Posts tagged ‘Child Support’
Respect a Man’s Choice, Too
By Jeffery M. Leving & Glenn Sacks
In Kai Ma’s recent AlterNet column “The Difference Between a Womb and a Wallet” (7/26/06) she applauds a U.S. District Court judge’s quick, contemptuous dismissal of Matt Dubay’s “Roe v. Wade for Men” lawsuit. Dubay sought to wipe out the child support payments he is obligated to make to an ex-girlfriend who, he says, used a fallacious claim of infertility to deceive him into getting her pregnant.
In opposing “Choice for Men,” Ma asserts that a “woman’s decision to terminate a pregnancy is not the equivalent of a man’s choice to financially opt out of fatherhood.” She cites the pain and discomfort of pregnancy, and the way motherhood “may limit our mobility or careers.” These problems are very real; however, so are the problems created when men are saddled with child support obligations.
According to an estimate in Men’s Health magazine, 100,000 men each year are jailed for alleged nonpayment of child support. Federal Office of Child Support Enforcement data reveal that 70% of those behind on payments earn poverty level wages. The “Most Wanted Deadbeat Dad” lists put out by most states are used both for police actions and to hunt and shame “deadbeats” through newspaper ads and publicity campaigns. These lists are largely comprised of uneducated African-American and Latino men with occupation descriptions like “laborer,” “maintenance man” and “roofer.”
Ma dismisses the burden of child support as being “a few hundred dollars a month.” However, in California, AlterNet’s home state, a noncustodial father of two earning a modest $3,800 a month in net income pays $1,300 a month in child support. The money–almost $300,000 over 18 years–is tax-free to the custodial mother. One can reasonably debate whether this sum is appropriate or excessive. One cannot reasonably dismiss it as being insignificant.
Ma portrays children as a mother’s albatross, forgetting that parenting is also the greatest joy a person can experience in life. Yes, in single mother homes the mother bears the burden of most of the childrearing, but the mothers also experience the lion’s share of the joys and benefits of having children. Noncustodial fathers are not so fortunate—they’re usually permitted only a few days a month to spend with their kids. Once mom finds a new man, they’re often pushed out entirely in favor of the child’s “new dad.”
Ma condemns men who “lie, deceive, break their promises, or pull a 180…who agree to marry but don’t,” and laments that “millions of women” have been “trapped into single motherhood for life with, often, next to no recourse.” Yet according to a randomized study of 46,000 divorce cases published in the American Law and Economics Review, two‑thirds of all divorces involving couples with children are initiated by mothers, not fathers, and in only 6% of cases did the women claim to be divorcing cruel or abusive husbands.
The out-of-wedlock birth rate in the United States hovers around 33%–given the wide variety of contraceptive and reproductive choices women enjoy, this can hardly be blamed primarily on men. Yes, in some of these cases the mother and father shared a relationship which the mother (and the father) may have expected would become a marriage. Yet these relationships fail for many reasons besides male perfidy. These include: youth; economic pressure and the lack of living wage jobs (how many couples fight over money?); and the mothers’ post-partum depression and mood-swings. It’s doubtful that many men really wake up in the morning and say to themselves “my child loves me and needs me, my girlfriend loves me and needs me—I’m outta here.”
Ma says men “shouldn’t be able to choose to abandon that child in the lurch.” Yet 1.5 million American women legally walk away from motherhood every year through adoption, abortion or abandonment. In over 40 states mothers can completely opt out of motherhood by returning unwanted babies to the hospital shortly after birth. If men like Dubay are deadbeats and deserters, what are these women?
Whenever a child is born outside of the context of a loving, two-parent family, there are no good solutions. Ma overstates her case, but she is correct that “Choice for Men” is a flawed solution. However, the current regime, which provides women with a variety of choices and men with none, is also flawed.
