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.