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February 12, 2016 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

The Nebraska Supreme Court has once again come down foursquare on the side of paternity fraud. And again, it wrongheadedly requires the defrauded man to in some way ascertain the truth of the matter about which he’s been defrauded and requires nothing of the person defrauding him. Fraud is everywhere frowned upon by the law and the courts – everywhere, that is, except regarding the paternity of children. There and only there, does the law enthusiastically endorses lying for the purpose of duping a man into or out of fatherhood.

There are two types of paternity fraud. In one a mother convinces a man that he’s the father of her child when in fact he isn’t and in the other, she convinces him he’s not the dad when he is. The latest Nebraska case is of the latter sort.

Now, the facts of the case are such that the father, Bryan M. could have figured out that he was the father, but, for a variety of reasons, he didn’t. By the time his child was eight, he finally ascertained the truth, but by then, it was too late. Nebraska has a four-year statute of limitations on asserting or contesting paternity.

Appellee, Anne B., and intervenor, Adam B., have been married since May 1999. During the first 5 years of their marriage, Anne and Adam unsuccessfully attempted to conceive a child. Appellant, Bryan M., has been married to his wife for more than 25 years, and they have two children.

In the fall of 2003 until spring 2004, Anne and Bryan engaged in an extramarital affair in which they regularly engaged in sexual intercourse without contraception. During the affair, Anne continued to have regular sexual intercourse with both Bryan and her husband without using contraception. When Anne became pregnant, she broke off her relationship with Bryan. Bryan inquired several times whether he was the father of the child and was told that he was not. After the child, T.B., was born in 2004, Bryan again asked Anne whether he was the biological father. Again, he was told that he was not the father. Since T.B.’s birth in 2004, Adam has raised T.B. with the belief that he is T.B.’s father. Adam has served as T.B.’s father for T.B.’s entire life. Since T.B.’s birth, Bryan’s contact with Anne and T.B. has been limited to occasional, unplanned meetings.

In 2012, Anne and Bryan resumed their extramarital affair. When the relationship resumed, Bryan requested a DNA test to determine whether he is T.B.’s biological father. A DNA test performed at an Omaha, Nebraska, medical center revealed a 99.9-percent chance that Bryan is T.B.’s biological father.

So, over the course of eight years, Anne lied to Bryan again and again, always telling him that Adam was the father of the child. Bryan believed her and of course made no effort to establish paternity for T.B. That alone makes a pretty good case of fraud on Anne’s part. (The chances are at least fair that she told Adam the opposite lie, that he was the child’s father.)

But there were other considerations. For one thing, Bryan apparently didn’t want a relationship with T.B. for most of the child’s life. That’s because he was married and didn’t want evidence of his extramarital affair to get to his wife. More importantly, he knew when the child was born and presumably could subtract nine months from the birth date and conclude that, whatever Anne was saying, he mathematically could be the dad. And he could have asked for a DNA test at any time. Had Anne refused, he could have filed a paternity suit in court and had the child tested whether Anne liked it or not. So it’s unquestionable that Bryan had reason to question Anne’s claims and the relatively easy means by which to test them. He waited eight years to do so, four years after the statute of limitations had run.

In a nutshell, that’s what the trial court ruled and the Supreme Court affirmed. You can’t be the victim of fraud if you have reason to disbelieve the statement of the other person and the means to find out whether it’s true or false. As much as I oppose paternity fraud as immoral, terrible for kids and an outrage against not one but two men, I don’t have a lot of sympathy for Bryan M.

But still…

What seem to be the eternal verities of paternity fraud remain, and regardless of what Bryan could have done on his own behalf, they still cry out for reform.

First, the result of the Court’s decision is to once again reward lying by a mother. For whatever reasons, she obviously wanted Adam to believe he was the father and Bryan to believe he wasn’t. My guess is that hers were the same reasons as Bryan’s. She was married and didn’t want to blow the whistle on her own marital infidelity by revealing the paternity of the child (or that there was a question about paternity).

I maintain that laws should, wherever possible, penalize lying in legal proceedings. That seems an unquestionable concept and one that’s generally upheld by the law, but not, as I mentioned earlier, in paternity fraud cases. In those cases only does the law reward untruth as a matter of law.

Second, in order to reach its result, the court engages in some bizarre reasoning – bizarre and sexist. It more than once states as fact that it was “impossible” for Anne to have known who the father of the child was at the times she told Bryan it wasn’t his. That of course is patently false. The child lived with her. On any day, she could have purchased a kit from a DNA laboratory, swabbed the child’s mouth, obtained DNA from her live-in husband, sent the samples off and, in a matter of weeks, she’d have known the truth.

By contrast, the Court excoriates Bryan for not performing DNA testing himself. Indeed, the very outcome of the case hinged on his having failed to do so, despite the fact that it would have been far harder for him than for her. How would he have gotten the necessary tissue sample from the child?

