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]

Someday you will address the issue of why you think you can ignore a commitment to an innocent Child who did not deceive you or defraud you, simply because you have a legitimate grievance with a another individual.

Many years ago when I was a very young man, I had a summer job as the evening manager of a phone bank. That's where a bunch of people sit in a room with phones, bothering other people at home asking for money. We worked for a publisher who had promised an organization free conference booklets because we would finance them through advertising. The particular organization is well known and has an excellent reputation. They do a lot to help needy children even though that's not something that's directly tied to their basic identity. We were calling to ask people to place a small professional ad in the conference booklet to help pay for the booklets.

So of course sometimes when someone asked, why should I help them? we'd say a few things about how good the organization is and one of the things they do is help children.

Now there was this woman who worked on the evening shift who wasn't doing very well. Everyone worked on hourly plus commission, so of course that didn't make her very happy. That was about to change. One evening she started sounding much more emotional in her appeal. And before too long, I heard her say; "It's for the children." Boom - $50 ad just like that.

I hadn't been listening too closely when I heard it. I just said, calmly and politely, as if instructing (one of the manager's duties) so that everyone was sure to hear, something like "We are asking for ad money to fund a conference booklet. None of the money goes to children." She nodded and everyone continued working.

Then I started listening a little closer. There it came again. "It's for the children." This time I could see that she wasn't really giving an honest pitch. So, I said somewhat more directly and in kind of a managerial tone; "The money isn't for the children. The organization helps children, but that's not what the money is for. We can't say that we're collecing money for children because that's not what we're doing." I reminded her that the company had provided a script and suggested she work with that text for a while.

She got a couple of rejections and then, there it came again. "It's for the children." So I called her into the private office and did some counseling, making her promise not to mislead people. She promised and went back to work.

Well, I couldn't believe my ears. It came a couple of more times and that was it. I fired her. I didn't want to fire anybody. People usually don't have that kind of job if they have a much better one to go to. I really didn't want to fire anybody. But I just couldn't get her to stop saying "it's for the children" in order to con people out of money.

Now -- I'm just wondering how long you're going to be saying it.

[Stone Mountain]

"It's for the children."

Hey, we're ALL somebody's children... : )


/simpsons

[frodolives]

Excellent info, gents. Another former child support attorney with her two cents - In Idaho, due process requires actual notice. Yep, putative Dad actually gets the paperwork. These "horror of injustice" situations come up when Daddy disregards important legal papers, responding only when the money flows away.

And between a teenager who has known but one father her whole life, versus an angry, bitter divorced man who just wants to save some bucks, no paternity testing should be allowed on any kid over age, hmmmm, shall we say, ten? Twelve? Consensus?

[RogerFGay]

Fact is, I don't disagree with your impressions. More than once though, I got the impression that the guy (sorry to be so impersonal but I've never really gotten used to the idea of psuedo-names) may be quite young. His way of making "excuses" generally ... like, he just can't grasp the level of responsibility we're talking about.

My comment before though was the kind that I probably should have spent more time creating. It's one of those comments where you know what the point is at the time, but you write it as a cross-over from something else. My point was meant to be in a very general vein. In a general vein, I just think it's worth thinking about -- I mean as part of the general discussion -- thinking about the issue generally.

Statistics works on the law of big numbers. If there are a large number of cases, then the statistics will hold true. We're talking about tens of millions of cases, generally speaking. The conclusion I draw from that is that it's not just that strange things can happen, it's that they do. They actually do. They're happening every year in a population where one percent means 20 to 30 thousand or so. In other words, strange things happen a lot. Strange in this situation is not unusual.

[RogerFGay]

I know.

[RichardW]

Oh, I knew who you were as I bothered to read your posts. I also knew you were grinding your own political ax. Nothing new here. I've heard it all before; the whining, bitching, moaning and groaning. All intended to deflect the blame from the parties who started the ball rolling in the first place. Blame the system, blame the bureaucrat, blame everyone else except the ones who are responsible. As Pogo once said, you have met the enemy and it is you.

