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Movement targets `paternity fraud'

In Nevada and elsewhere, man pays child support even if DNA shows he's not father

By RICHARD LAKE, Las Vegas REVIEW-JOURNAL, Las Vegas, U.S. December 8, 2003

A DNA test is strong enough evidence to release a wrongly convicted man from prison, but in Nevada and most other states, it won't necessarily release him from paying for a child that turns out not to be his.

"It's ridiculous. It's a matter of fairness and justice," said Murray Davis, an advocate for legislation against what he and a growing number of men nationwide call "paternity fraud."

The scenario goes something like this: A woman gives birth; a man accepts that he is the child's father; the man and woman split up; a court orders the man to pay child support; later, the man discovers that he is not the child's biological father and asks the court to relieve him from making the payments; the court refuses; the biological father gets off scot-free.

"What they're basically saying is that they're going to continue propagating a fraud," said Davis, vice president of the National Family Justice Association and a resident of Michigan.

Often, courts say it is in the "best interest of the child" for the man to continue paying support.

Davis' group and others like it have sprung up in states from New Jersey to California in recent years as DNA testing has become easily affordable.

The movement's leader is Carnell Smith, a Georgia man who discovered that the "daughter" he had helped raise with his longtime girlfriend was in fact not his biological child.

Despite a DNA test showing he was not the father, a judge ordered him to pay child support anyway. He appealed all the way to the U.S. Supreme Court and lost.

His fight spawned legislation in Georgia that allows men to fight paternity rulings even years after the child was born.

Similar legislation has passed in several other states and is under consideration in about a dozen others.

But not in Nevada. There is no discernible movement yet here, and local attorneys specializing in family law said the problem is not widespread.

The law in Nevada and most other states says that if a man initially agrees in court that he is the father of a child, there is little he can do later to get out of paying child support, no matter what the truth is.

"Don't make that mistake," said attorney Brian Steinberg, who advises all of his male clients in custody cases to get paternity tests. "If there is even a 1 percent doubt, 200 bucks is not a lot of money to find out for sure."

He and other attorneys said the state does not need legislation to take care of the potential problem; men just need to be certain about what they agree to.

"Once the courts make you dad, you're responsible," Steinberg said. "You are legally the child's father." It does not matter if, years later, a DNA test says otherwise.

That's what happened to Davis, the national advocate from Michigan.

When he filed for divorce in 1995 after an 18-year marriage, he said he had no idea that two of his three children were in fact fathered by his best friend.

Soon, he said, he learned the truth. A DNA test confirmed it.

But it was too late. The children were 11 and 12 years old by then, and he had acted as their father all their lives.

He was ordered to continue paying child support, though later the judge gave him a choice: Pay the support and continue visiting the children, or pay nothing and see the kids only at the discretion of his ex-wife.

He chose the second option.

"I trusted the fact that I knew my children well enough that eventually I would be able to re-establish a relationship," he said. "And that's exactly what happened."

A similar case wended its way through Nevada's court system a few years back, though it involved an unmarried couple.

In the spring of 1990, Gary Stenlund and Michele Poliksza split up after a brief relationship, according to documents filed with the Nevada Supreme Court.

Soon after the split, Poliksza found out she was pregnant. She told Stenlund he was the father, and he believed her, according to the court documents.

The couple remained apart, but Stenlund accepted in court papers that he was the child's father and he paid child support. Later, he petitioned for custody of the child.

Seven years after the girl was born, Stenlund came to believe the child was not his because Poliksza would not release the girl's medical information to him after he'd acquired a new health insurance policy.

A DNA test confirmed that he was not the girl's father, the court documents state. He sued, hoping to not only stop his child support payments, but to collect a refund for the years of payments he'd already made.

A lower court ruled that because he had already accepted responsibility for the girl, he could not back out. Besides, said the court, it wouldn't be in the child's best interest to lose her de facto father just like that.

Stenlund appealed to the state Supreme Court, but lost.

His attorney, Bruce Shapiro, and other lawyers say the only way such cases can be won in Nevada is if it's proven that the mother intentionally defrauds the man, and therefore the court, as to who the true father is.

The court ruled that because Stenlund had expressed suspicions all along that the child might not be his but did not follow up on those suspicions by getting a DNA test earlier, he had given up his right to fight the paternity ruling.

In an order dismissing Stenlund's appeal, the court wrote: "Gary is the only father that the child has ever known and, although Gary contends that he does not now consider the child his biological daughter, he testified that he is bonded to the child as if he was her biological father. Gary's conduct supports this court's conclusion that Gary is now estopped from denying his parentage of the child. A ruling otherwise would clearly be detrimental to the child's best interests."

Copyright Las Vegas Review-Journal