Posted on 09/12/2007 8:16:16 AM PDT by RabidBartender
David Salazar was jailed for not paying child support - for a girl that isn't his biological daughter.
The Missouri Supreme Court heard Mr. Salazar's case Tuesday, and its decision could have sweeping impact on child support cases throughout the state. Mr. Salazar, a former Buchanan County resident, was found guilty and jailed for 28 days for failing to pay child support for a 5-year-old girl whom no one argues is his biological daughter. Even the girl's mother, Shannon McClure, says Mr. Salazar isn't the father.
But under current Missouri statute none of that matters. If a man is married to a woman at the time she gives birth, a court administrative order can legally bind the man as the child's father, regardless of whether he's the biological parent.
Mr. Salazar's public defender, Merle Turner, appealed the conviction on the grounds Missouri's paternity laws are "antiquated," in part, by not allowing Mr. Salazar to challenge paternity with a DNA test.
"In Missouri, where failure to pay child support can result in a misdemeanor, and even felony convictions and long incarcerations, the state's refusal to use simple, respected DNA testing in situations (like Mr. Salazar's) is inexcusable," Ms. Turner wrote in a brief submitted to the Supreme Court.
"This really only deals with situations where the wife committed adultery," Ms. Turner said in an interview Tuesday after appearing in front of the state's highest court.
Buchanan County assistant prosecutor Laura Donaldson argues the conviction followed the law, since an administrative order deemed Mr. Salazar the father and he failed to fight paternity when given the chance.
"Once such an order has been entered establishing (the girl) as the child of (Mr. Salazar), biological paternity is irrelevant," Ms. Donaldson wrote in a brief submitted to the court.
There's a time frame during which a man can challenge paternity, but after that time lapses, there's no recourse.
Both Mr. Salazar and Ms. McClure said they did not have sexual relations in the 14 months leading up to the girl's birth in 2001, according to court documents. The two were separated but still legally married at the time of the birth.
Mr. Salazar was named as the girl's father on her birth certificate because a hospital clerk insisted her husband's name be placed on the document, Ms. McClure has testified. The two even contacted Missouri's Division of Child Support Enforcement (DCSE) to deny Mr. Salazar's paternity after he was notified that he had financial responsibility for the girl.
But Mr. Salazar failed to appear for a paternity hearing in 2003 and was ordered to pay almost $300 a month in child support. Since he failed to appear, the DCSE director authorized the administrative order establishing Mr. Salazar as the girl's father.
Two years later, Mr. Salazar was charged with misdemeanor nonsupport.
After Mr. Salazar admitted that he knew he was ordered financially responsible for the girl but had failed to make any payments, Associate Circuit Judge Keith Marquart found Mr. Salazar guilty in 2005 and sentenced him to 28 days in jail.
Ms. Turner appealed the case to the Western District Court of Appeals, where Mr. Salazar's conviction was affirmed by a 6-5 margin in February.
There's no timetable for a decision, according to a Missouri Supreme Court representative. If the Supreme Court finds a state statute unconstitutional, the Legislature would be the body that addresses the issue.
During the past legislative session, a bill that would have allowed fathers to present DNA evidence at any time proving that they are not the biological parent and shouldn't be obligated to pay child support failed to come up for a final vote this year.
Attempts to contact Mr. Salazar, who now resides in Kansas City, have been unsuccessful. Ms. Donaldson didn't immediately return a phone message seeking comment.
Let’s get the statute changed legislatively, preferably to relying on the state supreme court just ignore the plain text of the (obviously outdated) statute.
Next time don't marry her!
No state has ever paid a single cent for "welfare or whatever"; ever. The taxpayers of that state have, however.
You hit upon the angle that I’m looking at this -
the incentives that this provides to the people involved.
If this case is ruled in favor of the man who didn’t father the child,
then what will be the future incentive pressure on women considering screwing around?
And then think - what if the decision goes the other way...
No man should have to pay child support for a child he didn’t father or adopt. All laws currently on the books should be amended.
