States Consider Laws Against Paternity Fraud

Child Advocates Worry About Effects

The Washington Post, By Robert E. Pierre, October 13, 2002

LANSING, Mich. -- Edward L. Mack was floored to learn just weeks after his divorce that two of the three children born during his 10-year marriage were fathered by another man. He was even more shocked that the discovery -- under Michigan law -- meant nothing. A year later, he still pays $375 a month in child support for all three children.

"I don't think it's fair for me to have to take care of somebody else's children when she went out and slept with another man," said Mack, 55, pastor of the Spiritual Israel Church & Its Army Temple No. 8 in Detroit. "I still love the children because it's not their fault. But think about how you would feel."

In Michigan, as in most other states, the children born during a marriage are the legal responsibility of the husband. And even for single men, once paternity is acknowledged or established through the courts, it is next to impossible to change. Prosecutors and many children's advocates contend that is the way it ought to be to keep from unduly traumatizing innocent children by snatching away their emotional and financial support.

But across the country, including in the Michigan legislature, a push is underway to institute "paternity fraud" laws. The new legislation would cancel mandated child support payments -- and arrearages -- for men who can prove through DNA testing that they are supporting children who are not their flesh and blood. In some cases, the laws would provide criminal penalties for women who willingly lie about the father of their children.

"It's a legal fraud," said state Rep. James L. Koetje (R), who is sponsoring the legislation that has passed overwhelmingly in Michigan's House of Representatives. "The state should not condone or perpetuate a legal fiction."

Advocates of the new laws -- mostly men such as Mack with a personal grievance -- contend change is needed to prevent the exploitation of men by women who are promiscuous, get pregnant and then choose who they want the father to be, often based on how much money the men have. Some are pushing for mandatory testing in all unmarried births, and before any child support order is established, because most are completed without the man even appearing in court.

They point to studies by groups such as the American Association of Blood Banks, which found in 1999 that nearly 30 percent of 280,000 paternity cases evaluated excluded the alleged father as the biological parent.

"There is an epidemic sweeping this nation," Carnell A. Smith, founder and executive director of U.S. Citizens Against Paternity Fraud, testified before a Michigan Senate hearing recently. Smith said he, too, is a paternity fraud victim and now travels the country seeking legislative reform.

"It causes havoc, emotional harm and social harm," he said. "Many states have chosen to look the other way and pretend the problem does not exist."

At least 30 states have laws presuming a child born to a married couple is the man's. He can challenge that presumption in court, but most states have a statute of limitations, some as long as 10 years. Maryland and Ohio for years have allowed men unlimited time to challenge paternity using DNA testing. Georgia and California passed similar legislation this year, and several other states are considering the move.

The basis of most state law on the presumption of fatherhood is a 500-year-old doctrine in English common law designed to spare children in medieval England from being labeled as illegitimate, and therefore endowed with virtually no rights. But there is also recent history at play. As part of welfare reform efforts, states have cracked down on "deadbeat dads," forcing single women to name the fathers of their children so that taxpayers aren't left to pay for child support.

In California, a law governing unmarried births says there is a "compelling state interest in establishing paternity for all children," to ensure health coverage, social security and inheritance rights.

Many children advocates argue there must be some time limit after which men cannot contest their parental responsibility.

"At some point there is a societal need for the paternity of a child to be established with some degree of certainty," said Christi Goodman, program manager of the children and families program for the National Conference of State Legislatures. "If a man has held a child for three years as his own, he has to say that, 'Even if he's not actually my kid, I've loved and supported him for three years, and at this point he is my son even if he's not my biological child.' It's really no different from adoption in that sense."

The Michigan Federation for Children and Families has argued that the proposed legislation would make adoptions more difficult because it adds an additional layer of uncertainty if paternity cannot be established with some finality.

Child support officials worry it would upend efforts to collect legitimate child support. And the State Bar of Michigan said the state would do more harm than good by passing the bill.

"While this would seem to be a matter of fundamental fairness toward the man, it is a disastrous result when viewed from the perspective of the child," said John F. Mills, an attorney who represents the Michigan Bar's family law section. "It would eliminate child support for those children with perhaps no recourse to an alternate means of support."

But to the fathers, it's an issue of justice. A father in New Jersey has rented out a billboard to bring attention to the issue there, forming an organization and soliciting support for more than $50,000 worth of billboards and newspaper ads.

And in Michigan, Murray Davis formed Dads of Michigan to help other men who are in the same situation. A month after his marriage of 20 years split up in 1995, Davis learned that two of his three children were the biological children of his now-former best friend. He keeps in close contact with his children, but got parental rights and child support orders terminated. He wants to help others do the same.

"We are a country of laws that should equally protect the innocent and hold the guilty responsible," Davis said in testimony before a Michigan Senate committee hearing recently. "Why should we continue to pursue, incarcerate or hold in financial bondage an individual who can prove his innocence via irrefutable evidence? Men are just kind of tired of being victimized."

Paternity fraud "causes havoc, emotional harm and social harm," said Carnell A. Smith, who travels the country seeking legislative reform.