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.

[LWalk18]

Why are you blaming this poor kid because you were a sexually irresponisible person at age 17. If you had not had sex outside of marriage you would not have to pay for any "bastards" (an unfortunate term, you and the child's mother were the sinful ones, not the innocent child). You were the one who put your subsequent children in a poor financial position, not this child who had no say in its creation. You're situation is different from a man wrongly accused of fathering a child- the law should catch up with technology and protect their rights. Men like you, however, put themselves in the situation they now find themselves in- what were you doing having sex at 16-17 anyway?

[Free the USA]

Once a father has agreed to support a child that is a commitment that should be fulfilled. Just because the father relied on fraudulent information from a third party does not affect the commitment to the child; the child did not commit fraud. If you bought a car based on the recommendation of some organization like consumer reports and afterwards you discovered that recommendation had been based on the use of Tarot cards instead of the purchase and testing of the cars; could you sue the auto-dealer for a refund? Suing the mother for fraud and reimbursement is one thing but attempting to terminate a contract voluntarily entered into just because of fraud on the part of a third party is counter to justice and the normal operation of contract law.

[RogerFGay]

I'm sorry. I really don't have anything to say in response. I can't imagine how anyone could make such an argument. BTW: re: agreed to .. Did you miss the decade of government promising to "force fathers to pay"?

[FR_addict]

I really think these cases need to be decided on a case by case basis. If a married man is not raising a child as his own, but gets a divorce when the child is still a baby, then I would rule differently than if a man were raising a child as his own and the child thought the man was his/her father, then I think this man should support the child even if it turns out that he is not the biological father. The child's age should be a factor and whether the couple were living together.

[Free the USA]

Have your followed this particular case, the father had clues and the opportunity early to undergo tests but voluntarily accepted responsibility? He did not attempt to discover the truth early on when he had the opportunity, now it is to late to change his mind.

[Mr. K]

30% of all births are 'illegitimate' (defined as father NOT married to the mother), and that includes the 80% for black births... don't flame me folks, it's a fact...

Hey, I wonder if Jesse Jackson knows about this and will speak out against it...

oh, wait- he has one of his own...

[waterstraat]

I really think these cases need to be decided on a case by case basis. If a married man is not raising a child as his own, but gets a divorce when the child is still a baby, then I would rule differently than if a man were raising a child as his own and the child thought the man was his/her father, then I think this man should support the child even if it turns out that he is not the biological father. The child's age should be a factor and whether the couple were living together.

The childs age and whether or not he was raising the child is irrelevent. Being married or not is irrelevent. If the man is the biological father, or if he adopted, then he should be responsible. If he is not the father, then he has zero responsibility, and should be paid back for his historic support if he was frauded if he choses.

On the other hand, a good man would take care of a child, even if it were not his own.

[RogerFGay]

If you bought a car based on the recommendation of some organization like consumer reports and afterwards you discovered that recommendation had been based on the use of Tarot cards instead of the purchase and testing of the cars; could you sue the auto-dealer for a refund? Suing the mother for fraud and reimbursement is one thing but attempting to terminate a contract voluntarily entered into just because of fraud on the part of a third party is counter to justice and the normal operation of contract law.

If you were approached by a car salesman who told that there's a car on his lot that's yours and you have to make payments, and you make them even though the salesman keeps the car; and then you find out that it's not your car and you shouldn't have made any payments, are you required to continue to make payments because you already made some? I think not.

Have your followed this particular case, the father had clues and the opportunity early to undergo tests but voluntarily accepted responsibility?

So what? His decision was based on the false belief that it was his child. He likely bonded with the child emotionally and the emotions of divorce clouded his judgment. The fact remains, the child isn't his. The fact also remains that he was forced to make child support payments, not as the result of agreement but because of the child support laws -- the assertion of state power. If it wasn't for that assertion of power, there would be no issue. He'd do whatever he felt best, then as well as now. Then your argument would make some sense, even if it only applies to the past; i.e. what's done is done. But the future isn't done yet. Your argument that he agrees to it is so obviously countered by the fact that he's fighting it all the way up to the US Supreme Court. You just can't make an honest case out of ideas that are directly opposed by the obvious.

