DNA Paternity Fraud Case To U.S. Supreme Court

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

[IronJack]

practical facts about societal bias

Word games.

[Lorianne]

It is estimated that 1 in 20 presumptive fathers are not the biological father of a kid. So you are on the mark at 5% except that if the same father has been deceived more than once that number would be deceptive on a per kid basis.

Of course, this is just an estimate, no one knows for sure.

[waterstraat]

A web page of references to paternity statistics. Worth a quick read. Who's Dad

Thanks for the reference. Interesting comment from the mothers about:""It is surprising how often the mother is wrong about the person she thinks is the father,"

http://www.ukmm.org.uk/issues/cheat.htm

In Genetic Testing for Paternity, Law Often Lags Behind Science, New York Times, March 11, 2001 "According to the American Association of Blood Banks, 280,000 paternity tests were conducted in 1999, three times as many as a decade earlier. And in 28 percent of the tests, the man tested was found not to be the father.

At least one in 10 children was not sired by the man who believes he is their father, according to scientists in paternity testing laboratories. Some laboratories have reported the level of "unexpected" paternity to be as high as one in seven when they perform DNA genetic tests on blood samples from supposed parent and offspring. There are now seven government-approved laboratories doing paternity testing. Cellmark Diagnostics in Abingdon is the largest and receives more than 10,000 requests a year. One in five of them is "private" and has not been ordered as a result of a court or Child Support Agency dispute. David Hartshorne, spokesman for Cellmark, said that in about one case in seven, the presumed father turns out to be the wrong man. "It is surprising how often the mother is wrong about the person she thinks is the father," he said. Marriage breakdown and more births outside marriage have increased disputes about paternity and the desire for testing, he added

As strange as it may seem, some Western studies suggest that one out of every 10 children is not the biological offspring of the man officially recognized as the father. One such study is Robin Baker's 1996 book "Sperm Wars: The Science of Sex," which looks at the subject from a demographic angle: "Some men ... have a higher chance of being deceived than others -- and it is those of low wealth and status who fare worst. "Actual figures range from 1 percent in high-status areas of the United States and Switzerland, to 5 to 6 percent for moderate-status males in the United States and Great Britain, to 10 to 30 percent for lower-status males in the United States,

http://www.massey.ac.nz/~kbirks/gender/whosdad.htm

[Jonx6]

Perhaps, if the women had to pay the $150 up front, for each guy she points a finger at, there would be lower numbers of falsely accused men.

[Brytani]

"Women file for divorce far more often than men, and quite often while children are quite young. I'm left wondering how much of a connection there is between their decision to divorce and what we're talking about. Most often, it's said, the husband is surprised and confused when she decides to leave him. Could it be on account of her big secret?"

Here is one thing feminists and feminists groups loath to admit or even acknowledge - yes, women do file for the vast majority of divorce. I've read studies that report over 80% of all divorces are filed by women. Now, what people hear from feminists are that a divorce is filed because the of adultry or battery when infact statistics show very few marriages are actually abusive (and when they are it's about equally drawn 50% abuse by women, same by men) and even less often does adultry actually take place. So they justify this position by lying or completely refusing to admit to the truth. Fact is, in a divorce with children involved money drives who files first, and who usually can make out very well financially from a divorce, hint it's usually not the man.

[Lorianne]

A good argument for universal DNA testing of both parents and the child shortly after birth (after leaving the hospital with the child). That way, any baby-switching problem would be cleared up right away, and any paternity questions would be cleared up right away.

I believe both parents should be DNA matched to the child and their identities placed on the birth certificate.

Presumptive parents should be allowed to decline DNA testing however, they would then not be allowed to contest it later. I would put the a limit of 1 year from the birth of the child or notification of birth of the child. If they decline to get tested before that deadline, neither parent could get out of their obligations to the child.

[the bottle let me down]

The law allows review and adjustment to child support orders every two years whether there has been a significant change in circumstances or not.

Depends on the state. In Virginia, for example, the review may be requested once every three years. The review is limited to "the amount of support ordered," and doesn't extend to entitlement to the support. I'd guess that this is the case in most states: the review is limited in scope and not an invitation to challenge the judgment with respect to paternity.

