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Paternity Fraud and the Need For Mandatory Paternity Testing

DNA test can turn doubts into anguish when Dad's is not real father

The Record (Bergen County, N.J., U.S.A.), BY RUTH PADAWER, Feb. 16, 2004

(KRT) - The first time it happens, Patrick McCarthy figures his ex-wife is only spewing venom. Her words can't possibly be true.

Their daughter is already 14, with a dimpled smile and straight brown hair that look just like his. She spends vacations and every other weekend at his place in North Plainfield, N.J., and photos of her decorate his office and hang on the living room wall. He cheers at her softball games and brags to co-workers about her gymnastic feats.

Still, the second time it happens, he can't help but wonder about his little girl.

Until recently, men like McCarthy had little way to confirm their suspicion that children conceived during their marriages did not actually belong to them. Centuries-old common law has always presumed that children born to a wedded couple were genetically linked to them both, a quaint assumption that most courts still abide by. They do so even when science proves otherwise.

Paternity tests date back to the 1950s - Charlie Chaplin's was one of the more celebrated - but they were complicated, expensive and unreliable. By the 1990s, simple cheek swabs could accurately identify a child's biological father. And unlike before, the mother need never know; the tests no longer require her genetic input.

A few years later, home test kits appeared. Web sites and talk shows began buzzing about "duped dads." The number of paternity tests surged from 149,000 in 1995 to 350,000 in 2002, according to the American Association of Blood Banks. A wave of paternity fraud lawsuits followed.

A surprising 25 percent to 30 percent of these tests conclude that no biological link exists, a revelation that upends society's cozy definition of fatherhood, careening into touchy matters of sex, betrayal, money, abandonment and the yearning for one's own genetic immortality.

As stunned as many of these men are to learn that they are genetic strangers to their children, they are even more startled to discover that most judges don't want to hear it. While state court rulings have varied widely, most conclude that men must continue to pay child support, no matter what their cheek cells say.

"The saying in the parentage testing community is: `Maternity is a fact; paternity is an opinion,'" says Dr. Robert Allen, spokesman for the American Association of Blood Banks, whose members conduct the vast majority of such tests. As medical director for several labs, Allen has watched families dissolve upon learning genetic truths.

"I'm not Solomon," he says. "It's not my job to make the judgment about who the parent is. But my own opinion, in spite of my job, is that parenthood is more than just genetics."

Paula Roberts, senior attorney with the Center for Law and Social Policy in Washington says that technology has outpaced society's notion of what makes a father.

She asks, "Is he the one who donates the sperm or the one who nurses them when they are sick and takes them to soccer games - the one who serves as a constant presence in the child's life and nurtures and supports them?"

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On a brisk day in January five years ago, Patrick McCarthy calls his former wife to check on his daughter's grades. The ex explodes: "Can't you just leave us alone?

"Why are you so concerned, anyway?" she blurts. "This child isn't even yours."

Pressed, she waves it off as a baseless taunt. But the same remark tumbles out three months later, and doubt nags at McCarthy like a raspy, skipping phonograph record: Yours? Yours? Yours?

He sleeps fitfully, waking bolt upright some nights. He pads downstairs at 2 a.m. to stare at the computer screen and beg for answers. He types in the two words that will soon consume him: paternity and DNA.

A few hard-luck stories spring up, dime-store novels of love and deception. Ads for laboratories pop up, too, and he jots down phone numbers. For weeks, he debates whether to call.

His second wife, Susan, urges him to buy the test. You don't even look alike, she says. She resents the $15,000 he has spent on a kid she is sure belongs to another man. Part of him resents it, too.

Finally, McCarthy buys a $500 DNA tester and devises a ruse to win his 14-year-old's cooperation. On one of her weekend visits, he lies and says a buddy has developed a way to predict temperament, a sort of saliva-based mood ring. Casually, he persuades her to play the game by swabbing the inside of her cheek. When the tip doesn't change color as his fictional friend had promised, McCarthy waves off the game, then pretends to discard the swab. Instead, he seals it in a sterile bag, and sends it off to the lab with a swab of his own.

"What was I going to do?" he asks. "Say to a 14-year-old, `You know, I don't think I'm really your father?'"

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The answers DNA testing provides only beget more questions, creating a 21st century Rubik's cube of interlocking ethical dilemmas:

Is it fair to require child support from a man whose paternal generosity was based on fallacy? On the other hand, is it fair to yank support from a child just because the man she knew as Daddy turns out not to share her genes?

Is it just to require the non-biological father to give up his paycheck for that child, when that will only reduce resources for children he really did father? Should the man who paid under false pretenses be paid back? If so, by whom? The mother? The state? The biological father - if he can even be found?

If DNA is paramount, as men like McCarthy contend, doesn't that mean that a biological father with no emotional relationship with a child could assert his paternal rights over a mother and father who have raised the child together?

And perhaps most important, what does it do to a child to learn that the man she always considered her father is not?

It's unclear what Patrick McCarthy's former wife thinks; she did not return phone calls. But to the men who are part of the movement against paternity fraud, the answers are simple.

"The system is not fair to men," says Carnell Smith, who paid $40,000 in child support and then discovered that his 11-year-old daughter wasn't biologically his. He went on to form the National Family Justice Association to lobby for change. "We are financial hostages."

Smith considers men like himself to be "deceived, scammed, and hustled paternity fraud victims." On his Web site, www.paternityfraud.com, he rails against "father shopping, Gold Digger 101, cuckolding for cash and child support fraud." He sells coffee mugs, T-shirts, lunch boxes, tote bags and greeting cards plastered with his logo: the words "paternity fraud" slashed with a red line. He encourages his Web visitors to network.

They are an odd amalgam. They go beyond men who believed they were biological fathers and now want DNA to relieve them of financial obligations.