[RogerFGay]

But these are people who say they know. They say they've spent many, many years working inside the system: far too many years for any resonable person to believe they're naive and just hadn't figured it out yet; I mean to claim ignorance or just act like they're confused about the way the automated system handles serving notice and that kind of thing. You get the feeling they've spent a long time learning to be dishonest about this one particular subject. Kind of like it's their job to deceive people.

There's precident of course. If you were reading newspapers anywhere in the country during the 1990s, especially the first half, you had to have read quotes from cse officials that were out and out lies. They were doing it to make money -- for themselves. Part of their job was to lie to the public. And now you know, both polticial parties recruit people to get on the internet and participate in online discussions.

[RogerFGay]

Actually, depending on what we're talking about exactly, one percent could be as high as 50,000. With a system designed to create strange cases, and the knowledge that it's designed to create strangeness in a variety of ways, it's very easy to believe that there are at least a million very strange cases that have been created in the US by the current system. Not unusual. Here's a low probability result; one of those strange cases is being exposed in the traditional media:

The bias against male victims

[RichardW]

I'm going to amend one thing I said and that is regarding your paying of support. Of course if you are the custodial step mother of the children of your current husband, obviously you shouldn't have to pay child support to the non-custodial biological mother. (It is conceivable that your husband might have arrears owing) I was making the assumption you didn't want to have your husband paying support for his kids by a previous marriage which is a common situation; one of which I have heard a few hundred times. Having read over your posts, I did not see that you had identified yourself as the custodial step-mother so I retract my statement regarding your obligation to pay support. If so, then I missed it. (This thread is quite long) You went on to say the biological mother doesn't pay support. So what is the story on that situation? So who is dropping the ball now? Is this the bureaucrat's fault? I'm not clear on this. Please enlighten me.

[RichardW]

"In my mind THAT guy, the one that married her when he was an infant and was there for him since then is responsible."

Actually, if the child was born within a legal marriage or within a certain number of days after the marriage ends, then it is possible he would be required to pay support. It would depend on the laws of the state and the statutes of limitations applying. As I recall the laws in Missouri, after five years or so (I could be wrong) then any opportunity to bastardize the child would be lost and the "legal" father would have an on-going obligation just as though he was the natural biological father. The state agency could explain this to you. Note: I have been away from this for a few years and the laws are constantly changing.

[RichardW]

I could go along with something like that. At some point the process needs to end and the parties get on with their lives. 10 or 12 years seems more than enough time for them to get their act together.

[Brytani]

First, my husband was never once in arrears on his child support even when he was denied visitation, was denied any relationship with his sons and accused of abusing his children by his ex-wife - all facts that go to the reason why he won custody after a 3 years legal batter.

If you had read my previous messages you would see where I stated my husband's ex-wife worked during their marriage, but since their divorce has not worked except for 1 six month period at 1 job. She is not paying child support and has not since we have had custody since the judge would not charge her with any financial responsibility to the children (just like when she had custody) because she is not working.

Yes, we could have fought this through the state, but having the kids here, out of the atmosphere they were in and away from their mother (she was stripped of all parental rights) is well worth not receiving a pittance in support from her.

[paulsy]

"Sometimes you have to live with your decisions and deciding not to take a DNA test early in the process is one of them."

i appreciate your response and explaining, but regardless, if at some point the father is proven to not be the child's father, whatever disregard he had for the process, he should not be ordered to continue with child support. i know lawyers typically have a lot of respect for the integrity of the judicial process, and i don't blame them, but truth must always ultimately circumvent the weight of judicial process when the dust settles, and the law needs that kind of flexibility, even though judicial finality is a much preferred commodity.

[meyer]

Ever see the movie "Fight Club"? You should

I reckon I'll be looking for it. Its just my opinion that when ones' contribution to the world is no longer appreciated, one should stop contributing.