He did not attempt to discover the truth early on when he had the opportunity, now it is to late to change his mind.

So what? You're just talking about procedure; void of substance. It's not his child. That's a fact. It's not going to go away.

[RichardW]

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.

[RogerFGay]

On the other hand, a good man would take care of a child, even if it were not his own.

... if need be. Otherwise, good men leave that to parents.

[RichardW]

"I am a loving father."

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!

[RichardW]

There is more rational thought in the Muslim fanatics than is found in your post.

[Tom D.]

It is not rare to see a situation where the biological father is not the husband of the married mother. What is rare is for the husband to know about it unless the mother says something. What we usually do in those cases is to file a suit against the husband and the alleged father, get DNA testing, and exclude at least one of the men. The reason that we bring the husband into the suit is that this procedure will strip any rights that the husband has as the father of the kid if he is not the biological father. For instance, suppose that a kid grows up and makes a lot of money and then dies without a will, a wife, or offspring. The father of the child would be his heir in that case. On occasion, the DNA shows that neither of the guys can be the father.

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 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.

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

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. For instance, who would have predicted that 40 years after the advent of the birth control pill and 30 years after abortion on demand that our society would have the number of out-of-wedlock births that we have today?

[RichardW]

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]

Your reasoned response is is a gem of wisdom in an ocean of ignorance. I wish I could have worked with someone like yourself when I ran the local child support office. You sound quite dedicated.

[Free the USA]

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, the third party fraud does not negate the primary contract with the child who committed no fraud. I dealt with all of the facts, the child is not his but he assumed responsibility and now has no bases to cancel that agreement since the facts were available earlier and he chose to not act on them.

[Yeti]

There is more rational thought in the Muslim fanatics than is found in your post.

When I wrote it, I thought my post was a brief synopsis of a few of the insights I had gained by years of active research, analysis and personal experience, as related to the some of the social issues underlying the the topic of this thread.

But since you said that, I now realize that I was way off-base, babbling mindlessly on matters about which I have no knowledge and contributing nothing but noise the social discourse on the issues at hand.

Thanks for bringing that to my attention.

[Tom D.]

First, 97% probability is higher than most married fathers have. The 50% prior probability factor is associated with Bayes Theorum of Probability. Learn the math and then do it. What the bottom line is that of the stuff in the kid's blood that was not in the mother's blood, had to come from the father of the child and less than 3% of the applcable male population has that stuff in his blood. My wife and I have three kids. All I know is what I was doing with my wife at the applicable time and what the kids look like. You have those two factors plus you have what is probably the old genetic marker test and not the newer DNA testing which will return probabilities well in excess of 99% in almost all cases.

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.

I run into a lot of people who insist that they have a God-given right to copulate witn reckless abandon, but no obligation to live with the results. Illegitimacy is the most dangerous issue facing this country. We cannot expect parents to raise responsible children when they whine and complain about living up to their responsibilities to those kids. I note that you never deny that you are the father of this kid; your complaint is that despite the fact you were having sex with the mother at the applicable time.

You also complain that the state tried to "stick you" with $36,000.00 in past public assistance payments. That translates to $3,000 per year. I wish that I could raise my children for $3,000 per kid per year. That works out to less than $10.00 per day. You as the father did not pay it, but someone had to, so it was the taxpayers who have paid the freight for raising your child. Those taxpayers include me and I do not like it a bit.

[VOA]

We did the best we could under the circumstances, and in my humble opinion, a damn fine job.

I wasn't slamming anyone enforcing the laws, such as they are now...
I'm sure it's a job that demands a lot of patience and strength.

My point is that if we start overturning criminal sentences (life or death
sentences for murder) based on DNA evidence, it seems to make sense that a man
sentenced to 18 years of child support (whether he answered the summons or not)
should have his sentence/judgment rescinded if he eventually proves he's not the father.

I understand that is a bit of an apple and orange comparison, but the advent of
definitive technology should have as much import as in the former case.