Dubay’s conduct is not particularly admirable, and he’s certainly not a candidate for father of the year; however, he does have a point. Over the past four decades women’s advocates have successfully made the case that it is wrong to force a pregnancy on an unwilling mother. Despite the backlash against Dubay, hopefully his lawsuit will result in a greater societal awareness that it is also wrong to force a pregnancy on an unwilling father.
Jeffery M. Leving is the Chairman of the Illinois Council on Responsible Fatherhood. He is the author of the book Fathers’ Rights: Hard-hitting and Fair Advice for Every Father Involved in a Custody Dispute. His website is www.dadsrights.com.
Glenn Sacks’ columns on men’s and fathers’ issues have appeared in dozens of America’s largest newspapers. Glenn can be reached via his website at www.GlennSacks.com or via email at Glenn@GlennSacks.com.
Hounding Low-Income Dads Won’t Pay
By Jeffery M. Leving & Glenn Sacks
Los Angeles County District Attorney Steve Cooley and Child Support Services Department Director Steven Golightly have announced a sweeping new campaign against “deadbeat dads.” They say their new Most Wanted Delinquent Parent list is modeled on the FBI’s fabled 10 Most Wanted list. On paper the 10offenders owe over $2 million, but it’s very questionable that Cooley and Golightly will be collecting much. Golightly’s action is particularly remarkable considering that the California Department of Child Support Services, which supervises the CSSD, issued a report in January that contradicts any possible rationale for this campaign.
According to the CDCSS, there are four primary factors creating child-support arrearages in California: “high child-support orders established for low-income obligors”; “a limited number of child-support orders adjusted downward”; “establishment of retroactive child-support orders”; and “accrual of 10 percent interest on child-support debt.” Over a quarter of these arrears is interest.
Unlike the Most Wanted Deadbeat Parent put out by most states and counties, the CSSD’s list does not contain the occupations of the “deadbeats.” One can understand why.
Nationwide these lists are never comprised of well-heeled businessmen, lawyers and accountants, but instead of fathers who do low-wage and often seasonal work, and owe large sums of money, which they could never hope to pay off. It is rare to find a person with even a college degree on these lists.
In recent years there have been several highly publicized actions similar to CSSD’s, generally coupled with arrests.
For example, Virginia’s Most Wanted list was topped by a laborer, a carnival hired hand and a construction worker, who collectively somehow owed over a quarter-million dollars in child support. Similarly, Kentucky’s list during its campaign sported only one obligor with an education, and the most common designation for occupation was “laborer.”
How do men of such modest means end up with such fantastic arrearages? The child-support system is largely impervious to the economic realities working people face, such as layoffs, wage cuts, unemployment and work-related injuries. According to the Urban Institute, less than one in 20 noncustodial parents who suffers a substantial drop in income is able to get courts to reduce the support obligation.
To Cooley’s and Golightly’s credit, they did explain that some of the “deadbeats” they’re pursuing may be able to use California’s Compromise of Arrears Program. COAP allows some obligors to settle their artificially inflated paper debts to the state for realistic amounts.
The problem is there has been little outreach done on COAP, so few obligors are aware of it. Fewer than 5,000 have used it since its inception in 2003. Moreover, it’s unlikely that those on the list will view the Most Wanted approach as much of an invitation to turn themselves in.
Golightly says he’s doing this so the “deadbeats” will “take care of their children.” This is misleading, because 70 percent of California’s child-support debt is owed to the state, not to custodial mothers and fathers.
It is understandable that taxpayers want money spent on welfare benefits to be repaid. Yet it makes little sense to hound low-income fathers, particularly since research shows that in some cases, were it not for child support, the men would still be playing a role in their children’s lives.
The Cooley/Golightly approach may be good politics, but it’s counterproductive policy.
Expert Says Child Support Poll Results Show “Crack” in Court System
By Michele Bush Kimball, Ph.D.
A recent poll shows that custodial parents are not receiving their child support payments.
