December 30, 2013 by Robert Franklin, Esq.
Paternity fraud is one of the least acknowledged problems in the whole area of children and parental rights and duties. Issues like child custody and child support we see every day and make up a huge part of the public discourse on the evolving rights and roles of fathers. But paternity fraud, despite its clear injustice to both fathers and children continues to mostly fly under the radar.
Astonishingly enough, no one has ever attempted to comprehensively study paternity fraud. What percentage of children are unknown to their actual biological father? What percentage of those children have “fathers” who in fact have no biological relationship to them? The simple answer to each question is “we don’t know.”
Prior to genetic testing, various methods were used to ballpark the figure, but their results varied wildly from about 1.5% all the way up to 29.9% in one study by the American Association of Blood Banks, the organization that certifies and inspects blood banks and DNA testing laboratories. The latter figure is almost certainly far too high; the sample was of men who were contesting paternity in legal proceedings, meaning they already had some reason to believe they weren’t the dad.
Back in 2000, I attempted to put a figure on paternity fraud and came up with between 6.9% and 10% of newborns who were either unknown to their true father or who had a “father” who was biologically unrelated to them. But that effort was imprecise, relying on assumptions necessitated by the absence of hard data.
When such basic information about a topic is lacking, it’s easy to conclude that the matter is poorly addressed by laws and regulations and that’s certainly the case with paternity fraud. In a nutshell, the great majority of statutory schemes are mostly intent on identifying a father of a child born to an unmarried mother and tagging him with child support. Money is the most important issue to which everything else takes a back seat.
One of those things to take a back seat is the truth. The fact is, we don’t too much care who we order to pay child support just as long as someone does. So it’s not uncommon to see state attorneys general playing fast and loose with whom gets notice of a paternity proceeding against a potential father. So if the John Smith or Juan Gonzalez who gets the notice of the paternity action in fact had nothing to do with the mother, and makes the mistake of not showing up to contest the matter, he can end up paying child support regardless of the fact that he’s a complete stranger to both mother and child.
Several years ago, that practice became so common in California that one fed-up judge simply refused to continue the practice. He did that despite the fact that his oath of office required him to follow the law that in turn required him to order child support paid by men who plainly weren’t fathers.
Another way in which paternity fraud is essentially ignored is the almost entire absence of states that allow defrauded men to pursue civil actions against mothers who lie about their paternity. To date, there are five that allow such suits to go forward and a similar number that prohibit them. The rest of the states haven’t considered the matter worth dealing with.
Then there’s the matter of the mothers who are supposedly required by law to tell the truth when giving information for birth certificates and again when signing affidavits of paternity for use in establishing child support orders. In cases of paternity fraud, they obviously ignore the requirement of truth-telling, but if a mother has ever been sanctioned or made to suffer any sort of legal consequence for her wrongdoing, I’ve never seen it, and I’ve been studying paternity fraud for 15 years. Why are mothers given a pass for their refusal to tell the truth? I can’t say, but I do notice that that’s all of a piece with courts’ refusal to punish them for lying about spousal abuse, child abuse or for refusing to abide by visitation orders.
Finally, there’s the fact that, when a mother lies about who the father is, she not only harms her child in numerous ways, she also harms the man she wrongly identifies as the father and the true father whom she fails to inform. Potentially, she also harms the taxpayers of the state in which she lives. After all, when the state attorney general’s office is forced to jump through hoops, first to prove paternity against the wrong man and then to defend that mistake against the right man, taxpayers are shelling out money they shouldn’t have to.
So our wholesale willingness to give mothers a pass for paternity fraud harms a lot of people. It’s strange that we allow it to continue.
Now, to those who claim that mothers who fail to identify the correct father are simply making an honest mistake and shouldn’t be punished, let’s be clear; they have the knowledge required to figure out who the father is and who he isn’t and should be required to provide it. In the overwhelming majority of cases, a mother will be the only one to know with whom she had sex around the time of conception. If it was more than one man, she should be required to inform the men that they may have a child and the state that there’s more than one possible father.
If she does that, both men can give DNA samples and the correct one be identified as the father from the outset. That would save much time, expense and heartache on the part of all concerned, but no state imposes the simple requirement on any mother that she tell the truth about who may be the father of her child.
The result is often a horror show like this one (WREG, 5/2/13). Edward Bowdery of Memphis, Tennessee was tagged as the child’s father before the boy was even born. He never signed an acknowledgement of paternity, never signed the birth certificate, never said he was the father, never played the part of father to the child. But, based solely on the mother’s word, was adjudicated as the father and made to pay child support.
In vain did Bowdery request DNA testing to prove who was the father. He did so many times only to be told that no testing would be done. Over many years, Bowdery was arrested, had his driver’s license suspended and endured other punishments for failure to pay what the mother and the state said he owed.
Finally he took the child to a testing laboratory, got him and the boy tested and learned that there was a 0% probability that he was the father. The court ignored that too, but finally ordered testing done. The result of course was the same.
But no matter. Bowdery was still required to continue paying for a child who’s not his, a fact he’d been telling courts for years. As of now, Bowdery is no longer required to pay future child support, but must still pay what he owed prior to the DNA test.
Reading between the lines, I suspect that, while the child was still in utero, the mother identified Bowdery as the dad. He may or may not have been informed of the fact, but my guess is that he was sent a notice of the hearing on paternity which, for whatever reason, he ignored. Having failed to show up in court, the judge issued a default judgment and Bowdery was established as the child’s father. Every subsequent time he tried to get testing done, the judge said something to the effect of “You had your chance. Paternity has been decided.”
Of course Bowdery should have paid attention to the original summons, assuming he even received it. But once again, the law’s preference for money over the truth and over a child’s well-being is stark. Nothing Bowdery did or didn’t do was as illegal or shocking as what the mother of the child did. She lied to the court and state authorities at the bureau of vital records. She said “Bowdery is the dad,” instead of the truth which was “I’m not sure who the father is; it could be Bowdery or this other guy.” Had she done so, the court could have sorted out paternity from the start and much money and emotional pain could have been saved. A lot of taxpayer money could have been saved too. Most importantly, a child would have grown up knowing who his father is.
Bowdery is talking about suing the mother and, as luck would have it, he happens to live in a state that recently established a civil cause of action for paternity fraud. Whether his suit will succeed or whether he’ll ever see a dime of the $30,000 he’s paid out remain to be seen.
Meanwhile, he’s still paying for a child who isn’t his, the true father is picking up where Bowdery left off, the mother has received criticism from no one and a child’s life has been thrown into turmoil. That’s the nature of paternity fraud that states seem so happy to see continue.
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