Posts tagged ‘Visitation’
By Jeffery M. Leving
The death of Duncan and Jack Connolly, two Illinois children allegedly murdered by their father Michael Connolly, touched many people’s hearts. I lament this terrible tragedy. However, as a fathers’ rights advocate and attorney, I regret that this case is now reinforcing the malicious stereotype of the brutal father, potentially sabotaging the efforts of many good fathers who love their children and want to be a part of their lives. The media coverage of this case has pushed the fathers’ rights movement back 10 years.
The fact is that most fathers do not harm their children. Domestic violence is not gender specific. Some mothers have also committed similar unnatural acts. For example, I am currently representing a soldier, formerly deployed in Iraq, who is now struggling to rescue his daughter from the alleged abuse of her mother in Chicago.
Without a careful review of the entire file and transcripts of court proceedings, it is hard to say why the judge in the Connolly custody case made his decision to give unsupervised visitation rights to this father. With hindsight, it appears that the judge’s decision was clearly wrong. But, the current petition to remove that judge from the bench does not seem to solve the problem. The correct method of seeking accountability in such a matter is done through the Judicial Inquiry Board.
Until we know all the facts, I caution against unrestrained emotions which may militate against the rights of good fathers struggling to protect their children. A mother has lost two children; let us support her but not lose our sense of reason.
By Jeffery M. Leving
It’s easy to make mistakes at the very beginning of the divorce process, especially if you’re dealing with someone who is highly manipulative, abusive or just plain irrational. Even if you are divorcing a reasonable person, it’s tough to think clearly and make the right initial decisions. Most people are so angry, upset or anxious at the end of their marriage that they’re not thinking logically about what they should do to protect themselves or their children from an unfair settlement.
In the past, the prevailing emotions during a divorce were usually sadness and regret. Today, anger is the dominant emotion: People are angry at their spouses, their spouses’ parents, at their spouses’ new partners, etc. All this anger translates into words and deeds that make the divorce process more costly, stressful, frustrating, lengthy, and an all out war. It doesn’t have to be that way, even if you are divorcing the most irrational of humans. Below are the 10 most common mistakes men make in divorce. If you can learn to place your emotions in check and avoid these mistakes, you can alleviate some of the pain that comes with any divorce.
#10 – Using Your Children as Pawns
Threatening to limit or deny visitation is a powerful threat, and it can terrify a parent who loves his child(ren). Often, parents who are the primary caregivers, but who lack the financial resources, feel that they must use this threat to gain sufficient financial support.
As painful as these threats are, do not respond in kind. Don’t issue threats of your own. Instead, recognize that in most cases, the truth will come out. If you’ve been a good, responsible parent, your spouse likely cannot deny you a chance to see your kids on a regular basis. More to the point, the court won’t allow it in most instances.
#9 – Thinking Romance First, Divorce Second
The most common factor that turns a normal divorce into an abnormally contentious one is bringing another woman into the mix. The situation is already potentially volatile, and all it takes is the mention that you have a new lover for your spouse to become infuriated.
There are several reasons you may want to announce your new relationship-revenge, one being to show her that someone finds you attractive and you’ve even found happiness. Try to keep a new relationship out of the conversations with your spouse and especially your children. The best decision is to wait until the divorce is concluded before you engage in a new relationship.
#8 – Allowing Your Spouse to Convince You to Not Hire An Attorney
If your spouse has hired a lawyer, you need to hire one quickly. If you don’t, you are an amateur playing against professionals. One underhand tactic is for a spouse’s attorney to offer to represent both parties to save time and money. Not only is it unethical, but it also creates a conflict of interest.
The process is designed to be adversarial, and there is no way a lawyer can fairly represent you both. The odds are that your spouse has something to hide or something she wants, and she knows that if you hire a lawyer it will be more difficult to achieve that goal.
#7 – Using Verbal Abuse
Just about everyone who gets a divorce argues. Not everyone, however, engages in continuous verbal battles in which threats and vile accusations become routine forms of communication. Being on the receiving end of this abuse is demoralizing, especially when the threats raise the possibility of physical harm to you or your children.
