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.

[A. Pole]

It goes further then that. You can get married, have an affair that ends up in pregnancy, tell your husband that the child is indeed his and even after he finds out the child is not his biological offspring he will be required to foot the bills until the child is 18-25 (depending on the state).

And you can marry the real father while the betrayed previous husband will have to pay. Isn't it the best legal system in the world?

[RichardW]

They should be charged with fraud if they knowlingly and deliberately lied. But if they are giving the best information based on their recollection this is not going to happen. I once had a case where both the mother and alleged father accepted the child as his. He came to my office and had a picture of the child in his wallet and had been helping out support the child. He was about to sign the paternity acknowledgement affidavit but expressed some uncertainty. I asked him point blank if he knew for a certainty he was the father. He was not entirely sure. I advised him to have the blood tests and he relutantly did so. Turned out he was not the father. Everyone was devastated and no one more so than the alleged father. I always advised these men to have the DNA tests unless there was no possibility there could be anyone else. To reverse a case after several years is a numblingly and bureaucratic nightmare. I'd rather have a root canal.

[joathome]

"If all women were tested the numbers would be much lower. That rate is for those who willingly seek a DNA test because they believe their spouse has cheated."

Ah some common sense.

I do hope the Supremes get this one right, though. It's a mockery of justice to force a guy to pay for a child who isn't his. On the other hand, if the mother and father are married, and he has parented this child long term.....complicated, huh? I suppose if he wants visitation as a parent (thereby conceding he is a parent), he could be ordered to pay child support (or, hey, even get custody). Definitely complicated....

[patriot_wes]

Quote of the day...."Being a society governed by the rule of law pre-supposes that the law which judges us is fair. Where the law is used to accomplish an unfair, immoral or unethical purpose, the reality of the law becomes merely a jesters bag of tricks to weigh upon an innocent defendant." - patriot_wes

[RichardW]

One thing to remember is that the purpose of the child support laws came because fathers (mainly) did not all support their children as they and most responsible people believe they should. This also included regular divorce cases and other non-paternity cases. In point of fact, paternity cases were ignored for the most part in the first decade of child support enforcement. Then the laws were tightened up and all cases were to be given equal treatment and specific and onerous timeframes were enacted to ensure this would take place. A typical worker in my office had about 800 cases in their caseload which was far too high to work properly. The feds come in a regular intervals and audit the cases to ensure these cases are worked as per federal law.

Most of the monies collected nowadays is in non-welfare cases. When the monies are paid, it means that many of these mothers and children will not be on the welfare rolls. I should think that in a conservative forum like this it would be welcomed that parents should support their own children rather than the taxpayers. Instead, it has boiled down to this paternity issue where ill informed opinion is substituted for fact and personal attacks on those they disagree with are the norm. We have over 160 opinions expressed here and I doubt if anyone has changed their minds.

[joathome]

"Cosmopolitan magazine's 1980 survey of 106,000 readers (women between the ages of 18 and 34) reported that 50% had at least one extramarital experience. For those over age 35, it jumped to 69.2%."

Considering the type of morality that Cosmo promotes, that's not really surprising. However, many more women don't read Cosmo precisely because of the morality and worldview it promotes. I never had an affair. I also don't read Cosmo.

[waterstraat]

Considering the type of morality that Cosmo promotes, that's not really surprising. However, many more women don't read Cosmo precisely because of the morality and worldview it promotes. I never had an affair. I also don't read Cosmo.

What you say is true. However, I would guess that among women who dont read at all, or who cant read, might also have a very high affair rate. Who knows? We will never know. No one keeps accurate statistics, and the polls vary, but it is higher than most people think. I know many other women who no one would have thought to think of them in an affair, who have had an affair. Some of them were goody-2-shoes for all appearances. Their husbands had no idea, and still dont.

Perhaps some of their husbands are on this board, saying wives dont do that?

[Free the USA]

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.

You didn't read my analogy correctly about the car. The car dealer, a person, sold you the car on good faith; just because you relied on the fraudulent advice of a third party does not allow you to rescind your agreement with the car dealer. Your analogy attempts to equate the person who deceived you and benefited from the transaction with an innocent third party with whom you entered a commitment and who did not defraud you. Find me any case in law where your mistaken reliance on the fraudulent advice of a third party allows you to unilaterally withdraw from a contract with a person whom in no way committed fraud. Just because a third party gives your fraudulent advice does not justify your cheating and reneging on contracts and commitments to others who are in no way guilty of fraud.

[RogerFGay]

I read your analogy. I found your spin incredible. A women has sex with a bunch of guys and then picks one to designate as father whether he is or not, without telling him about the other guys. Or she cheats on her husband and ends up giving birth to another man's child. You want all that to be thought of as dealing "in good faith." Obviously it's not. If he's not the father, he didn't buy the car either. Somebody just told him it was his, and it wasn't true.

