DNA Paternity Fraud Case To U.S. Supreme Court

Men's News Daily ^ | May 31, 2002 | Jeffery Leving

[RogerFGay]

Father Takes DNA Paternity Fraud Case To U.S. Supreme Court

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MND NEWSWIRE

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CHICAGO, IL - Carnell A. Smith is a father who is forced by court order to pay child support for another man's child. This child is neither his biological nor adopted child. Smith has tried to get the lower courts to overturn the child support order, but they have refused.

Carnell Smith is now asking the U.S. Supreme Court to hear his DNA "paternity fraud" case. Nationally renowned fathers' rights attorney and advocate, Jeffery M. Leving of Chicago, has filed an appearance with the high court to represent Smith.

Although this court ruling sounds unusual, it isn't. There are countless men who find themselves in Smith's situation.

Partially as a result of the availability of DNA paternity testing, men are discovering in alarming numbers that children they believed were their biological offspring are not. It was reported that in 28 percent of paternity tests conducted in 1999, the man being tested was not the biological father. Nevertheless, many of these men continue to be liable for child support for other men's children or suffer the consequences of jail.

This can happen to married men because many states adhere to a 500-year-old English common-law doctrine that presumes a married man is the father of a child born of the marriage. Never-married men can find themselves in this precarious position through default paternity and child support judgments. Such a judgment can be court ordered without the alleged father's knowledge. For example, the alleged dad does not show up at court to contest the paternity action because he did not know about the court date. This can result when the alleged father is not personally served notice of the court date by a process server or law enforcement officer.

"The issue is crystal clear. Paternity fraud is just as reprehensible as any other kind of fraud from which Americans need protection. When we condone fraud in paternity DNA cases, we undermine our entire system of justice. It's time to correct this injustice," said Leving.

This is an issue with urgent national significance.

"Paternity fraud is the only crime where the victim is persecuted for the actions of the guilty party," said Smith. "My case is representative of many similar cases nationwide. A correct decision by the U.S. Supreme Court would offer justice and relief to many."

"My petition to the high court argues that the Georgia statute enables the Georgia courts to have the power to force biological fathers to pay child support, but this power does not extend to forcing a non-relative who did not adopt a child to pay," said Smith.

"Making men pay child support for children proven by DNA testing not to be theirs is not in the best interests of children and families. It can also deprive children of ever knowing their true biological fathers," said Leving.

Nationally, this issue has picked up great momentum. Ohio and, most recently, Georgia have passed legislation that allows men proven by DNA testing not to be the father of a child to be released from child support payments. Georgia passed paternity legislation with votes overwhelmingly in favor of releasing non-dads from being forced to pay child support. In Georgia, the legislation passed the House 163-0 and the Senate 45-5. California is currently considering similar legislation.

Leving believes that this U.S. Supreme Court case could bring relief to countless victims of paternity fraud in America and stop the needless suffering of children and families. Otherwise, the laws dealing with paternity and child support issues must be changed gradually state by state, which will be unnecessarily time-consuming and will prolong the injustice.

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Contact:
Jeffery Leving, 312-807-3990, or
Jane Spies, 330-534-8948,
both for The Law Offices of Jeffery M. Leving, Ltd.

[RogerFGay]

You are so wrong. Senator Russell Long was the author of the federal child support laws and the preamble to the laws speaks specifically of the growing federal welfare burden because of the non-support of irresponsible fathers.

Did you really graduate from college?

[RogerFGay]

To: wasfree I can just see from your post how "loving" you are. You are just projecting your own irresponsible attitude onto the taxpayers and/or your children that you don't want to support. You have met the enemy and it is you!

That was obviously a personal attack, and not RichardW's first. He seems like the kind of guy who'd be able to imagine he's doing the right thing -- what with everybody else in the world being so imperfect and all.

wasfree; you have my permission and I expect the vast majority of the community will understand.

[rolling_stone]

If your brother had received a notice, he could have delayed proceedings using the Sailor abd Soldiers Act. I would check on if the notices were actual subpoenas and how they claimed they were served, personal service, publication etc. I hope he had legal aid during time of his problem, but it doesn't sound like it. Maybe he should consider suing the woman for fraud, asking for back payments and punitive damages...

[RogerFGay]

There are a multitude of complex issues that come up when we start bastardizing kids who have presumed fathers.

