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August 30, 2017 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

It’s not a new case, but, in view of tomorrow’s post, a relevant one.

The State of California held a non-father responsible for supporting a child who’s not his and whom the mother appears to have known wasn’t his. The clown act that led to the ruling is enough to force the conclusion that states should (a) test each child for paternity immediately after birth and (b) require each woman giving birth to identify the correct father of her child. As to (b), if more than one man is potentially the father, she should be required to name each possible father.

In the case in question, back in 1992, Taron James and Tami Burton had a brief affair. A member of the U.S, Navy, James was soon deployed to the Persian Gulf as part of the Gulf War. Burton gave birth to a child and named James as the father on the birth certificate.

At the time of the birth, James was on military duty in the Persian Gulf and unaware of the child’s birth. He first learned of the birth when Burton contacted the Navy seeking to obtain child support payments through his military benefits.

James denied he was the baby’s father, and the Navy informed Burton that she and James would be required to undergo genetic testing in order for child support payments to be issued. Additionally, the Navy said it would grant James leave to participate in the testing upon his return to the U.S.

Burton did not pursue the testing, however. Instead, she abandoning her claim with the Navy and applied for child support benefits through Los Angeles County, naming James as her son’s father.

To me, that looks very much like Burton knew James wasn’t the child’s father and decided on a more surreptitious route to his wallet. After all, if she was sure he was the dad, or even reasonably sure, why not just continue with the original claim?

In 1994, the district attorney filed a complaint to establish James’ parental relationship with the child and his obligation to pay child support. The complaint was served on James, but he failed to respond.

As a result, a default judgment was entered against him in 1996 declaring him to be the father and ordering him to pay $121 a month in child support through the county.

But, as cases like this so often go, James wasn’t actually served, or at least not exactly.

Marc E. Angelucci, a Glendale attorney representing James on appeal, the only complaint he ever received was one addressed to a “Teodoro Alfonso Martinez.” After taking the complaint to the county to inquire about it, he was told that there was a paternity action pending against him, Angelucci told the MetNews.

The county acknowledged its error in addressing the complaint to the wrong individual, but told James to wait until further notice when he said he wanted to challenge the paternity claim, the lawyer continued.

He heard nothing from the county after that point, and did not learn of the paternity judgment until his driver’s license was suspended eight months after the judgment’s entry, Angelucci said.

So in fact, the citation issued to James was issued in a completely different name. No law I’m aware of calls that proper notice of a legal action of any kind. Still, James did what he probably figured was his due diligence in the matter; he went to the county and found out that the matter really did involve him. But then he made his big mistake. He believed the county when its employee assured him that he’d get further notice and an opportunity to contest paternity.

Now, the facts of the case make it clear that, from the very beginning, James intended to contest paternity. When Burton sought child support through his military pay, he claimed he wasn’t the father. So it’s inherently unbelievable that James was negligent in doing so when he learned of the county’s action against him. He never believed himself to be the dad and always wanted an opportunity to prove it.

But the county flim-flammed him, assuring him he’d get his chance and then going to court and telling the judge that James had been served and to take a default judgment against him.

It was duly done, and James started paying Burton child support.

But James wasn’t finished. Five years later, in 2001, he finally got a court to rule that he’s not the child’s father and to stop all future child support obligations and any actions for arrearages. The reported case is his attempt to obtain reimbursement for the amounts fraudulently taken from him. He failed.

The trial court ruled and the appellate court agreed that California law clearly prohibits reimbursements for wrongly obtained child support.

Sec. 7648.4 expressly provides that, following the set-aside of a paternity judgment, “[t]he previously established father has no right of reimbursement for any amount of support paid prior ot the granting of the motion.”

Writing for Div. Eight, Justice Paul Boland said a plain reading of the statute precluded reimbursement.

Adding that such a reading was consistent with legislative intent, he explained:

“The section was intended to protect a declared father who, under existing law, lacked the procedural means to set aside or vacate an existing paternity decree after genetic testing determined he was not the biological father. While the statutory change was designed to enable a declared father to challenge a paternity decree, it was also intended to safeguard the child.”

The point being that, if a non-father were to be able to collect money paid as child support due to the fraud of the mother, the child might end up in a precarious financial situation. But of course that wouldn’t happen in James’s case. Why? Because he wasn’t suing Burton, only the county. Any reimbursement would come from the public entity, so the child would remain unaffected.

One justice, Laurence Rubin, pointed that out. He also pointed out that reading the statute to permit reimbursement from the county would actually further the intent of the legislature.

That warning, Rubin said, appears not to apply to reimbursement of funds paid to a public agency.

Additionally, he wrote, a public agency could repay a once-assumed father in James’ position without imposing any financial hardship on the child or mother.

“Permitting reimbursement under these situations would actually further the legislative mandate of the Child Enforcement Fairness Act of 2000 which, as noted, exhorts all enforcement agencies to ‘correct any injustice’—not merely to cease perpetuating injustice—to those mistakenly identified as support obligors,” the justice concluded.

Yes, despite the clear intent of the legislature to “correct any injustice” in the ordering of child support, both courts decided to let the injustice against James stand. Apparently, this made sense to them, if not to the rest of us. More amazingly still, Rubin voted to deny James reimbursement.

As I’ve said before, there are sensible ways to avoid this type of travesty. The most direct one is to ascertain the paternity of every child at birth. Another less reliable but entirely just way would be to require mothers to tell the truth about their children’s paternity. Incomprehensibly, we have for decades had an administrative system in place to “establish paternity” of children born to unmarried women, but nowhere do we require mothers to tell the truth about who the fathers of their children are. Unsurprisingly, often they don’t.

It is altogether strange that the federal government extols the virtues of paternity establishment while allowing mothers to do identify any man irrespective of whether he’s the dad or not. What we mean by “paternity establishment” is actually simply providing a name, any name, and, if the man so identified is stupid enough to ignore his summons to court, then we call him the dad.

Of course, if he manages to overturn the judgment, as Taron James did, he finds he’s still out the money paid even though reimbursing him would be done, not by the mother, but by the county treasury.

How else to say it? Public policy on paternity fraud and paternity establishment makes no sense. And the fix is simplicity itself. For the first time in human history, we have the technology to know for certain the paternity of every child. We should use it.

Tomorrow I’ll write about what Germany is doing about this very issue.

 

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National Parents Organization is a Shared Parenting Organization

National Parents Organization is a non-profit that educates the public, families, educators, and legislators about the importance of shared parenting and how it can reduce conflict in children, parents, and extended families. Along with Shared Parenting we advocate for fair Child Support and Alimony Legislation. Want to get involved?  Here’s how:

Together, we can drive home the family, child development, social and national benefits of shared parenting, and fair child support and alimony. Thank you for your activism.

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