Almost half of the poll respondents, 43 percent, said they are not receiving one dime of court-ordered child support payments. The poll, conducted by GFK Roper and commissioned by Divorce360.com, further illuminated the discrepancy
– just 25 percent of custodial parents are receiving their payments. Of the rest,
17 percent, are getting some of the payments, but not getting all they are due, 6
percent are fighting to get child support.
The independent polling agency spoke by phone with more than 1,500 people.
The margin of error for the study is plus or minus 2.6 percent.
Part of the issue is that noncustodial parents, who are not living full-time with
their children, don’t like paying child support, according to Brette McWhorter
Sember a former family law attorney and author of several books about divorce,
including “The Divorce Organizer & Planner,” and “Child Custody, Visitation and
Support in New York.” She said she thinks noncustodial parents don’t see how
the money they pay goes directly to the care of their children. “I believe child
support is essential, but from the point of view of the person paying it, it seems
as if it benefits the other parent more than the child,” Sember said. Those who
are not receiving the child support should be prepared to ask the court for help
getting the money, Sembler said. “You need to become familiar with the court
system and learn how to use it,” Sember said. “You need to get the child support
paid through the state enforcement agency when possible so that they can make
sure it is paid.”
Sember said the discrepancy between what’s ordered by the court and what is
actually received can be attributed to many factors, from resentment about
paying at all to frustration that the custodial parent is not using the money in the
way the noncustodial parents wants it to be used.
NONPAYMENT AS EXCEPTION?
Sari M. Friedman, the general counsel of a New York Fathers Rights Association, said the poll results are not indicative of what she sees. Friedman said most noncustodial parents are paying to child support. If they are not, Friedman said, it could be because they do not have a job or an income that the state can garnish for child support. Also,
some circumstances make it difficult for the noncustodial parent to pay.
Perhaps the noncustodial parent had a higher income when the divorce decree
was signed and can no longer make the payments. Sometimes, Friedman said, if
the noncustodial parent owns a business, the state can’t see all of the income
earned, and the amount ordered is inaccurate. “People are always exaggerating
their side. And sometimes the truth may fall somewhere,” Friedman said. “It is up
for the judge to believe someone and decide what to order.”
There are many possible scenarios that force a noncustodial parent into the trap
of not making child support payments, and once it starts, it may become an
endless cycle, she said. “And then it becomes like a rat on a wheel, and the
arrears add up,” Friedman said.
Jeffrey Leving, a Chicago attorney who specializes in representing fathers in
custody cases, believes most noncustodial parents pay their child support.
Leving is the author of two books, “Fathers’ Rights,” and “Divorce Wars.” He also
co-authored the Illinois Joint Custody Law, and he gave testimony before both
branches of the Illinois Legislature on Joint Custody, Grandparent’s Visitation and
Child Support Accountability bills.
He cautions that while nonpayment exists, it is also not solely a women’s issue.
“Basically what I see is that custodial parents, whether they are mothers or
fathers, both have issues with nonpayment of support,” Leving said.
“Nonpayment of support is not gender-specific.”
Leving said he thinks some parents don’t pay child support because they tie their
payments to the amount of visitation they are getting. Though support and
custody are separate entities, he said it is hard for some people to look at them
that way. “One parent uses the children as tools to negotiate and tools for
revenge, and the other parent uses his income,” Leving said. “Even parents who
love their children do this, and they don’t realize it. They are just so caught up in
the divorce.”
He said that parents who have more contact with their children are more likely to
pay support. However, the process of divorce becomes so adversarial, that is
difficult to negotiate. “To correct these problems, you really have to use honey
before vinegar,” Leving said. “And if you use honey first, you won’t have to get to
the vinegar.”