I wouldn't exaggerate the complexity or completely ignore the child's right to know who his parents are. Many mothers abandon their old husbands to marry the real father and immediately instruct their children to call the new guy "daddy." Yes -- she'll say, this is your real daddy (sometimes even if he's not). In this particular case, the child is wondering why real dad isn't stepping up to the plate, and why real mom is punishing the man who loved.

Someone has said that we need to be most careful before we disguard old, settled traditions, because those traditions often reflect the accumulated wisdom of everyone who came before and we need to be quite careful before chuncking that accumulated wisdom on the strength of what seems logical from very limited experience.

I would say that, but if it were up to me you'd still lose your case (assuming you were making one by imposing emotion mixed with doubt). If I were offering opposing arguments, you just provided the bat for me to hit you with.

What I see more often that I would have imagined is a man whose wife suddenly tells him that he might not be this kid' father refuses to have DNA testing. These men in my mind are great people. Apparently they have grown to love this child that they have raised and want to keep doing it, futhermore, they do not want to put the kid through the agony of what one of these proceedings entails.

Please tell me before I go on -- which side are you on?

[RogerFGay]

Look, it doesn't matter if it is a child support obligation or any other civil matter. If you ignore a court summons the plaintiff is going to get a summary judgment because you didn't show up to present your case. Sorry, but you have no one to blame but yourself in those cases.

RichardW, You haven't figured it out yet, but nobody likes a dictatorial bureacrat. We fight world wars to keep people like that out of our yards and those of our friends. We'll do it again if we have to.

[RogerFGay]

Your analogy of the used car salesman in no way corresponds to a situation where a contract was entered into based on the fraudulent information from a third party ...

My analogy, which was just a correction of yours (shame on you for treating a child like a used car), fits the situation quite well. He didn't enter into a contract to buy the car. Somebody just showed up with one and said it was his. The consequence was that he began making payments. This was obviously the result of fraud and no amount of bureacratic mumbo-jumbo about procedures is going to change that.

[meyer]

Well, if truth be known, if anybody tried to saddle me with the expense of some little b*****d that wasn't mine, I'd quit working, torch the house, and destroy all my possessions before I'd give a penny to the bi**h. I'd rather rot in jail than be enslaved to somebody else. And if enough productive males finally do this, things may change.

All I keep seeing in this thread is people getting screwed over by the system and a couple of apologists trying to defend the indefensible. The system is based on accusations, not facts. It doesn't track the payments to ensure that they even go to the little b*****d in the first place.

The burden of proof ought to be on the accusor like in any other court. The woman ought to carry her share of the burden of supporting the kid as well, but they seem to want her to keep the kids and the guy to pay the full boat. And, of course, by having the kids, she can easily brainwash them to turn against the father as well.

And the college issue??? The kid turns 18; he's on his own just like I was and most kids should be. You want college? Save your flippin' allowance and get a job.

[winodog]

I wouldn't exaggerate the complexity or completely ignore the child's right to know who his parents are. Many mothers abandon their old husbands to marry the real father and immediately instruct their children to call the new guy "daddy." Yes -- she'll say, this is your real daddy (sometimes even if he's not). In this particular case, the child is wondering why real dad isn't stepping up to the plate, and why real mom is punishing the man who loved.

This actually happened to me. I lost the will to live for a time and came very close to dieing. But I found Christ and managed to survive. My common law wife did this to our 2 and a half year old. I will never forget the moment she called me Michael. I asked her why and she said mommy told her I wasnt her daddy and never to call me that again. A few months later they were married and decided it was best if I didnt see my little angel again. That was 8 years ago. I put it in Gods hands. I pray for her everyday.

[TheMole]

A web page of references to paternity statistics. Worth a quick read.

Who's Dad

[RogerFGay]

It just reminds me of the arguments from the anti-western civilization crowd during these years while this system was being put in place. They said who the biological father is doesn't matter. After tons of research studies were dumped on their heads about the importance of fathers, they decided that boys might need a "male role model" now and again. Doesn't matter who; rent a guy.

They don't think it matters who's forced to pay either. Seems once a guy gets a slip in the mail from RichardW, he's suddenly worth a lot less then a "taxpayer." Just that one guy -- and just because RichardW sent him a slip in the mail. Could have been to the wrong address, could have been to the wrong person. Doesn't matter any more than whether or not children live with their own dads.

The state knows best you know. Resistence is futile. It just amazes me though, that the government can find so many sociopaths to hire to get the job done nationwide.