In short, the court imposed a burden on Bryan that it refused to impose on Anne, despite the fact that her burden was far lighter than his.

That brings me to one of the main problems with the law’s approach to paternity fraud – it places the onus of learning the truth on the party who doesn’t have the necessary information, and relieves the person with the information of the duty of divulging it. In all these cases, the woman knows with whom she’s had sexual intercourse, but a given man only knows that he’s had sex with her. Therefore, if more than one man may be the father, she knows that paternity is uncertain but, in all likelihood, neither man does. Therefore, the law should require her to disclose the facts about paternity as she knows them, affording to all the opportunity to establish paternity accurately and for good.

But no, again as nowhere else in the law, we place the burden of figuring out the truth on the person least able to do so while demanding nothing of the person who can.

As a side note, the Court preaches long and loudly about the necessity to act promptly and the virtue of “family stability.” Of course just what’s stable about a married woman with a longtime lover and no notion of who the father of her child might be goes undiscussed.

But consider this: what would happen if Anne and Adam divorced and she received welfare benefits? That’s right, the state would go to Bryan for repayment because, after all, he’s the biological father. The State of Nebraska ruled that he has no parental rights based on its statute of limitations, but federal law doesn’t care a tinker’s ‘damn’ about that. The feds want their money and only the biological dad is to provide it. And, having done so, Bryan would morph, by operation of law, into T.B.’s father, complete with rights and the duty of support. That could happen at any time.

How’s that for family stability?

Back in 2014, I posted another piece on yet another outrageous Nebraska SC decision in yet another paternity fraud case. Here it is. What I said there is applicable in Bryan’s case.

First, men who father children should be the children’s fathers. If a child is biologically half a man’s, that man should have rights and duties to the child. Concomitantly, if he doesn’t father a child, he should have no rights or duties to the child. I know that’s a concept that’s far too simple for most lawyers and judges to grasp, but consider all the time, energy and public resources that would be saved if all paternity law began with those two related ideas.

I read family law from states around the country and countries around the world and am continually struck by certain things. One is just how complex those laws make fathers’ rights and duties. This becomes all the more clear because they invariably stand in stark contrast to the laws on mothers’ rights and duties. Where is the law that says an unmarried mother must jump through all the legal hoops an unmarried father must, just to secure her parental rights? Legal procedures, acknowledgements of parenthood, genetic testing, motions to file, lawyers to hire? Mothers don’t have to do any of that, so why should fathers?

Why not genetically test every child and every man named as its father when the child is born? Why not establish paternity that way, the certain way? And once that’s done, why not give the man parental rights and the obligations that go with them? It’s simple, it’s reasonably quick and most importantly, it’s certain. No more paternity fraud, no more multiple “fathers,” no more lawsuits, no more claims by outraged men who’ve been duped into paying for children who aren’t theirs. Along with everything else, just reading the Nebraska Supreme Court’s opinion in Brian F.’s case makes it clear just how much time and judicial resources have been expended in deciding Brian’s case, and it’s not over yet. The Court remanded the case to the trial court. Brian may still have the opportunity to prove his case for a downward modification.

In the same vein, states should require their child support enforcement agencies to pursue only actual fathers, i.e. not men who aren’t the fathers of children in need of support. One of the salient, albeit barely mentioned by the Supreme Court, features of Brian’s case is the fact that the state has known for at least five years who the true father is and yet it continued pursuing Brian, the man it knew is not the father, for support. At any time in the proceedings, including now, the state could have simply discontinued legal action against Brian, and sought support from the actual father. Or, now that the child is in the care of his biological father, it could do the unthinkable and demand support from Shirley M. But no, it’s got a fraudulently obtained order against Brian and that’s what it’s seeking to enforce.

Finally, states should do yet another unthinkable thing; they should place a legal duty on mothers to correctly identify the fathers of their children. After all, in all but the rarest of cases, women know with whom they’ve had sex, and, if they’ve done so with more than one man near the time of conception, they should be legally required to identify each such man. That way, at birth, each man and the child could provide specimens for DNA analysis and the issue of paternity would be forever decided, not just legally, but factually.

No man should either gain or lose parental rights because a woman couldn’t be bothered to tell the truth about the paternity of her child.

These are easy-to-apply concepts. If enacted into law, they’d make everyone’s life much simpler, more predictable and less stressful. Into the bargain, they’d significantly reduce the need for state resources to untie the Gordian Knot of paternity fraud that benefits no one and harms at the very least two men (the actual father and the fraudulently-named man) and one child who believes one man is his/her father only to find out later in life that a stranger is.

But no. We’d rather the courts be expensive, unpredictable and unfair than require basic honesty of mothers about one of the most important thing in any man’s, and any child’s life. It’s just how we roll.

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