I've seen divorce court look at men for quite a while as a walking wallet and that's just plain wrong. I know that isn't true in all situations and there are plenty where the result is just, but it seems that more and more, men get the shaft.

[RichardW]

If she was stripped of her parental rights she no longer has any obligation to pay child support.

[RichardW]

Your "automatic garnishment" is actually a mandatory income withholding and unless the laws have changed since I left all new divorces and support orders carry with it the mandatory income withholding, unless the court rules otherwise. At one time there was a 30 day "grace period" for payments but it was greatly abused. This was further tightened up to effect income withholding immediately. The rent comes due for the custodial parent regardless of when and if the child support paid. The landlord doesn't care if there are mitigating reasons such as late child support. They just want the money.

Incentive payments have been in place since the beginning of the program in 1975. One of the very large incentives were to provide that all states have a modern computer system capable of tracking payments and arrearages. To the layman this sounds unimportant but for the millions of such cases out there it is impossible to track the payments by manual means. Then there are the myriad of methods of collections that were used. Some were paid directly to the custodial parent; some through a circuit or district clerk and then it was up to the state agency to figure out the actual payments and amount due in order for the courts or state's administrative process to determine what was actually owed. Then there was the "income in kind" payments, abatements, emancipation, etc., that muddied the waters. You might have a non-custodial parent come into the office with a grocery basket of receipts and other alleged payments and then the custodial parent's payment affidavits were thrown into the mix. Stir thoroughly with the district clerk's records and you had an unholy mess. Oh, then there were the numerous court orders from different states, URESA orders, temporary support orders and the latest federally mandated and complex system of establishing controlling orders. The last I heard (three years) ago there were some 16 or more "buckets" of places that monies were deposited; such as "conditional" child support payments, etc., having to do when and if the custodial parents were on and off of welfare, etc. It was a trip into the "twilight zone" and is the main reason I opted to retire. I had enough of the bureaucratic nightmare for a lifetime.

If it were up to me I would have the Congress establish a simple set of support guidelines and it would be applicable to whereever the parents moved. It could not be overturned by "foreign judgments" and other legal shenanigans. All of the laws would be uniform throughout the United States and would be simple and easy for anyone to understand. A clear set of guidelines would govern paternity cases; what is a paternity case; emancipation and the like would be the same everywhere. I've never understood why someone should have to pay $50 in one state and $500 in another state or why someone should have to pay more less depending on his or her whims as to where they want to live. People have to have certainty in their lives and all of this variance throughout the U.S. only breeds the cynicism displayed in this thread. Hey, I don't particularly like the IRS; especially when I have to pay up every year. But one thing I know for sure, I wouldn't want to work there. I can only imagine the mess they have to wade through in contested tax cases. Can anyone understand the tax laws? I know I don't and you can't get anyone at the IRS to give the same answer at any given time. We could have a simple flat value added tax and wouldn't have to go through all of this aggravation every year. But until we get a different political system or dismiss the politicians we have sent to Washington we are likely to get more of the same.

[RogerFGay]

I just don't understand what kind of upbringing you had. I've read posts written by people like you in the past, and it's just so bizarre that I can't put my finger on it. Were you invited to live in the US when the Communist coup failed in Russia? It's just impossible for me to believe that you grew up in the US; unless you grew up on the streets with your "family" being a criminal network.

Who do you think you are, deciding what tens of millions of adult citizens in the United States must do regarding their families and their finances? And it doesn't matter what they think, obviously. Who appointed you premier of the Soviet Socialist American States?

[RichardW]

You really should seek professional help. You have a problem. This is not a forum on mental illness and you can't get this help on the cheap. Get help, please!

[RogerFGay]

I've identified your propaganda technique. It's the same one that ACES was using for years. I don't pay so much attention to such groups, but you play it like you've been practicing for a while. In fact, I think I remember reading somewhere that the head of ACES was using the psuedo-name RichardW online. Are you Geraldine Jensen?