And the fact is, and we both know it, that many women and teenager girls get pregnant and then choose their mate. They factor in whether or not he has a full-time job, whether she can dupe him, and that sort of thing. She might know who the father is, or suspect strongly that she knows, but he was just sexy and not somebody she wants to spend years with; maybe not even somebody she'd like to date regularly. She talks it over with her best girlfriend, pick the guy, and carry out the scam. Who's going to be able to prove that if the girlfriend doesn't tell?

You'd like all that to be thought of as dealing "in good faith." Well, it's not.

[RogerFGay]

Richard. I'm getting tired of this. You're lying and you know you're lying.

Divorced fathers had a high rate of compliance with child support orders before the federal reforms and heavy enforcement began. They did support their children. Most of the "collections" your office gets paid for are from non-problem non-welfare cases that would have paid anyway even if your enforcement program didn't exist. It's always been that way.

The total dollar amount of "collections" has increased over the past decade as more people have become enrolled in your system and have had their orders arbitrarily increased. The compliance rate, the percent of what is ordered that is paid, has actually dropped since the big enforcement government enforcement program began because fewer people are able to pay the full amount of the arbitrarily high orders.

There has been no reduction in welfare rolls due to child support enforcement. As a conservative, I'm appalled at the deception, the corruption, the expansion of big intrusive government, the unnecessary and inappropriate expansion of the welfare system, and the enormous pork-barrel waste that the program represents.

If you want to say that expansion of government bureacracy, intrusion, and spending for no honest reason correspond to conservative values you can; but I'm not going to think you any more than a nut case for doing so.

[RogerFGay]

Why can't we just hang the jesters?

[RogerFGay]

To reverse a case after several years is a numblingly and bureaucratic nightmare. I'd rather have a root canal.

That's an administrative problem. If there's too much bureacracy, get rid of the bureacracy. Destroying a man's life because there's too much bureacracy or government workers are lazy is too dishonest for most normal people to even talk about.

[RogerFGay]

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.

Not really. They must cooperate with paternity establishment efforts in order to continue to be eligible. That's why many of them are pulling names and addresses out of phone books -- literally. If they supply the right amount of names in the right amount of time, their checks keep coming. As soon as one of the guys on the list doesn't follow the procedures properly, he's nailed for life. Reading RobertW's posts, a guy who used to work in the system, you can see that's really the way it works. He'll tell you it's all the victim's fault. Men chosen randomly deserve to be forced to pay for children that aren't theirs for 20 years because they didn't operate as perfect components of the bureacratic machine. It's like some kind of reverse Darwinian nightmare. Only the robot-like compulsive paper-pushers survive. RobertW will tell you -- those are the good ones.

[Chemist_Geek]

Hear, hear!

[RichardW]

You have lost your legitimacy. You are rude and ill informed. Simply, you don't know what you are talking about. I'm not going to waste further time with you. Goodbye!

[mountaineer]

Don't worry, he calls everyone he disagrees with a liar, regardless of the amount of child support enforcement experience they may have. He just doesn't like the truth when it offends him. I was an asst. prosecuting attorney handling child support cases for several years, and he accused me of lying about my personal experiences, too - a curious allegation for one who wasn't there at the time, certainly.

[Brytani]

My exact point in this. Here we have the government basically setting up a system of debtors prison, where a person is guilty before they are innocent and there is no way of being judged innocent once the "system" has decided you're guilty, regardless of the evidence provided.

I got to thinking about demanding a person payback the state for welfare payments made to a custodial parent. Did some checking and found out some interesting things. First, the money that is forced to be repaid is charged 100% to the non-custodial parent and the repayment is based on the funds given for both the child(ren) and the custodial parent. So in reality, the non-custodial person has his paycheck taken from, plus is forced to file taxes every year to pay for people on welfare, then is forced to not only pay 100% of the costs associated with the child but also pay back 100% of the costs associated with the custodial parent.

Incredible, has a single welfare receptient in the US ever been required to pay back a single penny of tax payers money?

I'm of the very simple opinion, if you're capable of having sex, becoming pregnant then delivering a child, you're capable of getting off your butt and working to support 1/2 of the child's needs. So much for equal rights the feminists swear they still don't receive.

[Lord Z]

I'm of the very simple opinion, if you're capable of having sex, becoming pregnant then delivering a child, you're capable of getting off your butt and working to support 1/2 of the child's needs. So much for equal rights the feminists swear they still don't receive.

I agree.

[RogerFGay]

Everybody MUST READ: Speech of the Year:

Senator Anne Cools's speech at the International Fatherhood Conference

[RogerFGay]

Not only that, but they already had a child support setup for reimbursement of welfare payments before the federal reforms. As I've been saying, the federal reforms were not aimed at recovering welfare costs -- even though I know that's what they said it was for. Compliance with child support orders in welfare cases has actually dropped since the reforms. They arbitrarily increased awards in non-welfare cases and "collect" mostly what would be paid anyway if there was no big, expensive, federal enforcement system. Since all payments are counted as "collections" they made the biggest profit on that. That's what the system was designed for as far as the states were concerned. They lied about the whole thing in order to create a fabulous new pork barrel. Since there are plenty of unscrupulous people in government who know a good scam when they see one, it didn't stop there.