You need to discuss any threats of this type with your attorney, who can advise you on how to deal with them. Furthermore, if it is you who’s engaging in the verbal abuse, remember that your spouse can easily obtain an order of protection and any violation of this order can land you in jail. There is a myth that men do not endure verbal or even physical abuse from their spouses, but it is just a myth. Abuse is not gender specific.
#6 – Rubbing Salt In the Wound
If your goal is to avoid a court battle and the high costs that go with it, then you want to avoid any accusations of personality flaws. Be aware of your spouse’s sensitivities and avoid inflaming them. Compromise is the essence of divorce negotiations, and if you say and do things to encourage your spouse to dig in and be inflexible, you’re asking for a war.
No matter how much you despise your spouse; no matter how many ways you feel you’ve been wronged, don’t make a bad situation worse by identifying your spouse’s vulnerabilities when trying to reach a settlement. Always try to negotiate before you litigate.
#5 – Using a Difficult Attorney
Lawyers can turn good divorces into bad ones and bad divorces into nightmares. It’s not just divorcing spouses that are difficult. Certain lawyers are intent on churning fees, and they can cleverly manipulate situations to their financial advantage. The result is couples who will fight over the big and little things and invariably wind up in court and broke.
Do not fall for the myth that you have to find a take-no-prisoners attorney, someone who is ruthless and will use any tactic necessary to “win” the case. When there is one difficult attorney, the odds are the divorce will be costly and unpleasant. When there are two difficult attorneys, the divorce will be a total nightmare.
#4 – Becoming Passive
The last thing you want to do when your spouse announces she wants a divorce is to become completely acquiescent. Many people are manipulative, and if they think they can manipulate you into getting what they want out of the divorce, such as money, property or custody, they will do so.
If you are stunned or saddened, you may agree to anything and everything your spouse recommends. Don’t confuse passivity with being reasonable. My experience is that the shock of divorce soon wears off, and once it does, you’re much less vulnerable to making this mistake.
#3 – Arguing About Who Gets What
In most divorces where couples have been married for a number of years, disputes about property arise, and sometimes these arguments are perfectly understandable. These arguments, however, can become completely irrational and vengeance-based. I had a client say, “I would rather incur 10 times in legal fees what the painting costs than allow her to have it!”
These arguments can be draining emotionally (not to mention financially), but it helps to recognize that no matter how your spouse uses these objects in the bargaining process, the court generally divides property fairly if both parties have competent attorneys.
#2 – Serving Your Spouse with Divorce Papers in Embarrassing Places
Having an officer of the law serve your spouse at home or business should be reserved for cases where they refuse to file an appearance or accept service of process, or where great conflict exists between the two parties.
There is nothing more embarrassing than having a police officer serve you with papers at work, and nothing more unnerving than hearing the doorbell ring at 2 a.m. and seeing a policeman at the door (and having your neighbors see him as well).
If your spouse uses this tactic on you, as obnoxious as it may be, remain calm.
#1 – Responding to An Impending Divorce With Anger
The early stages of the divorce process can be a highly emotional time when people say things they do not mean or act in unusual or uncharacteristic ways. Divorces “blow up” legally when one person responds to anger with even greater anger, creating an escalating war of attrition that otherwise would have been a brief skirmish.
Therefore, allow a bit of time to pass before you do anything. Your spouse may settle down after blowing off some steam, and you can continue to move forward in a reasonable manner.
About ten years ago I received a call from a well known attorney representing a father in a paternity case. The attorney asked me to conduct surveillance at Mc Donald’s during a custody exchange. The father was picking up his children for weekend visitation. He told me he wanted me to observe any interaction the parents had with the children and to make special note of the children’s body language and expressions.