And if the honey and vinegar don’t work, “They better get a very skilled attorney,”
Leving said. He said custodial parents must find an attorney trained in marital
law who is willing to be dogged and creative because it is very difficult to get a
noncustodial parent’s financial information. “It’s not easy to collect support if the
noncustodial parent is not going to pay and instead fight you,” Leving said.
decree, said Colette Frey-Bitzas, a certified financial planner from Financial
Planners for Women. In her practice, she often advises clients to make room in
child support payments for their children’s future needs. At first, her clients focus
on their spouses’ current salaries and what percentage they need.
“Unfortunately, there is more to picture,” Frey-Bitzas said.
As children grow, the cost of clothing increases, they may participate in
expensive school activities, they may need dental work or more complicated
medical care and they may attend college and need help with tuition. “Try to be
as detailed as possible and try to leave the door open for things you have not
thought of,” Frey-Bitzas said.
Bitzas said. “The custodial issue is generally one of the primary focus of
attorneys. ‘Let’s make sure the children are settled,’” Frey-Bitzas said. “It’s the
financial issue that carries on in court.”
attributes it to the fact that people are still reeling from the divorce. “They are
emotionally crippled people who need to think clearly. I find initially people
underestimate what is going to happen,” Frey-Bitzas said. “They fail to recognize
that the children are going to get older, and there are going to be additional
expenses.”
back to the court system. It may be financially difficult, Frey-Bitzas said, because
they will need an attorney and will pay more legal fees. But it may be beneficial to
have the court reevaluate the situation. “If financial circumstance changes, you
can go back to the court and have it revisited, and the income can be adjusted,
be it upward or downward,” Frey-Bitzas said.
She said she is not surprised at the number of people who reported that they are
not receiving child support. She said it is common for a noncustodial parent to
disregard the support order. “The piece of paper is worth nothing unless it is
followed through on,” Frey-Bitzas said. “I think there is a big crack in the system.’
in media law. She has spent almost 15 years in the field of journalism, and she
teaches at American University in Washington, D.C. She recently won a national
research award for her work. She can be reached at Michele@MicheleKimball.com.
Immigrant Family Law Rights
By Shahzad R. Khan, Esq.
People come to America seeking new opportunities, new ways of life, and seeking new forms of freedoms. They come with a certain understanding of America. But, they do not understand everything. They come with certain misconceptions that they heard from family members or friends who had previously made the journey. But the most common thing about all immigrants is that they come to America, or to any other new country, with a fear of the unknown.
When the pilgrims left for the new world, they feared what lied ahead. The immigrants who passed through Ellis Island had those same fears. And immigrants arriving today through JFK, O’Hare, LAX or any of the hundreds of ports of entry share many of the same fears as the first immigrants of this country did.
I know these fears, because both my parents were immigrants. I also know these fears because my wife is an immigrant. There is a real fear of the unknown. There is a fear about asking questions. There is a fear about taking action. And there is a great fear that if I do take action, there will be a penalty. Sometimes people from all sorts of cultural communities remain silent about an injustice because of the fear of retribution and the fear that if I ask questions or raise questions that scrutiny will be focused on me and that somehow my immigration status will be jeopardized.
Whether you are a green card holder, a person with asylum status, a person with refugee status or no status at all you do still have rights. You have human rights and rights under the laws of this country and its 50 states.
In family law, the area that I practice in, you have the following legal rights regardless of your immigration status:
Obtaining a Divorce: A divorce is the process by which two people terminate a marriage. Whether you were married in India, Pakistan, Bangladesh or any other country in the world you can petition the court for a divorce in the State of Illinois or any of the other states where appropriate. Remember a person’s immigration status is usually irrelevant when seeking a divorce. There are technical issues that need to be considered before you file for divorce such as residency requirements for the individual state, issues pertaining to whether your current immigration status may be affected by divorce, and grounds necessary to dissolve the marriage. It is important that you consult an attorney before you make a decision to proceed in this direction.
