Military Service Costs Some Men Their Children

By Jeffery M. Leving & Glenn Sacks

Laws granting deployed soldiers special protections against civil legal actions date back to the Civil War. However, few of these protections extend to family courts and family law. As a result, military men’s service to their country often creates the conditions under which they can become victims of terrible injustices. As America’s military commitments in Iraq and Afghanistan persist, it is important to address the family law issues which military men and fathers face.

Some military men’s service costs them their children. The Uniform Child Custody Jurisdiction and Enforcement Act provides that if a parent moves a child to a new state, that new state becomes the child’s presumptive residence after only six months. Because a normal military deployment is six months or more, if a military spouse moves to another state while her spouse is deployed, by the time the deployed spouse returns the child’s residence has been switched, and the spouse who moved the child is virtually certain to gain custody through the divorce proceedings in that new state.

The restrictions on military personnel’s ability to travel, the high cost of legal representation, and the financial hardships created by child support and spousal support obligations make it difficult for returning service personnel to fight for their parental rights in another state. Many struggle to even see their children, much less remain a meaningful part of their lives.

To solve the problem, the federal Servicemembers Civil Relief Act of 2003 (SCRA) (formerly known as the Soldiers’ and Sailors’ Civil Relief Act) must be amended to specifically prohibit the spouses of active duty military personnel from permanently moving children to another state without the permission of the active duty military spouse or of a court. In addition, the UCCJEA needs to be modified to state that the presumption of new residence does not apply if the children are taken in this wrongful fashion.

Another family law problem for military fathers is paternity fraud. According to Carnell Smith, Executive Director of the National Family Justice Association, deployed soldiers are often “targeted and preyed upon” by unscrupulous “father shoppers” who falsely designate absent military men as the fathers of their newborns. He says:

“The military provides a steady, easily garnished income as well as medical care for the baby. It’s hard to contest paternity when you’re thousands of miles away and losing a good chunk of your income to child support. Sometimes the guy ends up on the hook for 18 years of child support simply because he served his country.”

Several states, including Illinois, Georgia, Maryland, and Ohio, have addressed the problem through legislation which allows putative fathers more time and greater judicial flexibility to challenge paternity findings.

A third family law problem exists for fathers who serve as reservists and who have child support orders. Support orders are based on civilian pay, which is generally higher than active duty pay. When called up, a reservist sometimes pays an impossibly high percentage of his income in child support, which hurts his current family. Because those who fall behind in child support are charged stiff interest and penalties, a returning reservist may spend years working to pay off arrearages incurred during his service overseas. Worse, some could even face arrest and incarceration.

Normally when an obligor loses his job or suffers a pay cut he can go to court and request a downward modification. However, since reservists are sometimes mobilized with as little as one day’s notice, few are able to obtain modifications before they leave. These soldiers cannot get relief when they return home because the federal Bradley Amendment prevents judges from retroactively forgiving support.

The solution is legislation like Missouri’s, which requires that reservists’ support obligations be automatically adjusted when they are called up for active duty. The Illinois legislature is currently considering a bill to address this issue.

Navy veteran Taron James, who has joined with 600 other victimized veterans and their families to form the activist group Veterans Fighting Paternity Fraud, believes the injustices caused by current domestic relations law constitute a breach of faith with military men and fathers. He says:

“It’s understood that when soldiers go off to serve they shouldn’t have to worry about being taken advantage of while they’re absent. Some of the guys making sacrifices abroad while being put through the ringer here at home must be wondering why they bothered.”
 

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.

Jeff Leving is one of America’s most prominent family law attorneys. He is the author of Fathers’ Rights: Hard-hitting and Fair Advice for Every Father Involved in a Custody Dispute. Visit his website at www.DadsRights.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.