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NPO publishes blog articles to inform and to stimulate conversation about issues of importance to NPO's mission.  All blog articles express the opinions of the authors as individuals and do not necessarily reflect the views of National Parents Organization, its Board of Directors, or its executives.  

August 2, 2013 by Robert Franklin, Esq.

It’s another case of paternity fraud (Madison Record, 7/30/13). In this one, an Illinois woman, Edwardstine Reese, had a child and named Lekardo Pitts as the father. Apparently the two were never married, but Reese wanted child support, so she went to court, told the judge Pitts was the father and was awarded support which Pitts duly paid, to the tune of over $30,000.

Fast forward to the present and we find Reese married and wanting her current husband to adopt the child. But he can’t do that if another man is the child’s father and hasn’t had his parental rights terminated. So Reese went back to court to demand a DNA test that, curiously, she didn’t request in her suit against Pitts.

Sure enough, the test was performed and showed that Pitts isn’t the father, so now he’s filed a suit against Reese demanding his $30k back plus $100,000 in punitive damages for her fraud. The good news is that Illinois is one of six states that recognize a civil cause of action for paternity fraud, but there’s one reason Pitts might not win.

Believing he was the father, Pitts waived his right to undergo basic DNA testing or blood testing to confirm the validity of Reese’s claim that he was the father, the suit states.

What I fear about the outcome of this case is that the court may tell Pitts in effect that state law allows him to sue Reese, but he can’t get any damages for money paid after the date of his waiver of genetic testing because he had the opportunity to minimize his damages then, but refused to do so. In short, his suit may end up with him winning, but not recovering any damages.

On the other hand, we can expect Pitts to argue that the waiver was brought about by fraud. After all, that’s what fraud is – convincing another person to change his legal position based on factual misrepresentations or the failure to provide material information about the “transaction.”

That of course is exactly what Reese did. She told Pitts he was the father – that there could be no other – and he believed her. Because of her fraud, he paid money he otherwise wouldn’t have paid.

Consider the sale of a used car. If the seller knows, for example, that it’s been in an accident, but doesn’t tell the buyer, the buyer, like Pitts, can ferret out the information for himself, but the law doesn’t require him to. It places the duty of disclosure on the person who knows the facts. In the case of the car sale, that’s the seller; in the case of Pitts and Reese, it’s Reese.

And given that Illinois already recognizes a civil cause of action for paternity fraud, it places the onus of providing all material evidence about the matter of paternity on the mother. That is, she’s the one with the material information. She’s the one who knows with whom she had sex around the time the child was conceived. Lekardo Pitts doesn’t know now and didn’t know then that Reese had (or was having) sex with another man, but she did know.

But when it came time to claim child support, she didn’t tell him “Hey, I think it’s you, but it might be this other guy.” No, she never let on about any other man either to Pitts or to the court. In filing a legal claim for child support, Reese unquestionably stated in her pleadings, probably in a sworn affidavit and possibly in sworn testimony that Pitts was the father. That means she not only defrauded Pitts, but lied to the court as well. Depending on just how that came about, she may have committed perjury. In so doing, she induced Pitts to waive his right to genetic testing.

So, from where I sit, Pitts ought to win his lawsuit against Reese. Whether he’ll ever collect a penny is another story, but several principles are at issue here.

First is the all-important one of on whom states place the burden of finding out who the father is in child custody/support cases. As it is, only six states recognize a cause of action for paternity fraud and five outright prohibit one. The rest haven’t decided.

As in every case of fraud, commercial or parental, the law can only be sensible if it places the burden of disclosure on the party who knows the facts that need to be disclosed. In commercial transactions, we long ago gave up the notion of caveat emptor, or “let the buyer beware.” That notion required the buyer to figure out what, if anything, was wrong with the item he bought. That proved unworkable and unfair to purchasers because almost invariably, it was the seller who had the information about the item’s defect. It made sense to require him to disclose what he knew.

The same is true in paternity fraud cases. Essentially without exception, the mother knows whether she had intercourse with more than one man around the time of conception or not. If she did, she should be under a legal duty to disclose the fact so that genetic testing can be performed and the right father located. Placing the burden on the father is not only asking him to in some way intuit his partner’s behavior, but also risking an enormous waste of resources. After all, if there’s not duty on the mother to disclose, pretty much every man named will want to have testing done even though most of those mothers are telling the truth.

Another principal at stake is the matter of damages. Certainly every penny in paid in child support to a mother who commits paternity fraud should be repaid. If she can’t do it in a lump sum, there would be a certain poetic justice in ordering her to pay it monthly, just like he did. Punitive damages are appropriate as well, just like they are in most instances when a civil wrong is intentionally committed.

Then there’s the matter of perjury. Every time a mother files a divorce action and swears that the children involved are “children of the marriage,” she’d making an affirmative statement that the court and the other party ought to be able to rely on. Again, if she has any reason to doubt that the children were fathered by her husband or whoever is the other party in the case, she should be required to say so. Just as with the man, she should have an affirmative duty to tell the court the truth.

Finally, there’s this principal for men only: Never waive your rights to a DNA test! Never. Even if you’d trust the woman with your life, as Ronald Reagan once said, “Trust, but verify.” Until recently, it was the law in Texas that if a man divorced, any children claimed to be of the marriage were legally his if he didn’t contest paternity in the divorce proceeding. That’s no longer the law in Texas, but the point is that states generally resist the idea of holding mothers accountable for their fraud. In short, states don’t protect men in this situation, so men have to protect themselves.

Lekardo Pitts didn’t do that and he should have. He may yet be saved from the error of his ways, but it would have been far better if he’d just taken care of himself in the first place.

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#Paternity, #Pitt, #Reese, #DNA, #Madison, #Illinois, #Parents

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