Obtaining an Order of Protection: An Order of Protection is a court order that protects a person who has been abused physically, emotionally, or sexually by a family member, a former or current spouse or significant other or a member of the household. Orders of Protection are not only obtained for adults, but also for the protection of children. Again, no matter what your immigration status may be, there is no restriction in obtaining an order of protection for protection against domestic violence.
Paternity and Child Support: You have the right to determine whether you are the father of a minor child born out of wedlock. The process of determining fatherhood is done through the use of DNA testing of the mother, the alleged father and the child. If paternity is determined, meaning the alleged male is determined to be the father of the minor child, then the custodial parent of that child has the right to seek child support from the non-custodial parent. The non-custodial parent has the right to seek visitation, custody (joint or sole custody) to meet the best interests of the minor child. Again, no matter what your immigration status may be, there is no restriction on filing a petition to determine parentage and to establish parental rights.
Besides the rights stated above, there a numerous other rights that immigrants possess in not only family law but in other areas of law. The key here is to ask questions and not be afraid to ask for help. It is not what you know that can hurt you, but what you do not know. Therefore, study the legal system and educate yourself so you do not end up a target looking for an arrow. Should you need help in any family law matter or you just have some general questions, please contact Attorney Shahzad R. Khan at the Law Offices of Jeffery M. Leving, Ltd., to discuss your rights.
Leonard Pitts’ Column Unfair to Black Fathers, Ignores Reasons for Father Absence
By Jeffery M. Leving & Glenn Sacks
Leonard Pitts Jr.’s recent column “Runaway dads are society’s dregs” excoriates “selfish” African American fathers who “abandon their children [and] harden themselves against their cries of need.” Pitts cites Larry Patterson, Jr., a 19-year-old black father who, after police tried to pull him over, allegedly sped away, smashed his car, and escaped, leaving his infant daughter in the backseat. Patterson is “unique only in degree,” Pitts writes–for black men today, it’s “Every man for himself.”
Pitts’ generalization is unfair. He is correct that some African-American fathers have behaved irresponsibly. However, he fails to see that many black fathers have been driven away by shortsighted, angry mothers and a family law system which does little to protect fathers’ loving bonds with their children.
When citing the reasons for father absence, Pitts mentions “divorce” only in passing. Yet divorce and the breakups of unmarried couples are major causes of African-American fatherlessness.
Despite the stereotype of the feckless and irresponsible male, research shows that the vast majority of divorces are initiated by women, not by men. Even for unmarried couples, it’s doubtful that many dads wake up in the morning and say to themselves, “My child loves me and needs me, my girlfriend loves me and needs me—I’m outta here.” Yes, some mothers have good reasons for these breakups. Yet, as Jonetta Rose Barras, the African-American author of Whatever Happened to Daddy’s Little Girl, explains, many black fathers are simply being “kicked to the curb.”
When a divorced or separated mother does not want her children’s father around anymore, she can usually push him out, particularly if the father does not earn enough money to pay for legal representation. Courts tilt heavily towards mothers in awarding custody, and enforce fathers’ visitation rights indifferently. In most states, mothers are free to move their children hundreds or thousands of miles away from their fathers, often permanently destroying the fathers’ bonds with their children.
The system which allows women to easily obtain domestic violence restraining/protection orders was set up to help battered women. However, many mothers instead employ them to get rid of inconvenient husbands or boyfriends. The Family Law Executive Committee of the California State Bar and family law professionals in various states have recently noted that these orders are often issued with little or no evidence or due process. Once in force, a father can be arrested and jailed for violating the order if he visits or even calls his kids. The orders begin as temporary, but are sometimes extended for years at a time.
With divorce or separation comes child support. The Urban League’s 2006 report on the state of black America concluded that the child support system and its abuses often drive African-American men out of their children’s lives, and either underground or into crime.
Half of uneducated African American men ages 25-34 are non-custodial fathers. Many of them are still a part of their children’s lives. Yet the child support they struggle to pay usually does not go to their children, but instead goes to the state to reimburse the cost of public assistance, including welfare, for the mother and children.
