Posted on 12/26/2002 8:34:04 AM PST by BuddhaBoy
Patrick McCarthy was floored to learn after his divorce that his 14-year-old daughter had been fathered by another man. He was even more stunned to find out that he would still have to pay $280 a month in child support.
"You have to be a stone not to react emotionally to something like that," said McCarthy, 41, a delivery service driver from Hillsborough, N.J. "The thing I found more disturbing was the way they treat you in court."
In New Jersey, as in most other states, children born during a marriage are the legal responsibility of the husband - even if he isn't the biological father.
Now some of these "duped dads," as they call themselves, are waging state-by-state battles to institute "paternity fraud" laws. Fueled by anger and raw emotion, they are forming grassroots groups and pressing for the right to use DNA evidence in court to be free of making support payments for children they didn't father.
New Jersey Citizens Against Paternity Fraud, which McCarthy founded, recently paid $50,000 for nine billboards along highways (and other ads) that show a pregnant woman and read "Is It Yours? If Not, You Still Have to Pay!"
"Why does a man who is not the father have to bear the financial responsibility for fraud?" asked New Jersey Assemblyman Neil Cohen (D., Union), who sponsored legislation allowing men to use DNA tests to disprove paternity and end financial support. The bill recently came out of committee and faces a vote from the Assembly.
But women's groups and child advocates are alarmed by a trend that they say could harm children.
"It's not as simple as, 'This isn't fair, I have to pay for somebody else's kid,' " said Valerie Ackerman, staff lawyer at the National Center for Youth Law in Oakland, Calif. "Families are much more than biology."
It is not known how many men would try to disprove paternity in court, even if they could. An American Association of Blood Bank survey in 2000 of 30,626 paternity tests showed that 30 percent of those taking the tests were not the real fathers.
What is clear is that the law is not on their side. Most states require nonbiological fathers to keep paying child support even if they were deceived by their spouses, based on the 500-year-old legal presumption that any child born during a marriage is the husband's.
For unmarried fathers, if the paternity is not challenged at birth, they generally do not get a second chance to raise the issue.
But more and more states are reshaping these laws. Men have won the right by legislation or case law to use genetic testing to disprove paternity in 12 states. Three more, including New Jersey, have pending legislation that let nonbiological fathers off the hook.
Since 1999, Pennsylvania lawmakers twice turned down similar legislation, introduced after a Reading man, Gerald Miscovich, sought relief from the $537 a month he was paying for a child who was not his. He lost the case and ended all contact with the then-4-year-old boy. Sen. Michael A. O'Pake (D., Reading) plans to reintroduce the bill next month.
Carnell Smith of Decatur, Ga., is one of two men who appealed to the U.S. Supreme Court after lower courts ruled against them. Smith is trying to recoup more than $40,000 from his ex-girlfriend after learning three years ago that her 13-year-old girl is not his. But the Supreme Court declined to hear his case, meaning he must continue to pay $750 a month in child support.
"It's not a gender war from my perspective. It's about truth," said Smith, who founded U.S. Citizens Against Paternity Fraud. His group - whose slogan is "If the genes don't fit, you must acquit" - lobbied for the law that Georgia Gov. Roy Barnes signed in May.
Others have not been swayed. In October, California Gov. Gray Davis vetoed a paternity fraud bill, saying the measure would only delay child support collection and let some biological fathers wriggle out of parental responsibility.
Child advocates agree. They worry that children will be traumatized by losing the emotional and financial support of the person they know as "Dad."
"I would think if there's a close parent-child relationship, then the matter of whose DNA the child is carrying wouldn't matter that much," said Laura Morgan, chairwoman of the American Bar Association's Child Support Committee. "It's too easily reducing parentage to dollars and DNA."
In many cases, a man suspects a child is not his and chooses to raise the child anyway, said Paula Roberts, a lawyer at the Center for Law and Social Policy in Washington. But after a divorce "he has a new wife and she's saying, 'Why are we paying for this kid?' Now he wants out," she said.
"What kind of damage have we done to the kids if the person they know as their father wants out?"
Some of the new statutes give fathers two years to contest paternity. Men say such deadlines are unfair because women can sue to establish paternity at any time in a child's life.
But Ackerman, with the youth law center, said "you give a person unlimited time to establish paternity, it leaves a child in limbo their entire lives."
Those pressing for the new laws say they do not anticipate wide-scale child abandonment. Cohen, a lawyer who has represented both men and women in these types of cases, said that "when [fathers] have a relationship with their son or daughter, they don't necessarily walk away from the child. They just don't want to have the financial responsibility."
But he has also seen men who were "so angry and upset over being lied to, they walk away," he said.
These non-dads, who network via e-mail and compare hard-luck stories, say the issue goes beyond monthly child support checks.