[RogerFGay]

I hope you've been able to move on since then.

[winodog]

TY I have and in some amazing ways, but my heart will never be the same. I can honestly say the worse thing to ever happen to me was the best thing.

[the bottle let me down]

When did the burden of proof shift to the defendant to DISprove his guilt, rather than assuming his innocence? It seems to me that the mother (or the state acting on her behalf) should have to make a case for a man's liability rather than the man defending it.

When the man doesn't show up or participate in the hearing, the only evidence as to the paternity of the child is the woman's say-so. In the absence of evidence to the contrary, cross-examination of the woman, or identification of other possible fathers, the woman's word will establish that the man she named more likely than not is the father.

Look at it this way--I hand you a box and tell you that there is a $100 bill inside it. If there is no other evidence about what's in the box, you have to conclude that, based on what you know, more likely than not there is a $100 bill in the box.

What this means is that the burden hasn't shifted to the man. He does, however, have to show up to rebut the woman's say-so.

[RogerFGay]

Capisco. Je comprends. Ich verstehe. Eu compreendo. Entiendo. 私は理解する。나는 이해한다. 我了解。Jag förstår.

I understand.

[the bottle let me down]

There is one notable exception. Twin brothers cannot be determined who the father is (last I heard.)

That's true, for identical twins--their DNA is identical. For fraternal twins, if one does a sufficiently detailed analysis, one should be able to tell them apart in the same manner that one can distinguish between other types of brothers.

[RogerFGay]

Look at it this way--I hand you a box and tell you that there is a $100 bill inside it. If there is no other evidence about what's in the box, you have to conclude that, based on what you know, more likely than not there is a $100 bill in the box.

I wouldnt' be forced to conclude. I'd as a matter of traditional phrasing, "think outside the box you painted." I don't have to choose whether there's $100 in the box or not. The fact is, I don't know what's in the box.

But that doesn't matter. We're talking about a guy who's proven beyond doubt that there isn't $100 in the box. He might have taken your word for it a few years ago, but now he knows you lied.

[RichardW]

No, you haven't figured it out. If the bureaucrat were setting his or her own rules that would be someone out of control. They operate under the law.

[RichardW]

I can read. You should try reading the origins of the laws and who the author of the legislation was; Senator Russell Long; the son of Huey Long "Kingfish" of Louisiana. As Casey Stengel said, "you can look it up."

[IronJack]

Look at it this way--I hand you a box and tell you that there is a $100 bill inside it. If there is no other evidence about what's in the box, you have to conclude that, based on what you know, more likely than not there is a $100 bill in the box.

That's absolutely incorrect. There are two possibilities: either there IS a $100 bill in the box, or there isn't. Your stating that there is has absolutely NO bearing on whether there is or not. Unless I know you incapable of lying or being misled, your word is weightless in this case. There is no more likelihood of there being a $100 bill in the box than there is of there NOT being a $100 bill in the box.

What this means is that the burden hasn't shifted to the man. He does, however, have to show up to rebut the woman's say-so.

Again, there are two possibilities: the man shows up to "rebut" the woman's accusations or he does not. If he fails to show up, the only testimony falls on behalf of the plaintiff so a default judgment is entered to favor her. If the man DOES show up, he can enter testimony to the effect that he is NOT the father, which should carry as much weight as the plaintiff's testimony that he IS. At this point, the case is balanced. Yet the man must take a DNA test to DISprove his liability for the case to favor HIM. In the absence of that exculpatory evidence, the decision will go to the woman, on testimony no more credible than the man's countering testimony.

That puts the burden of (dis)proof directly on the man, contravening traditional western legal doctrine.

[RogerFGay]

No, you haven't figured it out. If the bureaucrat were setting his or her own rules that would be someone out of control. They operate under the law.

1. No, they don't.

2. A Marine, for example, who obeys an illegal order can be thrown in prison for it, even though obeying orders is one of the most important laws in the Marines.

3. Ethics.

4. Morality.

5. We don't care. Someone compared you to a guy who dumped poison in the showers at Auschwitz. The comparison is all too easy to see. You're just following orders but the excuse isn't good enough. You're not even forced to hold the job you have. That's your choice. There's a difference between right and wrong, and you've chosen wrong.

We have fought world wars to keep people like you out of our yards and those of our friends. We'll do it again if we have to.