Some fathers even live with their children and their children’s mothers, yet their wages are still garnisheed to pay child support to the state, greatly contributing to the breakdown of these fragile families. Democratic Party presidential candidate Hillary Clinton recently acknowledged this problem in her Youth Opportunity Agenda.
The benefits that involved black fathers—even divorced or separated ones—can provide their children are substantial. For example, a recent study of low-income African-American and Hispanic families by Boston College found that when nonresident fathers are involved in their adolescent children’s lives, the incidence of substance abuse, violence, crime, and truancy decreases markedly. The study’s lead author, professor Rebekah Levine Coley, says the study found involved nonresident fathers to be “an important protective factor for adolescents.”
There are many reasons why some black fathers aren’t there for their kids. Sadly, there’s nothing we can do to make the Larry Pattersons of the world into good fathers. But there’s a lot we can do to help keep many decent, loving African-American dads in their children’s lives.
Jeffery M. Leving is one of America’s most prominent family law attorneys. He is the author of the new HarperCollins book Divorce Wars: A Field Guide to the Winning Tactics, Preemptive Strikes, and Top Maneuvers When Divorce Gets Ugly. His website is www.dadsrights.com.
Federal Child Support Enforcement Cuts
By Jeffery M. Leving & Glenn Sacks
Democrats, women’s advocates, the National Governors Association, and child support enforcement officials are sounding the alarm over proposed cuts in the federal funds that subsidize states’ child support enforcement efforts. The cuts, which recently passed the House, will reduce federal reimbursement from 66% of the states’ costs to 50% over five years.
According to the Congressional Budget Office, this will lead to $24 billion in child support going uncollected over the next 10 years. Texas Attorney General Greg Abbott and Los Angeles County Child Support Services Department Director Philip Browning are warning that the cuts will mean a drastic reduction in the amount of child support collected. A bipartisan group of senators has penned a letter opposing the cuts, explaining that “in 2004, more than $4 was collected in support for every dollar invested in the program.” All of these claims, however, are based on false assumptions and misleading data.
It is true that federal figures show that over $20 billion in child support is collected nationwide yearly, and that only $5 billion is spent on enforcement. However, the vast majority of the funds collected are not done through enforcement tactics—they’re simply the payments already being made by law-abiding non-custodial parents. These payments will continue to be made regardless of the cuts. The myth that child support enforcement is a bargain was created by incorrectly counterposing total collections with expenditures on enforcement.
In reality, much if not most child support enforcement funds are frittered away in misguided attempts to collect artificially inflated paper arrearages from low-income men who couldn’t possibly pay them. Federal Office of Child Support Enforcement data shows that two-thirds of those behind on child support nationwide earned less than $10,000 in the previous year; less than four percent of the overall national child support debt is owed by those earning $40,000 or more a year. According to the largest federally-funded study of divorced dads ever conducted, unemployment, not willful neglect, is the largest cause of failure to pay child support.
The inflated arrearages are created in large part because the child support system is mulishly impervious to the economic realities working-class people face, such as layoffs, wage cuts, unemployment, and work-related injuries. According to the Urban Institute, less than one in 20 non-custodial parents who suffers a substantial drop in income is able to get courts to reduce his or her child support payments. In such cases, the amounts owed mount quickly, as do interest and penalties.
For example, a recent Urban Institute study found that only 25% of California’s $14.4 billion child support arrearage will be collected over the next decade because the support amounts demanded of noncustodial parents are not realistic. The average arrears owed per debtor is $3,000 higher than the median annual earnings of employed child support debtors. Those in the poorest category have a child support debt amounting to their full net income for seven and a half years.