"To not allow DNA testing is not allowing the truth to come forward," said McCarthy, who would like to see every child's DNA tested at birth to prevent mix-ups. "My contention is every child has a right to know who their biological parents are."
Even though McCarthy's daughter looked nothing like him, he never suspected she was not his until his ex-wife blurted it out during an argument, he said. He used a home DNA kit and a cheek swab to confirm there was virtually no chance the girl was his.
With no legal standing, he continued supporting her and began lobbying for a change in the law. Though their relationship is strained, the girl, now 19, still calls him "Dad," said McCarthy, who lives with his second wife and their two children.
What really galls these men "is the fact that you have to pay support to an ex-wife who lied to you and deceived you," McCarthy said. (Like some other men in the movement, he declined to provide information about his ex-wife.)
One man who would greatly benefit from the new laws is Morgan Wise, of Big Spring, Texas. A train engineer, he was married for 13 years to a woman who had four children. The youngest had cystic fibrosis. After he divorced in 1996, he said, he took a test to see which cystic fibrosis gene he carried.
No such gene was found. DNA testing showed that three of the four children were not his.
"I cried. I got angry, not toward the children but toward my wife," he said.
His wife, Wanda Scroggins, said that he knew "there was a possibility" the children weren't his. She said they both had affairs during their marriage and he agreed to raise the children as his own.
They also agreed to keep the truth to themselves, but Wise told the children one day while they were at school. It cost him visitation rights for two years.
In another blow, a Texas court ruled that he still had to pay $1,100 a month in child support. In January, the U.S Supreme Court refused to hear his appeal.
Recently, Wise began spending time again with the children, but the relationship is rocky.
"If it's your kid, no matter who the biological father is, how does that matter?" Scroggins asked. "He was there when they were born, he changed their diapers, saw their first steps, kissed their boo-boos. How do you just stop that?"
I wonder if this would result in a big surge in abortions, by women scared to death of what would happen if their husbands (or boyfriends, or whatever) discovered that they weren't the father.
My answer is a resounding NO!
Here is why.
Right of association is established in the Constitution. It assumes no liability or responsibility for the mere act of associating with, or NOT associating with another citizen.
If the mother of the child was concerned in the least, then she might have either pressed for marriage, or left the relationship earlier to protect the emotional needs of her child.
There are no laws (except in the states that I mentioned) the require someone who is generous at one point, to be obligated to continue such generosity over the fact of a child becoming accustomed to such largess.
The states that have instituted laws forcing step-parents or boyfriends to support children that are not their own, are acting in a purely un-constitution manner; allowed only because those states have activist judges who don’t care what the constitution says.
The first responsibility of a parent should be to protect their child, so I blame any mother who allows her child to become emotionally attached to someone who is not committed to both mother and child.
I have advised all men to stay away from single mothers for this very reason. Not that single mothers are all bad, but because in certain states, a man can be held responsible for children not his own, merely for associating with her and her children for an extended amount of time.
Women with children need to establish a man’s intentions early on in a relationship, in order to protect their children. If a man isn’t marriage or father material, then what happens next is HER responsibility. If she decides to carry on with a relationship with a man who won’t marry her, then whatever happens after that is her problem, not his.
The fact of a man having a lot of money does not justify him being forced to share it with others. Emotions don’t belong in the law.
Or at least issue an automatic judgement against the fraudulent mother to re-pay the amount of child support extorted when the child turns 18.
The judgement may not be collectable, but if there is now vigorous enforcement of child support, there should be just as vigorous and equal enforcement regarding paternity fraud. However, I am still in favor of the "father" paying support until 18. The child is an innocent bystander in this situation.
I just notice that there are many people made uncomfortable, and I wonder why.
Don’t take that as not wanting responses from women, I welcome and encourage them. I only hope that they remain on the topic, and not reduce the thread into finger-pointing and flame wars.
Great post, and completely true I'm afraid.
A new law to protect fathers from an old law. To mandate paternity tests at birth is to assume the mother is guilty. Neither you nor I would like any laws passed requiring us to prove our innocence. We should not require them of others. Two wrong laws don't make it right, just get rid of the old law.
In Georgia, she is charged with a misdemeanor, and assumes court costs, child support, and she may actually go to jail for a short stay.
Oh man, is that true or what?
It's similar to the "the facts aren't as important as the seriousness of the charges". The whole Clarence Thomas theory. "Men commit sexual harassment therefore Thomas shouldn't be on the SC because sexual harassment is very bad". Whether he actually did it is irrelevant. We have established that it is bad and someone needs to pay. It's the same with the "Not the father but must pay" idea. Whether he is the father is irrelevant because the child needs support.
It would seem so. But I think an unintended consequence would be an increase in abortion. This is a situation that requires the wisdom of Solomon.
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