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January 28, 2007


George Alen wrote: "But can the mother be held culpable for fraud if in fact she was uncertain herself (if blood types did not determine paternity)?"

I suspect the answer is no. But remember, "paternity fraud" is just the popular name for these laws. The statutes, at least in Ohio, are not based on fraud, but on relief from a judgment. Fraud need not be shown, and no one is culpable. Fraud can be a ground for relief from a judgment, but it is not the only ground (e.g. undiscoverable evidence/knowledge, etc.). And the late paternity challenge is a special proceeding, exempting it from the court rule regarding relief from a judgment (civ. rule 60(B)). Thus, regarding evidence and grounds, the statute governs, not the court rule--at least in Ohio that is the case.

According to the "Duped Dads..." article the mother has a child and knows it is not her husband's child, which makes it paternity fraud. The husband initially presumed his paternity but later believed this to be incorrect. Upon suspicions the child was not his, the husband divorced the wife and got a DNA test or vice versa.

But in order to show fraud the mother must already have some type of knowledge or conclusive evidence, validating the husband was not the father, whereas demonstrating fraud actually took place. Let's assume the mother has said knowledge, which clearly illustrates fraud. Possibily the knowledge is based on blood types. But can the mother be held culpable for fraud if in fact she was uncertain herself (if blood types did not determine paternity)?

Let us speculate a bit further. What if the mother and biological father conducted DNA testing (proving the husband is not the father)? Then there is strong evidence indicating fraud. If the biological father petitions the courts in a timely manner, then fraud falls squarely on the mother.

This takes us to the comments of previous posters. Once the mother knows the husband is not the father, i.e. from DNA results, the child is considered an "out of wedlock" child. Even though the child was born during wedlock the child was conceived with another man making the child "out of wedlock". Subsequently making the biological father the putative father.

But if the husband contends under the "presumption of paternity" the child can not be considered "out of wedlock," then who is the putative father? If it is after the husband is made aware that another man is clearly the father (based on DNA testing conducting by the mother and biological father), then the biological father is indeed the putative father. This is even more convincing if the blood typing excludes the husband. Therefore, if the husband contends he is the putative father when DNA says he is not the father, then the husband is committing paternity fraud.

It seems paternity fraud can yeild its ugly head in many different ways. In its most basic form fraud is deceit.

Defining the best interest of a child should be our main focus when considering the birth of an illegitimate child. And this is exactly what our justices are required to do when evaluating the best interest. One problem is the best interest persistantly changes from case to case. Time is usually the main culprit behind such changes. Regardless, justices are faced with the difficult task of considering every relevant factor.

And determining a childs best interest includes many important variables. How old is the child? Does the child have sibilings? Is the husband aware of the infidelity? How long has the husband been led to believe he is the bio-dad? Is the bio-dad part of the picture? Does the bio-dad want to be the father? And on and on the questions can be asked.

But what if the secret is discovered or revealed quickly, i.e. within the first year? A scenario in which the courts are dealing with an infant (cases of this nature should seem much simpler?). For even the brightest attorney would be hard pressed to argue that it's not in the infants best interest to establish a loving relationship with the bio-dad when such dad desires a relationship. In addition, it's presumed the mother will seek support from the bio-dad once the husband begins divorce proceedings. But even infant cases include twists.

It seems discovering the truth early should eliminate many difficulties, but what if there are siblings and/or the husband wants to stay? What if the husband wants to remain married knowing DNA reveals he's not the father? Many husbands desire to maintain a facade to save face? What if a pychological bond has been formed or the husband wants to exact revenge? Whatever the case, should the truth be hidden from the child if the bio-dad wants to be the child's father? Most rational human beings say no! It's hypocrisy of the highest magnitude when society says a bio-dad has no rights, for society continually desires/forces fathers to be accountable.

Our scenario has all the ingridients of a Lifetime movie. It includes an untruthful mother/wife, an illegitimate infant, siblings (presumably near the age of the infant), a husband, and a bio-dad. What do you do if you're a justice determining the best interest of a child whom everyone wants? Hopefully her job, i.e. the justice, is made easier by adults who are sophisticated enough to act like adults. This means adults who desire to do what is best for the child. Unfortunately, this rarely happens.

The research of child psychologists and other child experts maintain it is repeatedly shown a healthy relationship with the natural father is in the childs best interest. These and other studies continue to support the importance of the genetic connection between father and child (even more important when the child is a boy). Family counsellors report that it is in everyone's benefit to reveal the truth early. Waiting until the children reach pre-adolescence or adolescence can cause irreparable damage, for both the illegitimate child and sibilings. At this point physical disimmilarities become profound and questioned by siblings. How does the mother deal with the deception then? One doesn't even need to imagine the emotional scars and trauma this causes. And what happens if the husband decides to pursue a divorce because the physical changes continually remind him of the infidelity?

The answer is seen repeatedly among successful nuclear families. Everyone swallows their pride. This is done because the childs best interest is at stake. The child should make abandoning pride easy.

Family law is tough because the choices hard, the emotions high, and the consequences grave for all concerned.

First, the mother presumably knows or would have reason to suspect the paternity of the child is not conclusive just because of the presumption of conception during wedlock.

Second, allowing that presumption to continue to thrust obligations and responsibilities on the non-biological dad also allows for the creation of an emotional attachment that goes both ways with the child and the non-biological father.

Third, the Kentucky decisions thus far have their blinders on by simply analyzing it as the dealings with mom and non-biological dad such that the presumption exists until rebutted, and if there is a paternity action by the mom against the non-biological dad or during the divorce then the resultant decree constitutes res judicata on these two people as to the parentage. And, it is not uncommon for the non-biological dad to acquiesce or not challenge the determination. A creation of legal rights and responsibilities upon which the child has no input.

Fourth, this happy little deception then can go assunder when the truth is outed and the non-biological father has been the victim of a fraud, and the biological dad has been the victim of a deceptive silence.

Now, legally speaking the focus has always been on the relationship between the mom and non-bio dad as to support and custody issues as they relate to the three. Since the paternity action or divorce action may constitute a determination of the custody and support issues relative to mom and non-bio dad, it is not necessarily a legal 'termination' of the biological dad's status as the bio-dad as may be the case in an adoption. Since bio-dad was never aware of his child, it can't be said he is estopped or has otherwise waived his parental status over that child, and thus any actions by mom (either one-sided or collusively with the non-bio dad) are not binding on bio-dad (eg., a wrongful death action?).

This outing of the real paternity is a devastating situation for all concerned, but as Todd Bolus suggests should a DNA test be de rigeur in all legal actions which possess legal determinations of paternity (eg., divorce, custody, paternity, etc actions)? The upside is a medically conclusive determination greater than the law's presumption of paternity. The downside is the outing of an issue which can affect multiple families, parents, step-siblings, etc.

However, the facts are what they are with few divorces having no emotional trauma for those concerned.

Although Kentucky's courts have recognized that these divorce and paternity proceedings have more legal baggage than what we usually encounter, they have not ventured into that area yet. For example, non-bio dad and mom may allow the fiction to function, but sooner or later the child has rights and is entitled to know his or her 'real' father. Furthermore, any decision by the putative parents to 'off' the bio-dad should not be binding on the bio dad. What if the child dies and there is a wrongful death action? There can only be one father, and which one is it? And what if the child has step-siblings through the bio-dad? A tangled web we weave once we start to deceive.

And by "off", I do not mean a fatality but simply removing him legally, emotionally, geographically, and knowingly.

Hard facts make hard decisions, but they do not get any less hard as time goes by, they simply get ignored.

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