I arrived at the Mc Donald’s early and found a good seat that would enable me to observe all the parties involved. Shortly after the scheduled time, the mother arrived with the children. She pulled in the parking lot, parked, got out, and retrieved the two boys ages seven and nine from the backseat. My first observation was made as the mother and boys began to approach the restaurant. The mother appeared to be using her hands and body to shield the boys as if they were approaching a dangerous situation. When they entered the Mc Donald’s the children were trying to see their father. They were obviously much shorter than their mother but couldn’t seem to get past her. The father was waving from across the restaurant. The older son saw him, smiled, and began to wave back. As soon as he started to wave, the mother grabbed him by the back of his coat, pulled him towards her, and got down on one knee. She shook her finger in his face as if she were scolding him. He lowered his chin to his chest and became flush. Both boys then proceeded to meekly approach their father being careful to stay behind their mother. When the mother was approximately twenty feet from the father she began to yell at him. Several patrons in the area appeared to be uncomfortable and one of the cashiers stopped taking an order to see what the commotion was all about. The entire restaurant seemed to stop for a moment. The mother told the father that she had to force the children to come with her because they were afraid to see him. The boys continued to keep their heads down and continued to do so until the mother exited the restaurant. The mother made several comments about the father not loving the children, being a deadbeat, and not caring about them. The father, to his credit, remained calm and stoic. The mother not getting the response she desired from the father then addressed the children. Every time she would refer to the father she would say in a contemptuous tone, “your father”. She would say the word “father” as if it was a curse word. When the mother finally left the restaurant the children seemed to take on new identities. It was obvious to everyone watching that the children were in fact happy to see their father but were frightened of their mother. They were visibly happy, excited, comfortable, and relaxed around their father.
I immediately returned to my client’s office and reported on my somewhat alarming observations. The attorney was satisfied with my report and asked me to wait as he contacted a forensic psychiatrist. He put the doctor on speakerphone and asked me to repeat what I had just told him. After I finished explaining the events of the day, the forensic psychiatrist said, “Well, that confirms our fears”. After he hung up the phone the attorney explained to me that I had just witnessed first hand Parental Alienation Syndrome or PAS. The attorney explained he did not want to tell me about PAS prior to the investigation because he wanted me to approach the situation without creating potential bias in my observations. At the time of the surveillance, I didn’t realize that what I was witnessing was PAS first hand. Today I use the videotape of this event to show investigators I train some of the signs of PAS.
I recently attended a symposium sponsored by the Illinois Council on Responsible Fatherhood. One of the speakers at the symposium was a friend and colleague of mine Dr. Leon Intrater. Dr. Intrater discussed the issue of Parental Alienation Syndrome (PAS). Over the years I have worked on many cases where PAS was prevalent and been given the arduous task of proving PAS exists. While it is not the investigators role to make a psychiatric evaluation of any type, documenting the parent’s actions and interaction with the child can be valuable to a psychiatrist and the court.
Parental Alienation Syndrome (PAS) was discovered by forensic psychiatrist Dr. Richard A. Gardner and has emerged as an expert in dealing with the issue.
Gardner defines PAS as:
“The parental alienation syndrome (PAS) is a disorder that arises primarily in the context of child-custody disputes. Its primary manifestation is the child’s campaign of denigration against a parent, a campaign that has no justification. It results from the combination of a programming (brainwashing) parent’s indoctrinations and the child’s own contributions to the vilification of the target parent.”
While PAS is manifested in several ways some of the more commonly cited examples are; bad mouthing the other parent in front of the children, withholding visits, and determining activities for the children while visiting with the other parent.
As the above investigation demonstrates, documenting the parents interaction with the children can provide evidence of PAS and ultimately may be used by a psychiatrist in the development of his/her opinion.
When a parent calls a child at a prearranged or court ordered time and is told on a regular basis that the child is not home, unavailable, or ill, an investigator may be able to determine if this is true or not. If the time of the call is documented and the child can be videotaped or otherwise proven to be not ill or in fact, playing in the front yard, at a neighbor’s house, or at baseball practice, this information can prove to be valuable. Additionally, when parenting time is canceled because, “an emergency came up”, the investigator can be called upon to document the truth. This may support the premise put forth or contradict it completely. The investigation will reveal the child’s true activities.
In many cases, a parent may be going to great extents to exclude the other from knowledge of and involvement in the child’s activities such as school sports, extracurricular activities, school activities and field trips. An investigator can obtain this evidence through the school, other parties, or surveillance. If this information is withheld from the parent being targeted this may be evidence of PAS.
Surveillance may also uncover medical, dental, or other important appointments which the other parent should have been notified of but was not. In some cases the targeted parent will find out about doctor appointments after the fact and unfortunately the only reason it is finally disclosed is for monetary purposes.
Claims made by one parent to the court that the other parent has strangers spending the night or leaves the child alone may also be either contradicted or supported through the use of surveillance.