BTW, I should, however, note that Virginia also appears to have a pretty liberal rule allowing the use of DNA tests to challenge a previous judgment.

An individual may file a petition for relief and, except as provided herein, the court may set aside a final judgment, court order, administrative order, obligation to pay child support or any legal determination of paternity if a scientifically reliable genetic test performed in accordance with this chapter establishes the exclusion of the individual named as a father in the legal determination. The court shall appoint a guardian ad litem to represent the interest of the child. The petitioner shall pay the costs of such test. A court that sets aside a determination of paternity in accordance with this section shall order completion of a new birth record and may order any other appropriate relief, including setting aside an obligation to pay child support. No support order may be retroactively modified, but may be modified with respect to any period during which there is a pending petition for relief from a determination of paternity, but only from the date that notice of the petition was served on the nonfiling party.

A court shall not grant relief from determination of paternity if the individual named as father (i) acknowledged paternity knowing he was not the father, (ii) adopted the child, or (iii) knew that the child was conceived through artificial insemination.

Furthermore, the presumption of legitimacy does go back to English common law and was discussed by Blackstone. It may only have been codified recently, but it is an ancient doctrine.

[the bottle let me down]

Word games.

Nope, just pointing out the difference between the legal question--who has the burden of proof--and biases that affect the ease with which that burden can be met. There is a difference.

[IronJack]

biases that affect the ease with which that burden can be met.

And if those "biases" become absolute, the "burden" shifts accordingly. If the two aren't synonymous, they are definitely joined at the hip.

In any case, the courts' treatment of fathers is not equitable. In any other venue, such discrimination would be intolerable. Yet it is not only tolerated, but encouraged in our legal system, even as that system promotes disintegration of the family structure that should preserve ALL domestic rights -- child's, father's, and mother's. Talk about a manufactured dialectic.

[RogerFGay]

I acknowledged that there were presumptive paternity laws in ancient British common law -- therefore in the colonies. I said that the current laws are not the same; they are a recent invention designed to enhance the flow of money through the child support system.

[RogerFGay]

As to your complaining that you have never seen this child, you have every right to get visitation rights. If you have not done that, then that says volumes.

That's just cold, and stupid. Why don't you keep your prejudices in your pants.

[BearCub]

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.

That's not true. In every other civil case a default judgment would be the outcome.

BUT, a default judgment and summary judgment aren't the same thing. The law (in Texas) specifically says that in a paternity case the mother must present enough evidence to support a summary judgment in order to find paternity by default.

My problem with this idea is that a woman can waltz into court, point the finger at some guy who may or may not even know the proceeding is happening, fail to present any evidence other than her accusation - and the judge in violation of the law finds him to be the father.

[BearCub]

You should try to arrange another DNA test. They are getting better.

They are so easy to do now that they can keep going until they exclude you completely -or- include you to better than 99.9%.

[RichardW]

If proper service is not obtained any judgment can be set aside. The defendant is entitled to know of the court hearing. You should know this.

[RogerFGay]

If proper service is not obtained any judgment can be set aside. The defendant is entitled to know of the court hearing. You should know this.

That's the way it should be. But if you have the experience you claim to have, you know that's not the way it works in child support enforcement. Either you're lying about your experience or you're lying about the way you know the system works.

[Brytani]

"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..."

The notices were served through the mail, which is in perfect compliance with NY law. As for the solider relief act, according to Navy legal aid, the act does not cover child support obligations and not only that, he was not eligable to receive assistance through the militaries legal services since it is their "policy" not to become involved in domestic matters.

My brother at the time hired an private attorney at his own expense. She was given a free of charge attorney to look out for her interests by the state. As the appeals wore on, my brothers income went down, when the money ran out, his chance to get back into court was gone.

According to his former attorney, and other attorneys I've talked to in the NY area, nobody has ever filed a fraud case when it comes to child support and won in NY. The cost to file a case is much more then my brother can afford and with very little chance on winning, he feels it's not worth it.

At this point he's resigned himself to a few simple facts that life isn't always fair, he will continue paying for this child until she is at least 21 and possibly up to the age of 25 if she is still in college at that time. His hope is that the USSC will step in and correct what has happened. It's my hope as well.