"Ms. Turner appealed the case to the Western District Court of Appeals, where Mr. Salazar's conviction was affirmed by a 6-5 margin in February. "
I have to wonder what they are thinking.
This British law you speak of goes back a millennium, if not more. The notion being that if/when a woman inherited property (no Salic Law in England) she could not physically defend it against the Picts, Saxons, Danes, Celts, Normans, etc. That took a man. Thus when a woman married all her property was surrendered to her husband*. This hopelessly antiquated law -- which may have made sense a thousand years ago -- wasn't repealed till the late 19th cen.
(*And yes, history records more than one woman thrown out of what was now her husband's house/lands.)
If it’s not his child, he shouldn’t have to pay.
She wasn’t pregnant with that child when he married her. What she chose to do after that point, he had no control of. He doesn’t own her.
It was her own irresponsible actions that got her pregnant, let HER deal with it.
If he had married her, knowing that she was pregnant with another man’s child, it could easily be concluded that he was willing to take on the responsibility of fatherhood and being a father to that child. In that case, I’d say, yes, child support would not be unreasonable. If he adopted the child, same thing. Anything else, forget it.
More like Dark Ages. I guess some people just don’t get progress.
‘Mr. Salazar, a former Buchanan County resident, was found guilty and jailed for 28 days for failing to pay child support for a 5-year-old girl whom no one argues is his biological daughter. Even the girl’s mother, Shannon McClure, says Mr. Salazar isn’t the father. ‘
I’d go to jail, or disappear before a single penny went to this nonsense.
Of course you can. The law says that you may not. But the law is not an end in itself, but a means to the end: justice.
That is why courts of equity have always existed, to make decisions contrary to the letter of the law, but clearly serving the spirit of justice.
Specially today, in the dawn of the 21st Century, when all of the underpinnings of the factors that supported the family for many thousands of years have disappeared: morality, religion, family, society, all have devolved into caricatures of their former selves, there is no excuse for injustice. No one can argue that what we are discussing is moral or just. But it is legal!
Carolyn
That would be justice! If the woman protested the husband's name being put on the child's birth certificate and it was put there anyway, maybe he could sue the hospital for the nurse's actions. What she did was fraudulent.
Then again, no one made the mother sign the paperwork, either. She could have refused. I had to send in my daughters' paperwork in order to get their birth certificate(s), because I patently refused to sign anything.....(I knew I was way too medicated :-)
Anyway, the guy had a chance to get it straightened out, but didn't. Now he wants to cry foul?
Ms. McClure should actually do the right thing and agree to write him a check back for the child support every month. I assume the problem is that she wants money from someone and she can’t use the courts to force the actual father to pay. So while she seems to be supportive of her former husband, she wants that money from someone and isn’t willing to give it up.
Neither, just because he married her, is he responsible for her slutty behavior.
The best interests of the child is alway justice between the parents. The courts should remember that.
Imagine if the rest of our criminal court system worked this way. "Oh, sorry, DNA evidence shows you didn't rape that girl after all but, since we found you guilty and the statute of limitations have passed, you'll have to serve the rest of your 20-year sentence. Sucks for you."
FWIW, I don't think the ruling here will change anything. There's too much money at stake to let common sense enter into it.
And of the "system" in general. People have no motivation to take responsibility for themselves and their actions, because *somebody* will pick up the tab.
I wonder how many people know how the child support system actually works.
How it is tied to the welfare grants states receive. Or that if a state does not meet certain shall we say “bench marks” a state can loose its welfare grants from the federal government.
Or that states receive incentive tax dollars for collecting child support. Or that most fathers are not allowed to pay child support directly to the mother. If they did that the state would loose the incentive payments (your tax dollars).
If you are judged to be the “legal father” you must pay the child support, does not matter who the “bio” father is.
An ADMINSTRATIVE ORDER determined he was the father. That does not even mean that it was done by a judge.
“Buchanan County assistant prosecutor Laura Donaldson argues the conviction followed the law, since an administrative order deemed Mr. Salazar the father and he failed to fight paternity when given the chance.”
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