The “Most Wanted Deadbeat Parents” lists put out by most states demonstrate this problem. In the past few months, “deadbeat parents” have been the targets of highly-publicized law enforcement actions in Virginia, Texas, Kentucky, and Arizona. Yet Virginia’s “Most Wanted” list is topped by a laborer, a carnival hired hand, and a construction worker, who collectively somehow owe over a quarter million dollars in child support. Of all the parents on Texas’ and Kentucky’s lists, only one appears to have an education, and the most common designation for occupation is “laborer.” Near the top of Arizona’s list is a maintenance man who owes $90,223, an unemployed man of no known occupation who owes $54,298, and, best of all, a roofer who owes $240,581.
This week Abbott boasted that he had arrested one of the “deadbeats” on his “Most Wanted” list–Charles Silva, who owes almost $40,000 in child support. Yet it’s doubtful that Silva will be writing a five figure check any time soon–Silva’s occupation is “general laborer.” Far from being lists of well-heeled businessmen, lawyers, and accountants, the vast majority of the men on these lists do low wage and often seasonal work, and owe large sums of money which they could never hope to pay off.
Child support enforcement agencies are notorious for their abusive tactics towards such men, as well as their mind-numbing incompetence, waste, and the incessant computer errors which lead to the persecution of innocent citizens.
It is true, as critics of the cuts say, that the amount of child support collected by child support enforcement programs has increased from $2.4 billion in 1977 (2004 dollars) to nearly $22 billion in 2004. However, most of this increase has nothing to do with enforcement. For one, there are far more children receiving child support now than there were in 1977, in part because of welfare reform, which has obligated the fathers of children on welfare to pay child support to the states. Also, the amount of child support demanded from noncustodial parents rose sharply during the 1980s and 1990s. In addition, whereas most child support used to be paid directly from the non-custodial parent to the custodial parent, today most child support goes through the state systems, creating the illusion of increased collections.
For too long child support policies have been determined by politics instead of common sense; the mantra of “help women and children” has allowed large-scale abuses and waste to go unchallenged. The proposed cuts won’t interfere with efforts to collect legitimate child support, but they will save taxpayers $15.8 billion over the next decade. They will also force some discipline and restraint onto an area of government which sorely needs it.
Jeffery M. Leving is one of America’s most prominent family law attorneys. He is the author of the book “Fathers’ Rights: Hard-hitting and Fair Advice for Every Father Involved in a Custody Dispute”. His website is www.dadsrights.com.
Glenn Sacks’ columns on men’s and fathers’ issues have appeared in dozens of America’s largest newspapers. Glenn can be reached via his website at www.GlennSacks.com or via email at Glenn@GlennSacks.com.
The PATERNITY Question-New Research, Increased Use of DNA Testing Fueling Debate on Paternity Fraud Laws
by Cheryl Macdonald
A study released last month by Liverpool John Moores University in England suggests that 1 in 25 fathers could unknowingly be raising another man’s child. The study concludes that 4 percent of all men are unwittingly bringing up a child they have not fathered.
These statistics are in line with figures available in the U.S. A report issued by the American Association of Blood Banks in 2000 found that nearly 30 percent of paternity tests conducted in the U.S. reveal that the man being tested is not the biological father. Partially as a result of the availability of DNA paternity testing, thousands of fathers every year are discovering that “their” child is someone else’s.
This situation has raised many serious legal questions. Many of these “duped dads” continue to be liable for child support for other men’s children. Are they still responsible? What kind of compensation do these fathers deserve and what punishment, if any, do mothers who intentionally misidentified the father deserve?
More importantly than the legal and financial issues, there are significant emotional consequences when the truth about paternity is revealed. While many men challenging paternity have little or no relationship with their children, some men have loved and raised these children from the day they were born. Finding out the truth about paternity can be emotionally devastating for both “father” and child.
These questions and concerns are at the heart of an ongoing debate about paternity fraud legislation. In the wake of the new technology, the courts have been flooded with ex-husbands and unwed fathers trying to disestablish paternity for children a DNA test proves are not theirs.
