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Canadian Children's Rights Council - Conseil canadien des droits des enfants

Canadian Children's Rights Council - Conseil canadien des droits des enfants

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'Duped dads' fight back in paternity cases

Post-Dispatch, JEFFERSON CITY BUREAU, Missouri, USA, By Matt Franck, April 10, 2007

JEFFERSON CITY, Missouri, USA  €” David Salazar is what many would call a "duped dad."

Repeatedly, courts have ordered him to pay child support for a 5-year-old girl, even though no one €” not a judge and not the child's mother €” claims he's the father.

In the eyes of many, Salazar, of Buchanan County, is the victim of a law that traps men into the child support payments, even though they can prove they're not the dads.

Now, cases such as Salazar's are inspiring legislation in Missouri and across the country that would make it easier for men to use genetic tests to shed financial support. Advertisement

Salazar doesn't have that option now. Under Missouri law, he was presumed to be a father simply because he was married to the mother when she gave birth.

The same law gives men, both married and unmarried, a limited time frame to challenge paternity. After those deadlines have passed, even DNA tests often aren't enough to shake paternity obligations.

Salazar's attorney says felons have Read More ..ghts when it comes to using genetic evidence to overturn court rulings.

"It's a sad day when someone can use DNA tests to walk out of prison, and yet with my client they don't want to check the DNA," attorney Merle Turner said.

But critics of the Missouri bill say walking out of prison and walking out on a father-child relationship are two different things.

They say the Missouri bill ignores the damage that's done when a man abruptly severs parental ties. They also say courts should consider emotional bonds, and not just DNA evidence, as they enforce the definition of fatherhood.

"Someone who has functioned as a dad for many years should not be able to disestablish paternity just with biology," said Melanie Jacobs, a law professor at Michigan State University.

Truth as a guide

That kind of statement angers Sen. Chris Koster, who is sponsoring the Missouri bill.

Koster, R-Harrisonville, said he knew children would be harmed as men used DNA to break paternity. But he said the current law mocked justice by pretending that a man is a father even when the evidence proves otherwise.

He said current law set meaningless deadlines, forgetting that men may not learn for years that they were lied to by mothers. His bill would allow men to bring forward DNA evidence at any time to prove they are not obligated to pay child support.

Missouri law presumes a married man is the father of children born in wedlock.

That presumption is often cemented during a divorce, as courts set child support. After that, men have a year to dispute a legal finding of paternity.

The law is a bit Read More ..mplicated when a mother is single. In some of those cases, men voluntarily list themselves as the father.

In other cases, the issue of paternity is fought out in court, with DNA evidence being used to resolve disputes. Often, the state enters the fray, seeking child support payments for children who receive public assistance.

But in disputed cases, men in Missouri have only 60 days to object to being named a father. After that, they must prove they were the victims of fraud in order to fight a paternity finding.

Critics say the current system penalizes fathers who fail to immediately question the faithfulness of a wife or girlfriend.

"If he doesn't find out early on that he is indeed the biological father, the fact that he trusted the mother would be used against him," said Carnell Smith, a man from Georgia who now leads a national effort to change paternity laws.

It's unclear how many men are involved in paternity disputes each year nationwide. But the Internet is brimming with sites on paternity fraud, such as the one Smith maintains to push legislation and offer men advice on genetic tests.

Smith himself said he was the victim of deception by his ex-wife. After the divorce, he grew suspicious as to whether he was truly the father of an 11-year-old girl. DNA evidence confirmed he was not, after he had paid $100,000 in child support.

Smith said he wanted to maintain a relationship with the girl he once thought was his daughter, he just didn't want to pay for her support. But he said the mother would not allow visits.

The bonding issue

Linda Elrod, director of the Children and Family Law Center at Washburn University, said she was saddened by cases where DNA evidence was used to challenge paternity. She said the cases not only cut off support payments but often ruptured a mature parental bond.

"I think it is a crime to be doing this when the child is 12 years old," she said.

Others, such as Jacobs, want to set a two-year deadline for using genetic tests to challenge paternity. She said courts also needed the discretion to weigh the quality of a parental relationship and the best interest of a child.

But Koster said such arguments by law professors ignored the fundamental truth in many cases €” that the man is not the father and should not be obligated to pretend he is.

"It would be just as arbitrary to hang the responsibility of supporting the child with those professors," he said.

Koster said he was inspired to file the bill after hearing about the Salazar case.

In that case, Salazar did not reply to court notices seeking more than $13,000 in child support. Salazar could not be reached for comment.

Turner, his attorney, said he was largely uneducated and did not understand the court process. But she said that shouldn't have mattered, because even the mother had said in court that he wasn't the father.

Koster's bill has cleared the Senate committee but has yet to be debated on the floor. If approved, Missouri would join Ohio, Florida and Georgia in approving similar laws.

As legislation is passed, Smith said he would like states to move to eliminate paternity disputes before they even begin by mandating DNA tests of all newborns €” even if parents were married.

Koster said he didn't believe Missouri was prepared for such a law, especially because it could destroy marriages in the delivery room.

But the idea of paternity tests at birth has support among some of the same child advocates who oppose Koster's DNA bill.

"It's going to create some sad people in the delivery room," Elrod said. "But is that better or worse than having a father tell a 10-year-old, 'I'm not going to see you anyRead More ..39;?"

The bill is SB55.

RELATED LINK Missouri bill on establishing paternity