failed to make any payments, Associate Circuit Judge Keith Marquart found Mr. Salazar guilty in 2005 and sentenced him to 28 days in jail.
Ms. Turner appealed the case to the Western District Court of Appeals, where Mr. Salazar's conviction was affirmed by a 6-5 margin in February.
There's no timetable for a decision, according to a Missouri Supreme Court representative. If the Supreme Court finds a state statute unconstitutional, the Legislature would be the body that addresses the issue.
During the past legislative session, a bill that would have allowed fathers to present DNA evidence at any time proving that they are not the biological parent and shouldn't be obligated to pay child support failed to come up for a final vote this year.
Attempts to contact Mr. Salazar, who now resides in Kansas City, have been unsuccessful. Ms. Donaldson didn't immediately return a phone message seeking comment.
Obviously these assumptions no long apply.
Mr. Salazar did not help his case by withholing payments that were ordered by the court. $300 a month seems light compared to what he'll have to fork over in legal fees and time spent incarcerated.
My prayers go out for the poor child.
The studies I've seen indicate that the rate of female cuckoldry in marriages was shockingly high in the 50's. They were just more discrete about it.
Exactly. Women have 100% control over whether they have a baby or not. Reliable contraception and abortion (which in most states does not require the father’s consent, not that there’s really a safe, reliable way to confirm who the father is anyway) are always available, and adoption often is (though depending on race and physical infirmities, often the only option is dumping the baby into state foster care, which the state will try to get the father to pay for). If a woman has a baby, and doesn’t have a firm written contract with someone else (husband, father, other) to support the child, she should be on her own financially. Lots of women would learn how to avoid getting pregnant if babies didn’t come with a regular check either from the government, or from a “father” forced by the government.
"The Law is a ass"...
The irony today is that a person can be sent to the execution chamber on the basis of DNA evidence, but it cannot be used justly to satisfy a simple injustice foisted on thousands of innocent men.
Antiquated?
A monumental understatement!
I agree. Apparently the government of the State of Missouri disagrees.
We are in such a mess. Here’s a child who is unwanted, both by her mother’s husband, and her sperm donor father, and she’ll grow up without a father’s wisdom and strength. She will be easy prey for any man who makes her feel wanted. When are we going to wake up and tell women like her mother that she shouldn’t be sleeping around? Moral absolutes are needed to straighten out the mess we’re in.
Sso what if he did? If he has to pay it, he might as well get something back.
If he was properly served, and didn't appear, he probably should have been ordered to pay.
English common law was based on the best tools available at the time, including the "Solomon-like" decision to assume the husband is the father absent clear and convincing evidence to the contrary. If the wife was proven to be adulterous, both the woman and her bastard were banned to fend for themselves.
DNA changed all that...
***Women have 100% control over whether they have a baby or not.***
Self-control on the part of the woman would solve the WHOLE problem. MORAL ABSOLUTES.
The father owes nothing, morally. It’s not his kid.
Every Ping a wanted Ping!
heh heh heh
Thanks
Up to the guy to deal with his problems?? Isn’t he doing so by stating that he is not the father and trying to enforce his rights and innocence in court?
The baby is not his problem. The courts are.
The state’s willing to do that simply so it doesn’t have to pay anything in the form of welfare, or whatever.
Best for the father to get to court and straighten this out. Same for the mother.
The baby-daddy is going to be brought into this eventually.
Actually, probably yes.
I had a "parking ticket" in LA for a car I could prove was in Marin County at 8:30 in the morning and in Sonoma County at 4 pm on that same day. The description of the vehicle on the ticket also did not match my car.
When the LA jurisdiction was challenged, after a couple of months I was told that "there was nothing irregular found about the citation" and I would have to pay. When the bureaucracy is both uncompromising and stupid, such things are inevitable.
I never paid.
No, he’s the father to his own problems here. He married the baby-mommy. He’s gotta’ get himself unmarried and have issues of support settled within the context of a divorce ~ not just the context of a marriage.
A very persuasive argument.
For 18th Century mentalities.
Exactly, which is one of the major flaws of the current welfare system.
I don't see that there's any shortage of people who cannot have children of their own who would be willing to adopt, especially when I see the number of people with foreign adoptions.
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