But the laws on the books on most states are based on a 500-year-old English common-law doctrine that a married man is always legally presumed the father of a child born of the marriage.
The situation for unmarried men is not much better. They can be ordered to pay child support for children they did not father through default paternity and child support judgments without the alleged father’s knowledge.
Carnell A. Smith turned his personal battle against paternity into a crusade. In 2002, Smith, founder and executive director of U.S. Citizens Against Paternity Fraud, helped pass paternity fraud legislation in his home state of Georgia.
Smith’s case was one of the most high-profile paternity fraud cases to date. Smith, represented by noted Chicago attorney and fathers’ rights advocate Jeffery Leving, even petitioned the Supreme Court to hear his case. Although the Court ultimately denied his request, his case helped bring the issue into the national spotlight.
All told approximately 12 states currently have some form of paternity fraud law that permits a man who learns he is not the child’s biological father to legally disestablish paternity. Several of these are open-ended, such that the man can file his motion to vacate his paternity at any time after the child’s birth. Others have a stricter statute of limitations of two to three years. The statutes also vary with in regards to whether child support arrearages can be erased and also ongoing visitation and parenting time.
However, currently no states allow “duped dads” to be compensated for child support already paid. And although advocates in some states, such as Illinois and Vermont, have introduced bills criminalizing paternity fraud – there are still no real consequences for women who intentionally misidentify the father of their child.
Advocates of paternity fraud legislation see these restrictions on paternity legislations as a grave injustice.
“Ignoring paternity fraud is not different than ignoring DNA testing showing a convicted murderer wasn’t guilty of murder,” said Leving. “Paternity fraud is just as reprehensible as many other kinds of fraud from which Americans need protection. Whenever there is an unlawful, unconstitutional taking of money, those monies should be returned. And even if they can’t be returned, there should be a law that they must be returned. Without that, where is the morality in our society in allowing any type of fraud to exist and allowing the wrongdoer to keep the profits of their actions?”
But opponents argue paternity fraud legislation imperils children by voiding a parent-child relationship that could provide essential emotional and financial support.
“Paternity fraud statutes—predicated on enhanced and cheaper genetic testing—are being used to destroy established, functional families,” stated feminist law professor Melanie Jacobs in a recent article in Amicus, a publication from MSU College of Law. “Simply because we have the means to determine biological parentage with greater certainty does not mean that it is in the best interests of children to do so.”
Some in favor of paternity fraud legislation dismiss claims that tougher laws will allow “duped dads” to legally abandon “their” children. Instead they cite the many cases in which the “dad” does not want to abandon the child he has come to love as his own, but feels pushed out by the system. In one Texas case, the judge ordered a man to pay child support for another man’s three children and cut off his visitation with all of the children.
Advocates for fathers seeking disestablishment of paternity say that the biological fathers should support their children. They contend making men pay child support for the children proven by DNA testing not to be theirs is not in the best interests of children and can deprive children of ever knowing their true biological fathers.
Even with all the heated moral and legal arguments on both sides, ultimately, it might all come down to money. State governments have a vested financial interest in curbing paternity disestablishment. If men who are paying child support no longer have to and authorities can’t find the real fathers, welfare agencies will get the bill for family assistance. Also, under federal guidelines, states must identify the fathers of children whose mothers are receiving benefits or risk losing federal incentive money. In addition, states receive federal funding on child-support orders. Because federal rules do not require DNA testing to prove paternity, states have no incentive to demand accuracy in establishing paternity
In 2002, former California governor Gray Davis vetoed paternity fraud legislation for his state, claiming that the state might not meet federal requirements on collecting child-support payments, putting the state at risk of losing $40 million in federal funds.
In the end it might be easier for child support agencies to financially squeeze the “duped dad” than to find the biological dad, who may not even know he has a child and would welcome the opportunity to step up to the plate and be Dad.
Leving's Divorce Magazine 