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January 13th, 2012 by Robert Franklin, Esq.
As I’ve said many times, American family law has a genius for placing fathers’ rights in mothers’ hands.  More accurately stated, it’s the exercise of fathers’ rights that the law allows mothers to control.  I know of no law that specifically states that Mom decides whether Dad has rights.  But when it comes to actually exercising them, fathers often seem to find themselves second in line behind mothers.

It’s true in a variety of situations if Mom and Dad aren’t married.  Adoption and paternity fraud are the obvious culprits, but visitation is another.  And here, it turns out, is yet another (Leagle, 12/28/11).

As readers of this blog know, several states have recognized the injustice of allowing mothers to choose who they want to be the father of their children if he’s not actually the dad.  They’ve taken steps to remove one of the more odious consequences of paternity fraud – paying child support for a child who isn’t his.  So states like Texas and Florida have passed laws allowing fathers to have genetic testing of a child performed at any time.  If the man turns out not to be the father, he no longer has to pay child support.  Any accrued arrearages must be paid, but no future support will be ordered.

It’s a significant step in the direction of simple justice.  But…

The case linked to shows that, once again, the devil is in the details and the details protect, not the defrauded dad, but the mom who defrauded him.

It seems that the father, G.A.T. and the mother, M.J.W., had a child, J.L.T.  The dad somehow got wind that all was not right in his world, so he filed suit to disestablish paternity and be relieved of his child support obligation.

In the petition and his affidavit, G.A.T. denied that he is the father of the minor child and that fraud and duress by the mother and his own family induced him to acknowledge paternity. He further alleged that the mother has told him that he is not the biological father of the child.

In short, he claimed she defrauded him and later admitted the fact.

So G.A.T. knew just what to do; the law now protects him, right?  And sure enough, the trial court in which he’d filed his claim ordered everyone to show up, have the inside of their mouths swabbed and the specimens tested to see if he’s the dad and needed to continue paying support or not.

But Mom had an answer for that; she just didn’t show up with the child at the time and place the court ordered.  Now, you’d think that her refusal to do what the court had ordered would mean that G.A.T. would win.  That’s what usually happens when a litigant fails to appear for a hearing or trial.  They can’t very well present the evidence required to prevail if they don’t show up in court.

That’s what the trial judge thought too.  He/she issued an order finding that G.A.T.’s paternity of J.L.T. had been disestablished and that he should cease paying support.  That all made perfect sense to everyone but the appellate court.

The state Department of Revenue, who was of course acting as Mom’s attorney free of charge to her, appealed the ruling and won.  The appellate court reversed the ruling and remanded the case to the trial court.  Why?  Well, it seems that the trial court didn’t make a finding that M.J.W. had acted “willfully” in failing to show up for the collection of tissue.

Now, it’s true that the statute requires such a finding, so the court seems to have acted correctly.  But here’s the rub:  how can the trial court make a finding that her non-appearance was “willful?”  She’s not there, so who’s to say?  Maybe she was in a car wreck, forgot about the hearing or was temporarily insane.  These things happen, and in her absence, who can produce evidence of willfulness?  The appellate court offered no guidance on that subject.  If she’s present, the whole issue is moot.

It’s taken two years for the appeal to be decided.  Now that the trial court has been reversed, does G.A.T. all of a sudden owe the two years of child support that accrued in that time?  My guess is he probably does although I can’t say for certain.

What if the trial court sets another date for Mom and the child to give specimens and they once again fail to appear?  Does G.A.T. have to keep on paying until she decides to put in an appearance?

I’d say it’s a distinct possibility.  But whatever the case, the mother in this case has at the very least bought herself a couple of years of child support and thwarted the plain intent of a state statute into the bargain.

Then there’s the fairly obvious fact that, if she really thought G.A.T. were the father, wouldn’t she have come to court with the child to prove it?  It doesn’t take a rocket scientist to figure out what she’s up to.

As a sidelight, let’s not overlook the fact that, once again, the state agency that enforces child support chose to litigate against a man who apparently isn’t the child’s father rather than finding out who is and going after him.  It’s typical behavior.  Often enough it seems that those state agencies, like the moms who defraud men about paternity, don’t much care who the dad is just as long as the money keeps flowing.  Great minds think alike.

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