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Paternity Fraud: 'Presumption of paternity' can trump DNA tests for non-dads

The "presumption of paternity" trumps everything. This doctrine, with roots in English common law, assumes a husband is the legal father of any child born during his marriage.

In the absence of a readily indentifiable/locatable forum on Paternity Fraud I am posting this article in the USA section.

Holding to an outdated foreign justification for a present day injustice to men is criminal … and typical of various criminal misandrist states.
'Presumption of paternity' can trump DNA tests for non-dads
By Michael Rubinkam, The Associated Press (Philadelphia, USA)
27 April 2008

Millville, Pa. - After a 15-year wait and at least $10,000 in child-support payments, Mark Spaid was thrilled to be going in for a DNA test.

In 1992, Pennsylvania courts declared him the legal father of his wife's infant daughter even though he knew he was sterile, having had a vasectomy more than two years before the birth.

To the legal system, Spaid's inability to father children meant little when it came to determining who should be responsible for the child's care. In Pennsylvania, like most states, a "presumption of paternity" trumps everything.

The doctrine, with roots in English common law, assumes a husband is the legal father of any child born during his marriage. It's designed to preserve marriage and make sure children's financial and emotional needs are provided for.

But it has also embittered untold numbers of men across the nation who are required to support kids fathered by other men.

Spaid, a laborer, was unaware of the presumption when he asked the court for a paternity test in 1992. So he was floored when Luzerne County Judge Chester Muroski denied his request and ordered him to pay his ex-wife $20 a week in child support , an amount that would eventually rise to $71, or more than half his take-home pay.

He implored the judge to reconsider. He wrote to every politician he could think of, begging for a change in Pennsylvania law to make it easier to contest paternity. And he publicized his battle.

None of it did any good.

Then, one day last fall, he got his test.

But the results didn't really matter much more than they would have in the beginning.

Decades ago, before DNA testing radically altered the legal landscape of paternity, there was little a man could do if he suspected his wife had given birth to another man's child.

When James Hennenhoefer began practicing law in California nearly 40 years ago, there was no reliable test to definitively establish paternity , meaning juries often had the unenviable task of naming a father.

"You brought the baby to court in a bassinet and passed it around. The jurors looked at the baby, looked at the man accused of being the daddy, and made a call," said Hennenhoefer, president of the American Academy of Matrimonial Lawyers.

Advances in genetic technology, he said, "have changed what we do enormously."

A majority of states now allow husbands and others to use DNA testing to challenge paternity, although many of them impose time limits or other conditions for doing so, according to a recent survey of state paternity laws by men's rights activist Carnell Smith from Decatur, Ga.

Smith, who found out through DNA that another man had fathered the child he thought was his, was a driving force behind a 2002 Georgia law that allows a man to stop paying child support if a DNA test proves he is not the father.

The measure enabled Smith to "walk out of court as a broke, but free man," he said via e-mail. "No more payments, no arrears and no more threats of jail."

Pennsylvania, however, does not afford the same rights to aggrieved husbands. The state essentially leaves it to the discretion of the courts to determine whether a man can avoid child support.

It's something Mark Spaid has learned the hard way.

After his wife, who declined to comment for this story, became pregnant with her second daughter in 1990, Spaid said he deluded himself into thinking his vasectomy hadn't worked. This fiction would have disastrous legal consequences for him later, but Spaid said he simply didn't want to believe his wife had been unfaithful.

He said he was also trying to keep his shaky marriage together.

But it wasn't to be. She moved out and took the children with her.

Pennsylvania law gave Spaid the option of requesting a paternity test for their eldest child, because she was born before Spaid and his wife were married. He took the test and was shocked by the results: He was not the girl's biological father.

At that point, Spaid verified with a doctor that he was, in fact, sterile, then asked for a blood test to rule himself out as his youngest daughter's father. But since the couple were husband and wife at the time of conception, the presumption of paternity came into play, and Judge Muroski turned him down.

Frustrated and angry, Spaid resolved to become a deadbeat.

"I never voluntarily paid a penny," says Spaid, a normally happy-go-lucky fellow whose voice takes on a decidedly bitter edge whenever he talks about his situation. "I refused to pay it until they proved to me that I was the father."

The authorities garnished his wages, seized his tax refunds, froze his bank accounts. His credit was ruined. He even spent a week in jail for nonpayment.

He could have wallpapered his apartment with the delinquent notices.

"At times I was so depressed, I just felt like saying the hell with it. If I die, I die," says Spaid, now 43.

