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February 26th, 2012 by Robert Franklin, Esq.
The Nebraska Supreme Court has ruled that a married father may challenge paternity after his divorce from the child’s mother and, if his paternity is disproven, be relieved of his obligation to pay support.  Here’s the Supreme Courts opinion.

Jeremy and Alisha were married in 2001, but separated in 2006.   Still, love knows no season, and the two continued to see each other off and on.  One of those times occurred on Valentine’s Day, 2007.  By late March, Alisha announced that she was pregnant.  Her addiction to methamphetamine, she claimed, rendered her incapable of remembering with whom she’d had sex around February 14, 2007. 

Jeremy wasn’t so sure the forthcoming child was his, but didn’t have the money for genetic testing, so he tacitly accepted the child as his.  He saw the child weekly for a couple of years and paid child support as per his agreement with Alisha.  In 2009, Alisha filed for divorce.  Jeremy, still impecunious, didn’t contest the matter, signed an agreed-to parenting plan that included child support to be paid by him.  The judge approved the parenting plan with Jeremy, unable to afford an attorney, absent from court.

Shortly thereafter, Jeremy’s mother agreed to pay for genetic testing which proved Jeremy was not the child’s father.  So Jeremy asked the court vacate its order of divorce based on newly-discovered evidence.  The trial court refused to vacate the order and Jeremy appealed.

The state Supreme Court reversed the trial court saying that, according to state statutes, Jeremy may be entitled to be relieved of the obligation to pay support for a child not his for the next 16 years.

Now, you’ll notice I used the word “may.”  The court didn’t order the lower court to vacate its order, but rather to revisit same with regard to – you guessed it – the best interests of the child.  More about that later.

Apparently, no court in the state has been faced with this situation since 2008 when the legislature passed a statute allowing for contest of paternity in cases in which that has already been decided.  Prior to that, men who had been married and divorced without challenging paternity, were struck out.  That’s because in Nebraska, as in many other states, once a divorce decree is final, the issue of paternity, whether contested during the divorce or not, is considered res judicata, i.e. legally decided once and for all.

That meant that an unmarried man was in a better position to challenge paternity than a married one because the unmarried man’s paternity could never be considered decided by a court simply by the act of divorce.

So, given the new statute, the court ruled that a married man, despite the presumption of paternity against him and despite the divorce issued by the trial court, may have his paternity disestablished and not have to pay to support the child.

And that is where we come to the Best Interests of the Child.  The statute is not mandatory; it clearly says that the lower court “may” – but is not required to – disestablish the child’s paternity and relieve the man of his obligation of support.  One of the ruling factors in the matter is the BIOC.  Factors include the child’s age and the length of time since paternity was established, i.e. since the time of the divorce or, if paternity was acknowledged, the date of that acknowledgement.

Now, it may be hard to see how it could be in a child’s best interests to know a man as its father who’s not.  Among other things, a child needs to know, all its life, its genetic heritage for purposes of medical diagnosis and treatment.  Of course one man may provide the love and affection a child needs whether or not he’s biologically related to the child.  In that way, the child may come to think of him as its father, and the loss of that relationship, however it’s accomplished may prove emotionally difficult, even traumatic.

But, as I’ve said many times before, that’s exactly what courts accomplish thousands of times a day in the United States – the separation via divorce of a child from the man it thinks of as its father.  So when the courts cry “BIOC” in order to force a man to support a child not his, we know they don’t mean it.  We know that what they’re really doing is supporting the mother’s choice of child support providers.

That’s nowhere as evident as it is in Nebraska.  That state’s statute allows any “person” to challenge paternity, so apparently Alisha, or any mother, could do so as well as Jeremy or any father.  If the mother doesn’t challenge paternity, that probably means she’s satisfied with the man she’s selected to pay support.  If she does, she wants candidate B to do the job.

The courts will tell us that it’s not only the loss of the man known to the child as ’Daddy’ that’s important, but the introduction of another man – a stranger – into the child’s life.  That too is bunk.  We know this because courts never hesitate to do exactly that when Mom wants to divorce Dad and remarry.  Does that rock a child’s life?  You bet it does, but when it comes to adults divorcing, the question of BIOC never comes up.

The Nebraska decision is good enough as fathers’ rights go.  But it still leaves the father’s rights largely in the mother’s hands.  The longer she can convince him the child is his, the weaker are his chances of avoiding support of another man’s child and the weaker are the child’s chances of ever knowing the man who contributed half its DNA.

Until courts and legislatures create some real consequences to mothers of lying to fathers and non-fathers, state health officials, courts and juries about paternity, the disgrace of paternity fraud will continue to haunt men and children.

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