Wednesday, May 17, 2006


She's arguing that children need a father, so the state should force whoever the mother picked to be THE father. But wouldn't it be in the best interest of the child for him to have a rich daddy?

One of the things about criminal and civil law that is interesting is how they are perceived to be fixed and absolute, but are actually in flux based on the society around them. For centuries, there have been laws that punish men for abandoning or abusing their families to various degrees, and in the United States, paternity law has changed slowly over the years as the technology and culture changes. Overlawyered has a story about what is happening to the rights and legal responsibilities of men when newer technology points out one of the children of the mother is not his:

National Law Journal takes a look at one of the hot issues in family law: whether a man can terminate child support payments if DNA testing reveals that he is not in fact the father of the child he has been supporting. Or should he perhaps be given some legal remedy against the mother other than the right to suspend support? (Tresa Baldas, "Parent Trap? Litigation Explodes Over Paternity Fraud", Apr. 10).

Paternity fraud is rampant in the United States, triggering legislation and legal challenges in more than a dozen states, according to family law attorneys and fathers' rights activists.

At issue: Men claim women are getting away with trickery -- DNA evidence may show a man is not the father, but the courts are still forcing him to pay child support anyway.

"This is the new underdog," said Michigan family law attorney Michele Kelly, who represents mostly men tangled in paternity disputes. "I was a staunch feminist. I marched with Gloria Steinem. But the new victims in America are working men. All they are is a mule train."

Most recently, Kelly secured a victory for a Michigan man who had paid an estimated $80,000 in child support over 15 years to his ex-wife, despite DNA evidence that proved he wasn't the father of their first son. On March 23, after a bitter court battle, the case settled with the ex-wife agreeing to have all child support canceled. Richardson v. Luria, No. 91-7019-DM (Bay Co., Mich., Cir. Ct.).

Men are, all too often, an easy target. According to divorce attorneys, there are two types of divorce judges: ones that favor men and ones that favor women, and the ones that favor women are more common. For men, the mere accusation of rape, abuse, or other crimes is sufficient to demolish their reputation, relationships, and career. Now law is taking a new look at the legal rights and responsibilities of men toward children their wife or girlfriend had with another man.

What is more disturbing, however, is the attitude toward commitments, relationships, and honor that the article notes has changed:

"Clearly today, more than ever before, paternity is raised more frequently," said family law expert John P. Paone Jr. of Paone & Zaleski in Woodbridge, N.J., who believes old paternity laws don't work in today's world.

"The reality is that now there are women, as well as men, who are engaging in extramarital relations. Welcome to Desperate Housewives. Here we are," he said.

Paone, former chairman of the Family Law Section for the New Jersey State Bar Association, believes that new legislation is needed to reflect the change in societal mores.

"This presumption that a child born during the marriage is the biological child of the mother and father may no longer be appropriate," Paone said. "These things all worked very well in a 1950s lifestyle, but today that may be the exception to the rule," Paone said.

Commenters at Overlawyered took a look at this issue:

This is all simply the logical result of what an increasingly permissive culture has created. The problem is that some who have helped to make the bed do not want to sleep in it.
-by Wavemaker

The reliance on 500 year old English Common Law about Child from Marriage being legal issue worked when society enforced adultry and had no DNA testing. In today's society with accepted promiscuous behavior and no fault divorce, this is a weak straw. I'd hate to be a child who learns that Dad isn't Dad but also I'd rather not be named Dad as a convenient target.
-by SteveS

I love this quote:

"I think the problem with those laws is that, No. 1, they need to consider a child's best interest. I'm not trying to minimize the trauma to the nonbiological father, his feeling of betrayal," Jacobs said.

Let's take her argument to its logical conclusion. She's arguing that children need a father, so the state should force whoever the mother picked to be THE father. But wouldn't it be in the best interest of the child for him to have a rich daddy? Or a doctor for a dad? Or an astronaut for a dad?! What kid wouldn't want an astronaut for a dad?! If the law can arbitrarily decide that some non-father is the father, why not look out for the child's best interest and pick the best dad possible?!

And if one rich dad is a good thing, of course it'd follow that having multiple dads would be even better. I'd think that 30 rich dads, so they could rotate throughout the month, to take care of the kid.

And if multiple forced dads benefits the kid, it certainly follows that multiple mothers would be better too. Thus, the state should also randomly force 29 wealthy women to be mothers to the child.

And why only do this when there is a dispute as to custody? Wouldn't it be in the best interest of all children to have multiple rich fathers and mothers?!

Following the "best interest" argument even further, maybe the state should take all kids away from their parents until the set of 60 "best" parents can be established.

OK, back to reality. I agree that it's in the best interest of the child to have the real father pay his share. But to force some random guy pay is ludicrous.
-by ImaFish

RR-- allow me to clarify (my very early morning posts tend to be elliptical). I did not mean to imply that the male victims of paternity fraud have to sleep in the bed (isn't the metaphor almost too much?). The people to whom I refer as bed-makers are those who supported the fostering of a permissive culture in which adultery and unplanned (or unwanted) children are a by-product; and yet they refuse to recognize the right of an innocent victim to be absolved of responsibility for a problem not of his making.

That said, there is (I think) something to say for the laches argument -- that is, if you're not the father, you really shouldn't sleep on (enough!) your rights and render the child another victim.
-by Wavemaker

There is certainly a strong case for fathers that have been raising children to still be considered the father - call it an adoption, if you will. A small statute of limitations on parental challenges is thus a reasonable position (not necessarily the right one, but reasonable and arguable).

What is NOT reasonable is some states declaring fatherhood by default (when the so-called "father" never even met the woman or heard about the hearing at all!), then making THAT binding, despite proof that the man is not the father. THAT is complete and utter crap.
-by Deoxy

Courts defend this outrageous paternity fraud by hypocritically claiming that every child has a constitutional "right" to a father.

Yet, hypocritically, they often refuse to respect this "right" by protecting the father-child relationship from infringement by mothers who interfere with visitation.

And single-parent adoption by the mother is permitted in all fifty states.

And under the Supreme Court's settled "state action" doctrine, constitutional rights apply only against the government, not private individuals (like a father).
-by Hans Bader

In most states paternity cannot be repudiated. If it can, it's often possible only before an absurdly short period of time has elapsed, like 30 days. In some states he need not be notified. In CA he must be notified, but a notification is considered proper even if the address given by the mother is incorrect or fraudulent. Imagine the following: a woman names Bill Gates as the father of her child. The controlling law is that of the birth state, not Washington state. After a year, *bam* hit him up for a 10 million per year child support award. The award, remember, is based on ability to pay not need. I'm surprised this hasn't happened yet, if not to Gates then to some other well known wealthy man.
-by Bob Smith

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1 comment:

Richard said...

As a step-father of a college-bound daughter, I recently discovered that MY income is the determining factor in the "required family contribution" calculation to determine financial aid eligibility, not her deadbeat-dad's. This child is not adopted, has never wished to be (I did offer), and is all ga-ga over Daddy (a disneyland-dad with no rules and six left behind non-supported children in two failed marriages).

Do I resent paying for her college? No.

Do I resent that because I married her mother that I am required to? No.

However, I do think that it should be a feminist issue because it potentially discourages marriage to a woman with children by someone that can be financially supportive.

I was a single father and raised my son from 12 to grown and on his own with no assistance from his mother, so I know how hard it can be, but the women who raised me, Grandmother (37 years as the postmistress of her home town) and my Mother (a car dealer, not saleswoman, DEALER in 1957) would give short shrift to the idea that a man is needed to support a mother. And they would be horrified at a court deciding to reward paternity fraud.