Spaid's mother urged him to stop fighting and move on with his life. But he couldn't do it. He said it was not only the money, but the principle , his wife's youngest daughter deserved to know the identity of her natural father, if only for his medical history.

One day in 2001, Spaid woke up in a particularly sour mood. He scrawled a letter to Muroski, claiming that child support had drained his finances to the point that he was running a monthly deficit of nearly $200 and could no longer pay his other bills.

"Try living like this, for a child that is not yours," Spaid wrote. "See how much fun it is to pull $195 out of thin air. … Don't say get another job, because the more I make, the more you take. I can't win."

Muroski was unmoved. He had already ruled on Spaid's case , twice , and had no intention of reopening it.

To this day, he stands by that decision.

In Pennsylvania, courts have established that a husband may be permitted to overcome the presumption of paternity if he can prove he is impotent or sterile, or that he was away from his wife during conception.

But, importantly, there are other considerations. If the man has held out the child as his own, for example, he is prevented from later challenging paternity, unless he can prove fraud.

In Muroski's view, Spaid undermined his claims by staying with his wife throughout her pregnancy and then for seven months after the birth. By accepting the girl into his house even though he knew, or should have known, he was sterile, Spaid implicitly acknowledged his paternity, and the law prevented him from later trying to deny it.

"Nobody ever thought he was the biological father from day one," Muroski told The Associated Press. "But that's not the law."

Men's rights groups call the presumption of paternity an antiquated and unfair doctrine that punishes the innocent and rewards the guilty.

Especially in cases of deception, the presumption says "it's OK to perpetrate a fraud on a man with respect to what he believes are his children, and we are rewarding mothers for doing that," says Michael McCormick, executive director of the American Coalition for Fathers and Children.

Advocates for women and children say it's not that simple.

They say that allowing husbands to challenge paternity, even for cause, puts children at risk of being deprived of the emotional, financial and moral support provided to them by their legal fathers.

"I get angry with these guys who say, 'It's not my kid, it's not my kid,' yet they've been parenting the child for five years," says Lynne Gold-Bikin, a divorce lawyer and former chairwoman of the family law section of the American Bar Association.

"Remember whose ox is getting gored here," she says. "Who is the one who is going to suffer? The child."

In 2007, the Pennsylvania courts finally granted Spaid's wish , a small victory at best, and not the decisive factor in resolving his long-simmering dispute with the state over the child-support order.

An Erie County agency informed Spaid that a couple in western Pennsylvania wanted to adopt the girl, now a teen and no longer living with her mother. Would Spaid terminate all parental rights?

Sure, he replied. But first he wanted a DNA test, to settle the issue of paternity once and for all. If the test showed he was not her father, Spaid reasoned, he did not have any rights to give up.

His lawyer petitioned Erie County Court, which had jurisdiction over custody.

Judge Michael Dunlavey ruled that he was entitled to his paternity test.

"You could have knocked me over with a feather," Spaid says. "I thought they were going to keep fighting me."

The lab results, which came back Nov. 13, excluded him as the girl's father.

Spaid is now hunting for a lawyer to see if he can get his money back , the child support plus thousands in legal fees , from his ex-wife and the state. He says he'll also continue lobbying for changing a law that he says discriminates against married men and makes it hard for children to determine who their real fathers are.

After learning the results of the DNA test, Spaid got his name removed from the child's birth records. More than 15 years after he first raised the issue of paternity, his support obligation officially came to an end.
I find myself very conflicted on this topic. Part of the reason for this, is that I think access should be tied to payment. If one party is actively preventing the child/ren from spending time with the other party they should not have to pay support.

I guess it comes down to parenting. If I parent a step child, am I any less upset if access to that child is removed and I have been in the child's life for 10 years?

I think it's more about the role of parent. If a man has parented the child and wants to spend time with that child, I think it implicit that child support be paid.

The next problem I have is that child support is ridiculously high and can be used, by some very sad excuses for mother's, to fund their lifestyle.

Would I be able to love a child that I have loved for years, after I found out it was not my biological child? I don't know.

Junior Executive of SRL-Resources

Executive Member of SRL-Resources, the Family Law People on this site (Look for the Avatars). Be mindful what you post in public areas. 
If you have parented a child (and this case is not an example as they separated when the child was only 7 months old) and acted in a parental capacity to that child then the damage from DNA tests and the withdrawal of a parent etc is caused to the child. Tests don't really matter sometimes but I do not support infidelity or lying to a husband about the paternity of a child. But if it has already happened, who ultimately gets hurt the most…the child.
Not only did his partner have another man's child, she was also rewarded by the courts for her adulterous behaviour.

