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January 15, 2017 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

I think I’m finally beginning to understand. It’s taken a while. After all, I’ve been writing daily about these issues for more than eight years now, but I may finally be seeing a pattern to family court pronouncements. It’s something like this: we want fathers out of their children’s lives, but we want non-fathers in the lives of children who aren’t theirs. Or maybe it’s as simple as this: whatever the dad wants, we do the opposite.

Just three days ago I posted a piece about a Florida man, Christopher Farrell, who’d do anything to be able to be a part of his child’s life, be a father to him and raise him. But the State of Florida says “No.” That’s because the boy’s mother is married to another man, so Farrell is, regarding his son, a non-person. As I pointed out, that’s purely provisional. Should Mom receive welfare benefits, all of a sudden, Farrell will become a valued member of the child’s family. He’ll be told to repay the state and, in exchange, will all of a sudden have parental rights.

In my piece on Farrell, I referred to a previous piece on Utah native Jose Vargas who’s fighting the state to be a part of his daughter’s life. The state wants her to be adopted, even though Vargas seems to be a fit and loving dad. Certainly no one’s proven to the contrary. My guess is that Vargas doesn’t have the money to fight the donnybrook Utah has in store should he pursue his rights.

Fit, loving biological fathers those two may be, but their respective states are dead set against their having anything to do with their children. But in Oklahoma, we have still a different story, that of a man identified only as “Thomas.” (5 News Online, 1/12/17)

When Thomas’ high school girlfriend got pregnant, he married her. Five months later she had a little boy and he believed he had a son, but their marriage fell apart.

Thomas decided to take a paternity test when the boy was three years old.

“It comes back zero percent. I was in my office and I saw that. I should’ve expected it but I didn’t and it hit me. I’m telling my co-worker how shocked I am that someone could do this to someone,” he said.

The judge ordered Thomas to take another DNA test and he got the same result. The judge first ruled that Thomas was off the hook financially, but then reversed the decision because Oklahoma law says men must question paternity within two years of the child’s birth.

Yes, a man who’s not the child’s father and who apparently would prefer not to raise another man’s child is stuck, by state law, in the role of fatherhood. Oklahoma law apparently gives him two years from the child’s birth to demand a paternity test. Thomas didn’t know about the time limit and waited too late to discover the truth, so (a) he’s required to pay child support for a child who’s not his, (b) some other man somewhere is not required to support a child he helped create, (c) the same man is denied any relationship with or knowledge of his child and (d) vice versa.

The hypocrisies and inconsistencies are coming fast and furiously. For one thing, one of the core concepts of child support is that, if a man makes the decision to create a child, he should take his share of the responsibility for supporting it. But of course Thomas didn’t create the child, so he should bear no responsibility. Meanwhile, another man did create the child, but he bears no responsibility. Make sense?

Then of course most statutes of limitations set as their starting point a date at which the potential plaintiff “knew or should have known” he/she had some sort of legally cognizable claim. That is, the law rightly doesn’t penalize people, by removing their ability to pursue their legal rights in court, for not knowing about a legal harm done to them.

Except in Thomas’s case. There, the fact that he had no idea he was the father makes no difference. In fact, he was married to the child’s mother, but, according to Oklahoma law, he was supposed to somehow figure out he wasn’t the dad and then take steps to prove it, all within two years of the child’s birth.

That violates yet another all-but universal legal concept – that the one with knowledge of a particular fact of legal import is the one who’s required to disclose it. So, if the seller of an automobile is aware of a defect in it, he/she’s required to disclose it to the buyer rather than the buyer being required to discover the problem.

But when it comes to paternity, Oklahoma adopts a “buyer beware” attitude. That is, in order to protect himself against fraud, every man should demand a DNA test soon after the birth of a child, just in case it might not be his. The sensible thing of course would be to require the mother to disclose the fact that the child may not be the offspring of the man who thinks it is. She’s the one who knows with whom she’s had sex and if more than one man may be the dad, she should be required to say so. That way, all parties could sort out the matter of paternity at the outset, the child would know its father from the start and there’d be no reason for costly litigation.

But no, Oklahoma puts the burden of acting, not on the person who has all the pertinent facts, but on the person who doesn’t. Again, make sense?

(As a sidelight, Texas had a similar statute of limitations until a few years ago when the state Supreme Court invalidated it as contravening the state’s constitution.)

Then of course there are other obvious problems with Oklahoma’s approach to paternity fraud. For many reasons, a child needs to know its actual father. Medical reasons are the most obvious, but a child may stand to inherit money from its father or receive survivors’ benefits should Dad die in the armed services or elsewhere before the child becomes an adult. Standing between a child and its biological father has literally nothing to recommend it, but that’s what Oklahoma does.

Plus, encouraging dishonesty by mothers makes no sense. At any time during this child’s life, Mom could have mentioned the fact that she wasn’t sure who its father was, but at no time did she do so. That’s likely because, for whatever reason, she preferred that Thomas play the role of Dad and so removed the actual father from the child’s life. Endorsing fraud can’t be defended, but that’s what Oklahoma law does.

Nor can the control of a man’s parental rights by a mother. As a general principle, individual rights should be exercised by the individual, not someone else. Exceptions are for children who legally can’t exercise their own rights and mentally impaired people for whom a guardian must be appointed to act in their stead.

But Thomas, and presumably the child’s true father, don’t fall into either category. They’re both fully capable of acting for themselves, but Oklahoma law doesn’t permit it. On the contrary, it allows Mom to invest Thomas with parental duties he doesn’t want and to deprive the other man of parental rights he may well strongly desire. The U.S. Supreme Court has called parental rights “far more precious than property rights,” but allows states to place one parent’s “rights” in the hands of another.

Oklahoma law treats both men like children and the mentally impaired while treating Mom more like a sovereign imbued with the power and wisdom to act for them. As such, it’s an outrage against common sense and the most basic notions of American jurisprudence.

The law should be repealed. Mothers should be required to identify all possible fathers of children they bear. There should be no statute of limitations on genetic testing done for the purpose of establishing or disestablishing paternity.

 

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