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

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'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.
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