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February 15, 2015 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

This paternity fraud case brings up an issue that’s new to me (Nebraska Supreme Court, 2/13/15).

For years, the State of Nebraska did what a lot of states did when presented with a case of paternity fraud. Often, when a couple with children divorced, the husband didn’t contest paternity of the kids. He assumed they were his and went about the depressing business of paying to support children he loved but couldn’t see very often. But, as the kids grew up, he noticed that one or more of them didn’t look much like him, so he sent off for one of those handy-dandy DNA testing kits, dispatched the cotton swabs to the testing company and eventually received the news that, in fact, the child had been fathered by someone else.

He then went back to court to contest paternity only to be told that he was too late. The issue of paternity was res judicata, i.e. judicially established by the child support order. If he’d wanted to contest paternity, he was told, he should have done it at the time of divorce despite having no reason to believe the children weren’t his.

Across the country, state legislatures were rightly convinced that such an outcome was outrageous. So was I. My argument was (and is) that the law should place the onus of revealing the facts about paternity on the one with the information about that topic, i.e. the mother. After all, she knows with whom she’s had sex and, if it’s more than one man at or near the time of conception, she should be obligated to reveal the matter. Even if she doesn’t know the identity of one or more of the men, she should still be obligated to say that the presumed father (usually the husband) may not be the real dad. That would enable the court to order genetic testing to determine the matter once and for all. That in turn would save future confusion and heartache. All children would know their true fathers, the wrong man would not pay child support and the right man would. It would be a win-win-win situation.

But of course, that approach being imminently sensible, state legislatures rejected it. Instead, they (including Nebraska) enacted laws allowing divorced men to return to court later to contest paternity via DNA testing. Instead of a whole loaf, they gave everyone just half. The expanded ability to contest paternity was an improvement over the status quo. But by failing to require mothers to state the truth during the divorce proceedings, they allowed ignorance of paternity on the parts of both the father and the child to continue indefinitely, thereby making discovery of the truth all the more traumatic for all concerned.

It’s not a good solution, but it’s the one we have. Which brings us to the linked-to case.

Stacy M. and Jason M. were married for a time during which Stacy gave birth to three children. They divorced in 2011 when one of the children was an adult and the other two were minors. During the divorce proceedings, Stacy said nothing to suggest that the paternity of the younger child was in question and of course Jason didn’t know. So he was ruled to be the child’s father and ordered to pay support which he did. He also maintained an active and loving relationship with the child post-divorce. According to Stacy, the boy “thinks the world” of Jason.

But Jason began to have misgivings about paternity and so, two years later, he gathered the necessary tissue samples and had them tested. The results showed that he was not the biological father of the child.

So he went to court, only to learn that he faced a Hobson’s choice. Jason loves the boy and the boy dotes on Jason, so surely their relationship should continue. But another man is the boy’s father, so surely that man should pay to support the child that he helped bring into being. After all, that man must have a right to know his child and the child must have the right to know him. That’s particularly true for the child’s ability, now and in the future, to receive appropriate medical treatment. But it’s also true because one of the legitimate reasons we have biological parents pay to support their offspring is to establish their legal responsibility for the children they produce. To require B to pay to support a child a fathered is fundamentally unjust.

So Jason had a problem. He deeply loves the child and the child loves him. He wants to maintain a meaningful relationship with the child, but also to require the biological father to take up his legal duty of support. In short, he wants to separate the duty of support from the right of access.

The law doesn’t permit that. For Jason, and every man in his place, it’s all or nothing. He can continue seeing the child and pay to support him, or he can abandon both roles. But he can’t have rights without responsibilities.

Once Jason filed his action to suspend his obligation of support, but maintain his relationship with the child, Stacy for the first time made a claim to the court that I find very dubious.

[S] he alleged she did not know the identity of the child’s biological father, because she was “taken advantage of and [had] no knowledge of by whom.”

According to Stacy, she was having drinks at a bar with friends when she must have been drugged and then raped by an unknown person. Hmm. That one’s not passing the smell test. First, she never reported the alleged incident to anyone, not the police, not the bar owner, not her friends. So, once she got around to mentioning it in court, what did her friends who were supposedly present, say about her alleged rape? Apparently she’s never brought the matter up with them and they weren’t called as witnesses.

Whatever the case, Stacy is refusing or unable to identify the father of her son. To me it looks suspiciously like another case in which a mother decides whom she wants to be the father of a child and simply refuses to disclose that more than one man may actually be the dad.

So the question arises, “Why didn’t Jason simply go to court, vacate the finding of paternity, quash the order of child support and continue having an informal but full relationship with his child?” There’s absolutely nothing preventing that and the Nebraska Supreme Court as much as said he could vacate the finding of paternity any time he wishes. And of course he and the child get along well and each desires a relationship with the other. So why didn’t he just do the obvious?

I don’t have the answer, only my suspicions. If he gets a court to declare his non-paternity, he can stop paying child support, but he also loses all his enforceable parental rights. But he could still maintain a relationship with the child, right?

Maybe not. By choosing to no longer have parental rights, he’d be placing his ability to see the boy who thinks of him as his father in the hands of the boy’s mother, a person who’d no longer be receiving his child support checks every two weeks. So my guess is that his rather quixotic attempt at legally separating his rights from his duties came about because she refused to do the obvious and fair thing. The cost to him of non-payment is the destruction of his relationship with the child. The cost of maintaining that relationship is of course child support.

It doesn’t have to be that way. Fairness is an alternative here. But it’s one neither Nebraska law nor the mother’s choice makes available to Jason M.

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