While individually these events may not seem significant, a pattern of this type of alienation may be of interest to a Psychiatrist or Judge.
Investigating PAS may not be easy but an effective investigation can make a serious difference in the lives of parents and their children and prevent irreparable damage to their vital relationship.
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.
VIRTUAL VISITATION-New Technology is Changing the Way Divorced Fathers Can Connect with Their Children
By Michael Gough
The reality of divorce for most men means that they will have less time to spend with their children. The average divorced father has only four days of visitation a month. For fathers who live in cities distant from their children, it can be months between visits. But, because a child’s world is always changing, unless you keep in touch regularly and consistently, you risk falling behind. Until recently, the only real option was to talk over the telephone, which many fathers say is insufficient to build or maintain meaningful bonds with their children, especially if they are young.
But currently there is a new movement underway throughout the country to utilize advances in electronic communication technology to supplement non-custodial parents’ visitation time called “Virtual Visitation.”
Virtual Visitation has been referred to by many names: electronic communication, virtual parent-time, Internet visitation, computer visitation, video calls and others. The common legal term is ‘Virtual Visitation,’ though it may vary from state to state or individual preference. Virtual Visitation involves using tools such as personal video conferencing, a webcam, email, instant messaging (IM) and other wired or wireless technologies over the Internet or other communication media to supplement in-person visits and telephone contacts between children and their parents.
Virtual visitation has many applications, such as:
For divorced parents to communicate with their children
For parents traveling on business or vacation to keep in touch with their family
For grandparents to keep in touch with their distant family members and grandchildren
For Families seeking a better way to communicate other than the telephone
For children whose parents are overseas on military duty
For elderly care facilities so family members can keep in touch
For counseling centers for a way their patients can communicate with their children
For supervised visits for parents and their children
For domestic violence and high conflict situations
What Virtual Visitation is not is a replacement or substitute for in-person contact with your children. The most important contact you can have with your children is face-to-face. Virtual Visitation is not intended to support or justify relocation or move-away cases by a custodial parent.
Virtual Visitation is an additional way to improve your communication with your children when you can not physcially be with them and should never be used to replace or substitute in-person or face-to-face visits with your children.
After my daughter was relocated from Utah to Wisconsin I had not seen her for about three months when I flew to Wisconsin to be with her for the weekend. She did not immediately run up and greet me, but hesitated. She was only four years old. Her father was now distant and it showed after only three months. A few weeks after I started using video calls with her I visited again and this time when she saw me, she ran up and hugged me. The difference: she had just seen me days earlier on the computer via a video call. I was able to read her stories, show her that I was there for her, which helped us to build lasting memories and the security that children need to have with their parents.
If your children are young, you can read them stories, or they can read to you. You can teach them how to type, use Instant Messaging to send you greetings, play games, show them their favorite stuffed animals, their pets, pictures or any other personal affects. They can show you their teeth that they lose with incredible clarity. Another major benefit is that other extended family members can participate. Grandparents, aunts, uncles and family friends can all communicate over a video call to keep the sense of family fresh in their minds and reinforce we are there for them.
As children get older, you can help them with their homework, help with spelling lessons, language lessons, play musical instruments and provide feedback on written assignments. The custodial parent can even ask the non-custodial parent for help reinforcing a parental decision over a video call.
Many psychologists support the use of Virtual Visitation because it is visual and therefore is a far better tool for connecting with children than the telephone.
Virtual Visitation can help reduce the impact of a divorce that involves a move-away, which affects roughly 25 percent of all divorces with children. A move-away situation can be very traumatic on children, as their fathers (or mothers) are removed from their lives and left to only a few in-person visits per year. Children change so rapidly, seeing them often helps you to stay close and reduce the adjustment that occurs when you first get together after a separation. The last time I saw my daughter when she left Utah, she had long hair. The first time I saw her on a video call three months later she had given herself a haircut and had very short hair. I was able to adjust to the change long before I saw her in-person again. So when we saw each other we were able to focus on each other and the child and parent bond, not on the impact of the changes that occur so rapidly with children. It reduced that adjustment to a few minutes, not hours or days. It was a remedy that helped reduce the impact of divorce for both of us.
