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January 4th, 2013 by Robert Franklin, Esq.
A Los Angeles court of appeals has ruled in favor of a biological father’s bid to gain custody of his son in a paternity fraud case.  The case, decided by the eighth division of the second court of appeals, is entitled J.R vs. D.P., et al.  Of course the case makes no new law, but takes some small, reasonable steps toward greater rights for fathers and children.  It also states clearly that fathers’ rights shouldn’t be decided by mothers, something we see time and again in state after state, country after country.

J.R. (the father) and D.P. (the mother), carried on a sexual relationship for, he says, about six years, but she says it was a very brief affair.  Given the fact that the trial court eventually found that her testimony to be “absolutely incredible” and “wholly unreliable,” I’m going with J.R.’s story.  But whatever the case, he was married to someone else while D.P. was single but living with another man, R.M.  D.P. became pregnant in July of 2009 and learned about it a month later.  She told J.R. and together they sought DNA testing in December.  That revealed that J.R. was the father, but, against all that is reasonable, D.P. chose to believe (or so she says) that R.M. was the dad.

She soon cut off all contact with J.R.  He attempted to contact her to establish a relationship with his child.  He called her; she got a new number.  He called her sister many times, but without any effect.  He wrote letters to D.P., but she sent them back unopened.

In April, D.P. gave birth to a little boy whom she told R.M. was his.  At the hospital, R.M. signed a voluntary declaration of paternity and D.P. signed a declaration saying under penalties of perjury, that R.M. was “the only possible father.”

Four months after the birth, all J.R.’s efforts to get to see his son having been spurned by D.P., he filed a paternity action in superior court in Los Angeles.  The judge appointed an attorney to represent the infant and, inside of a few weeks, that attorney recommended that the judge should grant the petition of paternity and give J.R. and D.P. joint custody.  Eventually, after a trial and much legal wrangling, that’s what the judge did, and D.P. and R.M. appealed.

Now, given the fact that neither J.R. nor R.M was married to D.P., California law required the trial court to (a) decide which of the two was a “presumed father” and (b) if they both were, which had a superior right to custody.  Now, it was clear under the law that R.M. qualified as a “presumed father,” because he’d taken the boy into his home and treated him as his own child which he believed he was.  Good for R.M.

J.R., on the other hand had done no such thing.  He’d given D.P. some money during her pregnancy, but since the child was born, he’d never provided a home, love, medical care, food, or anything else a newborn needs.  But of course he’d failed to do those things for one reason only – D.P. had prevented it.

So the first issue was squarely before the trial court: can a mother prevent a biological father, who’s trying to play the paternal role, from doing so?  Does the mother control a father’s rights when he’s not married to her?  To their great credit, the trial court said ‘no’ and the appellate court agreed.

Paternity Fraud a Huge but Unacknowledged Issue

For decades now, we’ve seen every imaginable excuse made by courts for placing fathers’ rights in mothers’ hands.  It happens daily in countless different ways, and paternity fraud has long been one of them.  But at long last, we have a trial court ruling that it is “illogical to allow a mother to pick and choose the father.”  It’s indeed illogical, but it’s done all the time.  A lie here, a misrepresentation there, and the thing is accomplished.  No one knows how many children there are who believe a man is their father who isn’t.  The American Association of Blood Banks finds every year that, in the paternity cases their member laboratories conduct DNA testing for, 25 – 30% of the men who believe they’re the father aren’t.

Those figures of course don’t apply to the population generally because the AABB cases are those in which the man has reason to believe he’s been lied to.  My own efforts to come up with an across-the-board figure led me to a range of 7 – 10% false paternity for all live births.  If accurate, that would mean 290,000 – 420,000 children per year believing the wrong man to be their dad.  That’s between 5 million and 7.5 million children under the age of 18.

In other words, paternity fraud is a huge issue that state legislatures and courts do little to acknowledge and even less to discourage.  It’s long past time they did.

Having found that D.P. couldn’t prevent J.R. from becoming a presumed father, the trial court went on to rule that he had a right to custody.  That was mostly because he actively worked to provide what he could to his son.  He was obviously highly motivated to be the boy’s father and, once the court allowed it, began establishing a relationship with the boy who was then seven months old.  The judge had to decide if it was in the child’s interest to build a relationship with his biological father or have only R.M as his dad.  Both men loved the boy and the court put great emphasis on the fact that, if it ruled against J.R., the boy’s mother would permit no contact between him and his biological father.  That, the court said, was not in the boy’s best interests.

The reasoning of both courts is sensible.  It promotes the point of view that mothers should not be empowered to decide which man of their choosing should play the role of father to a child.  Men, in their opinion, should decide that for themselves.  Of such obvious concepts is the advance of fathers’ and children’s rights constituted.

All that said, the court’s decision has very real limitations.  First, the one and only reason J.R. prevailed is that D.P. and R.M. weren’t married.  California Supreme Court precedent enshrines the marital state as superior to that of any right asserted by a mere father.  So, if D.P. had been married to R.M. California policy is that J.R. cannot become a presumed father.  No matter how good a dad he might be, no matter how dysfunctional the marriage, the biological dad loses.  Incomprehensibly, the state tells unmarried women they can’t “pick and choose” the father of their child, but tells married women the opposite.  Paternity fraud by a single woman is frowned upon, but paternity fraud by a married woman is just fine, thank you.  You figure it out; I can’t.

Plus, J.R. only won the right to be a father to his child because he learned about the lad shortly after he was born.  He filed suit when the boy was four months old and began seeing him three months later.  As the court emphasized, R.M. barely had more of a relationship with the boy than that, so it didn’t make sense to prefer R.M.’s relationship with the child over J.R.’s.

Fine, but that’s just another way of saying that if D.P. had been a bit more clever at disguising her fraud, she’d have been home free and her son would never know his biological father.  If J.R. had found out about his son when the boy was, say, two years old, would he have prevailed?  Probably not.

So, far from taking power away from mothers to “pick and choose” their offspring’s father, the decision just requires them to be smarter about doing so.

Still, little by little, fathers’ rights to their children and children’s rights to their fathers make progress.  The law is nowhere near what it should be, but small victories show that attitudes about- and understanding of- the importance of fathers to children are changing for the better.

Thanks to Peter for the heads-up.

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