They include guys who were told wrongly that they were not the fathers, and now hope DNA will secure their visitation rights. And they include guys who knew all along that they weren't the father, but played the part while dating the mother and now can't understand why courts insist that they continue as Dad. For each of them, judges have pooh-poohed the DNA argument, ruling that a man who acts like the father is the father.

Smith and his associates have made it their life's work to challenge that.

Legislatures in Alabama, Arkansas, Georgia, Iowa, Ohio, and Virginia have yielded to the lobbying, allowing ex-husbands and ex-boyfriends to end child support if DNA bolsters their claims, no matter the age of the child. A few other states grant relief only if paternity is challenged within a few years of the child's birth.

But most states say a man who is already paying child support must continue to do so, DNA be damned.

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Within four weeks of sending away his daughter's cells, McCarthy receives a FedEx envelope. Inside, a letter announces the percentage of probability that he is the biological father: zero.

McCarthy staggers.

"I broke down and cried," he says. "It's an indescribable feeling: like death, like a horrible grief, like I had been the father to a stranger. Everything I thought was true suddenly wasn't true anymore ."

For weeks, he stumbles through his job as a courier service driver. The nights are worse, lying awake, confused and in pain. He vows not to tell his daughter until she turns 18.

McCarthy asks a lawyer to get his child support dismissed. The attorney is unmoved. He tells him: "You sat on your rights too long."

"How can you sit on your rights too long if you had no idea what the truth was?" McCarthy wonders. "I had no reason to doubt this child was mine. I had no reason to think my wife had had an affair."

The lawyer shrugs. Life isn't always fair, he says.

Other attorneys tell McCarthy the same thing. He shoves the test results into the back of his closet. He can't shake the sense of unfairness. When Ohio passes a law allowing men to challenge paternity anytime before the child turns 21, he sends a copy to legislators in Trenton. A few write back and encourage him. With a few buddies in similar straits, he forms New Jersey Citizens Against Paternity Fraud to push for reform.

He finally confronts his ex-wife one day outside his daughter's gymnastics practice.

I know, he says, and I have proof.

She calls him a liar and walks away.

He filters through the wrenching hurt and sadness. It takes time for something else to emerge: the memory of his euphoria when he saw his newborn after nine months of waiting, how he comforted her in a steamy bathroom when she had croup, how he held her hand in the emergency room when she had a terrible gash on her face.

But nothing lasts forever. Their relationship grows tense. Adolescence is hard on her. She rarely returns his calls. They drift apart.

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Just how society ought to address paternity questions remains frustratingly unclear. Equitable, painless solutions are unlikely. On one point, however, paternity fraud activists and child welfare advocates agree: Every man and baby should be DNA-tested at the child's birth. Nevertheless, no state requires that. Officials say it would cost too much.

For now, child welfare advocates say, no one - presumed father, biological father, or mother - should be allowed to challenge paternity once the child turns 2. The National Conference of Commissioners on Uniform State Laws proposed a model statute to that effect in 2000, but only a few states have adopted it.

"The more years that go by in a child's life, the harder it is to track down the biological father," says Roberts, the child advocate who sat on the conference's paternity committee. "Our contention is that you can't disrupt the course of a child's life once he or she is old enough to understand what's going on."

Self-described victims of paternity fraud say the committee's plan is too simplistic. Is it any fairer to the child to maintain a fiction? Besides, they say, a two-year limit may sound reasonable in theory, but reality is often more complicated.

Consider the men who are named as fathers after their alleged child is already several years old. Federal law requires a woman to identify the father when she applies for welfare, so the state has a wallet to go after. The court mails a summons to the guy's last known address, but some don't get the notice. Maybe he has moved and left no forwarding address. Maybe his new wife or girlfriend tosses the notice, thinking he won't be liable that way. She's wrong.

Courts enter a default order, and a man may not find out he has been named someone's father until his paycheck gets tapped, at which point it may be too late to do anything about it. In California, for example, more than half a million men have had their paychecks docked under default judgments of paternity that can't be contested after six months. New Jersey leaves it up to its judges to decide whether a man can contest it.

"How can there be a time limit on revealing the truth?" Smith asks.

Women and child support enforcement agencies can use DNA to go after a biological father for a good 18 years. It's unfair, Smith says, to allow non-biological dads anything less to defend themselves.

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Patrick McCarthy's daughter turns 18. McCarthy tells his ex-wife it's time to show her the DNA results. He says she has a right to know. For nearly a month, he leaves messages for his daughter. No response.

One day, he picks up the ringing phone. His daughter says flatly, "Mom told me."

He tells her that the DNA means nothing, that she will always be his daughter.

She asks who her other father is. He says he does not know, that it's a question only her mother can answer. It is a quick conversation.

The children from his second marriage are 8 and 2, two girls who look exactly like him in almost every detail. He never questions their paternity. He has come to realize that the results wouldn't matter anyway.

Sometimes when he feels brave, he rummages through the box he keeps from his first daughter's childhood. He fingers the Father's Day card she sent five years ago, a cartoon of one dog on a trapeze stretching for another dog, and he reads the words inside: "Thanks for always being there to catch me." He studies the stick figures she used to draw of the two of them together, comforted that in each case, their faces are smiling.

Sometimes, after he has put away his little girls' Chutes and Ladders game and tucked them in for the night, he thinks about his other daughter, now 19 - how he taught her to skip stones by the river near where they used to picnic, and how they used to snuggle on the couch with popcorn to watch movies together.

He remembers that she cashed the check he sent last Christmas, in a card he signed "Love, Dad."

It has been nine months since they talked.

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2004, The Record (Bergen County, N.J., U.S.A.)

Distributed by Knight Ridder/Tribune Information Services.