During these extended visits with the non-custodial parent, the custodial parent can benefit by using Virtual Visitation to stay in touch with the children when they are away. But, a video call can never replace the real thing – the in-person contact that each of you need to build and sustain a lasting bond. Fathering cannot be replaced with a computer. Virtual Visitation is only a tool, a remedy, to help reduce the impact of divorce and father absence on children.
Some critics have suggested that Virtual Visitation legislation could make it easier for judges to allow move-aways. But the authors of Virtual Visitation bills have been careful to craft language that specifically protects against this type of misuse. However, if the courts do allow a move-away, Virtual Visitation can be a great benefit to both parent and child and help them remain connected between in-person visits. Most importantly, it helps children understand that their non-custodial parent has not abandoned them.
But Virtual Visitation is not just for move-away situations. There is no reason you can not use it even if you live around the corner from your children. The goal is to be there for you children, to let them know you are always available and to build long lasting relationships with your children that will last a lifetime.
Michael Gough is the founder of InternetVisitation.org.
By Beth Neuman
Let’s face it. Many divorced dads don’t get the luxury of living with their children or even seeing them every week. That’s why it’s so important to enjoy the time that you do get to spend with them and plan activities that will strengthen your relationship.
Whether you’ve got your kids for a weekend or a week, there are a wide variety of activities single dads can do with their kids, no matter what their interests and ages are.
+ Children’s Museum – These museums offer a safe and fun learning environment. There’s sure to plenty of educational activities to keep them entertained for hours.
+Petting Zoo – Young children are fascinated by animals. Interacting with animals can open up the lines of communication – even with your youngest tot. Just make sure to keep an eye on where they (and you) are stepping.
+Pet Store – You don’t have to get a new pet to enjoy a pet store. Take time to look at all of the different animals. If you’re feeling like super-dad, you can even buy them a pet. It might be wise to stick with a small hassle-free pet, such as a fish or turtle, or risk incurring the wrath of your ex-wife.
+Park/Picnic – Venture out to a new park, pack a picnic lunch, and don’t forget the juice boxes, snacks, and plenty of napkins.
+Concerts/Theatrical Event – If you’re brave enough to handle an arena of screaming tikes, why not take them to a concert or play. Check your local community centers or online for information.
+Board Game Night – Remember when you used to stay up all night wired on coke playing Battleship, Operation, and Monopoly? Relive those days with your own children. Order a pizza, get a couple two-liters bottles of soda and let the games begin!
+Video Games – Teach the young ones a few new tricks. Warning: modern video game controllers are much more complicated then the two-button joysticks of the Atari-era.
+Shopping – Although this might make some kids (and dads) cringe, others love to get out and look around in stores, etc. Be sure to talk to you kids and be firm about spending limits. You will survive.
+Bike Ride – Why not take a nice bike ride to your local ice cream or candy store? You probably could use the exercise anyway. Just be sure that the kids can handle their bike before you’re a mile away from home.
+Pool – Cool off and take a break by relaxing in the water. Pools are inexpensive and can keep your kids entertained for hours!
+Theme Park – Six Flags and other theme parks are all over the country. Just make sure you pick a good day – rain can put a damper on things, but nothing is worse than being stuck for two hours sweltering in a long line.
+Camping – Map out a camping destination and head for the great outdoors. This is a perfect activity for older children and teens. All you’ll need is a tent, a cooler full of food, a first aid kit and an industrial-size can of bug spray. And yes, S’mores are as good as you remember.
+Museums – Many people that actually live near or in a city don’t take the time to see the tourist attractions and museums that big cities have to offer. Note: make sure this is something that interests your children otherwise you’re bound to hear a lot of sighs and see a lot of eye-rolling.
+Sporting Events – Don’t mess with success. For generations dads have been taking their children to the ballpark to bond with them. Eat hot dogs and cheer for the home-team and impress your teen with your sports knowledge.
+Concerts – Ask your kids about their favorite bands and find out when the next one will be in town for a concert. You might be surprised to find you’ve actually heard of them. Regardless, they’ll always remember singing along with their favorite band with their dad.
The most important thing to remember is that it’s not really what you do, but how you do it. No matter how you spend your time, make sure you really reach out to your child and try to communicate with them. Spending quality-time with your child is essential to maintaining a great father-child relationship after a divorce. They need to know that you are there for them and want to spend time with them.
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.