What a low act!

Paternity Fraud

Aphrodite said
If you have parented a child (and this case is not an example as they separated when the child was only 7 months old) and acted in a parental capacity to that child then the damage from DNA tests and the withdrawal of a parent etc is caused to the child. Tests don't really matter sometimes but I do not support infidelity or lying to a husband about the paternity of a child. But if it has already happened, who ultimately gets hurt the most… the child.
I disagree with you at a fundamental level.

Children are removed (withdrawn) from parents (typically fathers) daily by (typically) mothers and courts and police and laws (The State).  That causes withdrawal of a parent - Dad - continues unabated but few care and little changes (or has effectively changed).

The effect of what you are saying is that the man will, in the state's opinion, continue to be regarded as the PAYING 'father' and pursued for 'support'.

Men and putative fathers have rights too, not just women and children; they are as much human beings as women and children.  It's disappointing that many people only see men as worthwhile because of what they can do or provide for others … and are thus always providing images and programs to fit men and boys to support women and girls and children.  Sadly, there are very few who will help men simply because they are human.  Most, from feminist to christian, etc, will only offer to help men and fathers if that help and participation somehow is contingent on some benefit for women and children.  It appears to be too much for them to help men just because they are human (with human rights) and men.

One of the most effective ways of manipulating adults is to raise the spectre of child welfare (the dreaded "best interests of the child") and suggest dire consequences if they don't do what is required by the person raising the concern.  This is done to both men and to women.  In family law situations the 'trick' is more typically 'worked' on men.

I believe that women/mothers who lie and defraud should be punished and have to pay for their crimes.  Perhaps by having the children removed from them and having to work and pay 'child support' until the child is 25 years old.

Fortunately the point is mostly moot here in Australia because once DNA knocks out paternity the CSA backs away.  What is more difficult, as the Liam Magill case has shown, is to recover the money stolen by the Federal Government via its so-called Child Support Agency.
It really raises a whole can of worms, along with the suggestion of mandatory dna testing at birth.

There are so many "case scenario's" it would be impossible to have a 1 law fits all. A person should not have to pay CSA for a child not biologically theirs UNLESS they wish to pursue a relationship with that child for moral and emotional reasons. A mother who lies about paternity should also be held accountable by being charged with fraud - removing the kids is a bit harsh however.

Maybe an alternative to the whole issue could be a revamp of taxes, with a higher tax being paid by a payer parent instead of CSA payments - much like medicare. The payee parent would then be entitled to substantial discounts on items required by children to meet a certain standard of living (ie entitlement to 4 pairs of shoes a year at no cost, 2 sets of seasonal school uniforms etc etc). Any additional expenses (pony club, private school) to be negotiated. This would ensure that the child meets a basic living standard regardless of wether the parents earn $20,000 a year or $200,000 a year. Benefits would be adjusted to allow for rent, utilities and grocery living expenses. The basic living standard would apply regardless of time spent with either parent as necessary items would be applied against the child's entitlement not the parents. Any allowances made above this standard could then be based on time spent with the child, so a parent denying the child the right to see the other parent would not be able to claim for additional expenses. Quite possibly in the case of one parent soley reliant on benefits who encourages a meaningful relationship with a working parent could then be able to apply for a subsidy for her, or his share in additional expenses such as sports/clubs etc from the govt. In the case of both parents working a sliding scale of requirement to pay for extras would apply. This way if for example Parent A earns $40,000 a year and Parent B $60,000 the split of private school fees would be 40% to 60%.

In the case of parents who would normally come under the above shared care / costs system but who refuse to agree to extras then of course we have the FRC and courts.

What do you think?

When you are swimming down a creek and an eel bites your cheek, that's a Moray.
I really think that the issues of "self determination" is important. We have in this country a handout and victim mentality (its not to say some people don't need handouts and some people are not victims).

It's just WE ARE totally focussed on it.

Getting complex government systems involved IS NOT THE ANSWER - again its abdicating responsibility to some "upper class" who know, better, look after us all and keep us warm and safe.

We all need to be involved - its not the governments fault - they are just playing to lowest common denominator (and guess where that ends up)

People who need money should get a job, children who need help should get a family and everyone should take responsibility for ensuring good things happen and bad things don't (or so I say).

 Maybe I am not explaining myself well enough
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