Pressure mounts for paternity fraud laws

By Robert E. Pierre
Washington Post

In Hawai'i and most states, children born during a marriage are the legal responsibility of the husband — regardless of who actually fathered them. Advertiser library photo • Feb. 2001

"I don't think it's fair for me to have to take care of somebody else's children when she went out and slept with another man," said Mack, 55, pastor of the Spiritual Israel Church & Its Army Temple No. 8 in Detroit. "I still love the children because it's not their fault. But think about how you would feel."

In Michigan, as in Hawai'i and most other states, the children born during a marriage are the legal responsibility of the husband.

For single men, once paternity is acknowledged or established through the courts, it is next to impossible to change. But prosecutors and many children's advocates contend that is the way it ought to be, to keep from unduly traumatizing innocent children by snatching away their emotional and financial support.

Across the country, including in the Michigan Legislature, a push is under way to institute "paternity fraud" laws. The new legislation would cancel mandated child support payments — and arrearages — for men who can prove through DNA testing that they are supporting children who are not their flesh and blood. In some cases, the laws would provide criminal penalties for women who willingly lie about the father of their children.

In Hawai'i, a married man is considered the legal father of his wife's children unless a court determines otherwise. Here in the Islands, however, there's no chance an unmarried man will be assumed to be the father without his consent. He must sign a child's birth certificate to establish paternity, unless the mother involves the courts to prove paternity.

Advocates of the new Mainland laws contend change is needed to prevent the exploitation of men by women. Some are pushing for mandatory testing in all unmarried births, and before any child support order is established. They point to studies by groups such as the American Association of Blood Banks, which found in 1999 that nearly 30 percent of 280,000 paternity cases evaluated excluded the alleged father as the biological parent.

"There is an epidemic sweeping this nation," said Carnell Smith, founder and executive director of U.S. Citizens Against Paternity Fraud, who claims he, too, is a paternity fraud victim and now travels the country seeking legislative reform. "It causes havoc, emotional harm and social harm. Many states have chosen to look the other way and pretend the problem does not exist."

At least 30 states besides Hawai'i have laws presuming a child born to a married couple is the man's. He can challenge that presumption in court, but most states have a statute of limitations.

In Hawai'i, the man has a year after a divorce to raise the issue of paternity, but Rosemary McShane, a lawyer in the city corporation counsel's Family Support Division, said she has seen that extended by judges in Hawai'i.

"At some point, there is a societal need for the paternity of a child to be established with some degree of certainty," said Christi Goodman, program manager of the children and families program for the National Conference of State Legislatures.

The Michigan Federation for Children and Families has argued that the proposed legislation would make adoptions more difficult because it adds an additional layer of uncertainty if paternity cannot be established with some finality.

Child support officials worry it would upend efforts to collect legitimate child support. And the State Bar of Michigan said the state would do more harm than good by passing the bill.

But to the fathers, it's an issue of justice.

McShane notes there are movements for either side, but doesn't support a change in Hawai'i's paternity statutes.