[Brytani]

"Assuming that the DNA test shows that the husband cannot be the father and that the boyfriend very likely is the father, the court enters an order finding that the husband is not the father and the boyfriend is."

What do you do when the woman admits the husband is not the father but refuses to give the name of the actual bio-dad? This also does not answer the problem of men who years after a divorce and acknowledge in the divorce/custody papers find out the child is not theres.

"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. It is this type of situation where the old common law almost irrebuttable presumption of paternity of the man married to the mother is valuable. It is my opinion that the court has no jurisdiction to order a DNA test of the husband of the mother absent his consent. A court should not be able to take a kid away from a man who has helped raise him and is still willing to continue raising him and give the child to a man who was slipping around with the man's wife and not doing a damned thing to raise this kid."

I've also known a few men in my life who have had this happen too and even after they found out they were not bio-dad they did not, on their own, stop supporting the child and keeping the child in thier life. While I fully support and understand the desire to do just that, I believe it should be their choice, not forced on them by the state, especially forced on them to the point if something were to happen and their were unable to pay as ordered, they could land in jail for it, have their license(s) seized and have their credit ruined.

With that said, I believe relying on old English Common Law written 500 years ago is ridiculous in this day and age, regardless of the impact is has on the child. Is it fair a child has to go through finding out the person they thought was there father isn't? No more fair then forcing a child to go through a divorce in the first place. It's hardly fair, and unjustifiable legally, to say the victim of fraud should somehow be financially responsible to the perpetrator of the fraud. Remember, child support does not go to the child, it's sent to the mother and no state forces any custodial parent to show how the money is used. In these cases the money train should be cut off while in the best interest of the child visitation and contact should remain. This gives the duped dad the choice if he wants to support a child he did not bring into the world. If mom needs or wants support, she simply has to name the bio-dad and the state can go after him for HIS responsibility.

Cold hearted? Probably - but fair is fair and that is exactly what the laws are supposed to be.

[Brytani]

"If the welfare of the child is so important, the woman should be forced to divulge the father's name.

The only time I know the state forces a woman to divulge a father's name is when welfare payments are involved, so they can go back after the father for repayment.

Finally, what is the result when a known father is literally unable to provide financial support now?

Two comments on this, being financially unable to pay child support does not matter, the obligation remains and continues to build up with penalties and interest added on. Even in the case of loss of job. There is a federal law, and I will look it up if you're interested, enacted about a decade ago that takes away a judges ability to remove past due child support regardless of the reason the support became past due. Example, say a non-custodial parent has a injury at work and their income is reduced substancially by this, they fall behind on their CS obligation it is their responsibility to go to court and ask for a reduction of support. Depending on the area, it can take months to get in front of a judge. During the wait, the child support continues to be past due, even if lower payments are made, yet the judge can not remove the past due even if it took 6 months to get into court.

Secondly, I find it amazing that there are no penalties against a custodial parent who does not financially support their child. A perfect example of this is my husband's ex-wife. During their marriage she worked, after they separated she stopped working and to this day has not held a job longer then 6 months (and that was only 1 job). The state (in this case Texas) is fine with this and there is nothing legally that can be done. In my opinion she is just as much of a deadbeat parent as a man who skips out on their child support obligations. Yet she is safe from government intrusion and/or prosecution. My husband on the other hand would go directly to Jail, do not collect $200 if he had stopped paying support.

Now we have custody of his sons, yet she still does not pay any child support to us, why? Simple, she doesn't work.

"The criminal (woman) should be subject to exactly the same penalties, should she be unwilling or unable to name the biological father."

Personally I see no reason why women are not charged with fraud in situation like this. By their deceit they have devastated two lives, their child's life and their ex-spouse. I can think of no other instance when a person is able to commit fraud for the purpose of receiving money that is not illegal in the US and subject to criminal/civil court procedings, except in the case of paternity fraud.

[RichardW]

I'm not lying and I had 20 years of experience in child support before I retired in 1999. I also had other collection experience and have seen several judgments set aside due to "sewer service." No one benefits from bad service because of all of the aggravation involved.