Thursday, July 7, 2011

Guest Post - LAW & ORDER SERIES Part 1: Disestablishing Paternity - The Case of the Vanishing Equitable Remedy

Today's Guest Post comes from our friend Old Guru.  Show him some love with conversation and questions in the comment section.


Imagine this.  A couple meets and begins dating.  We’ll call them Jane and Dick.  After a year of dating, Jane and Dick learn that they are expecting.  When the baby is born, Dick and Jane sign an Acknowledgement of Paternity, which is a contract hospitals provide to establish the legal parents of a baby. They raise their baby together for a few months but break up after only six months. The baby remains with Jane but Dick maintains an active role in his child’s life.

Ok, so fast forward 13 years and Dick has been paying support the entire time.  One day while Dick is picking up the child, Jane asks Dick to be her boyfriend again and Dick says no.  Not to be denied, Jane screams that the baby is not Dick’s anyway and that Steve is the real father.  Dick then buys a DNA kit from CVS and swabs the child, which proves that he is not the biological father.  Dick immediately files a motion with the D.C. Family Court to disestablish paternity of the child, which means he wants to be removed as the legal father.
So, we get to the question: Will Dick have to pay child support for the thirteen-year old even though he has proof that the child is not his?

Well, according to a recent D.C. Court of Appeals case, M.M. v. T-M.M., the answer is yes.  (The case uses initials to refer to the parties and it is very confusing, so let’s rename the case to Eve v. Adam.)  In Eve v. Adam, a couple had a baby and signed an Acknowledgement of Paternity.  Now Eve  told Adam that there were two other potential dads.  Eventually, they broke up.  For eleven years though, Adam believed he was the father of Eve’s child.  Eventually, Eve passed away and her parents received custody and child support from Adam.  All was well until a year later when Adam fell behind in child support payments.  He then requested a paternity test, which of course, revealed he was not the biological father.  Logically, Adam. requested the court to disestablish paternity and end the child support payments.  

Now, in D.C. you can undo an Acknowledgment of Paternity if you 1) withdraw the AOP within 60 days; or 2) file a motion claiming fraud within a year.  Because Adam had not done either,  the court ruled that he would remain the child’s legal father and would continue to pay child support even though he had proof that he was not the biological father.  It reasoned that Adam waited too long to challenge paternity when he knew he might not be the father.  For good measure, the court reminded Adam that he had played a major role in the child’s life and was the only one who paid support.  

Ok.  So what’s the problem?  Adam waited too long to challenge paternity when Eve told him there were other potential fathers - no harm no foul right? Well, let’s examine how this case makes Dick’s case problematic. 

In court, Dick will argue that he only signed the AOP based on the fraud perpetrated by Jane; that he was the child’s father.  However, based on Eve v. Adam, the Court will remind Dick that he had 60 days to withdraw the AOP and one year to file a motion claiming fraud.

Wait a minute!  Why doesn’t Dick simply argue that since he did not know the child wasn’t his, he had no reason to withdraw the AOP or file a motion claiming fraud.  Additionally, the father in the Eve case knew that there was a possibility that he wasn’t the father.  Surely, this argument gets Dick off the hook, right?  Uhhhh nope.  Here’s why:

D.C. Family Courts, like most family courts around the nation, follow a “best interests of the child” standard when deciding cases involving children.  Custody, child support and adoption cases are a just a few examples.  This standard, which gives judges tremendous discretion when determining an equitable remedy, often lopsidedly disregards the interests of at least one parent.  

In addition, D.C. courts hate to take stable providers out of a child’s life and will resist at every turn, even if that provider is not the biological parent.  What this means is, even in a situation where a father proves that he is not the father of a child, if the court finds that it is in the best interests of the child to keep the status quo, then guess what?  You guessed it - that man remains the legal father of the child and continues to pay child support until the child turns eighteen. The biological father will not have to pay a dime.  

So, as for our friend Dick, looks like he will be paying for Steve’s kid for another five years.  When the court considers the fact that Dick took an active role in the child’s life and that he has paid child support for thirteen years, it will most certainly use the best interest of the child standard to shoot down any argument he makes.  Trust me, I get that courts aren’t fair but are equitable.  But is this remedy even equitable?

See, I understand why judges are reluctant to disestablish paternity.  Nothing boils my blood more than hearing a man argue that a child is not his after 12 or 13 years just to torture the mother.  And of course I recognize the reality that children need a stable father figure in their lives even if it isn’t their biological father.  My question is: how is it equitable to force a parent to pay for a child that is not his and let the actual father walk?  What would prevent the legal father from withdrawing from the child emotionally and physically, even if he continues to pay?  Isn’t that against the best interests of the child?  Maybe the court could allow the legal father custody but force the biological father to pay support.  Maybe both men could split the support.  In any case, this issue reminds us that our court system is far from perfect.

1.      What do you think about a father who provides proof that he is not the father of the child and he learns that fact several years after the child is born?

2.      Should the Court force the biological father to be part of the child’s life?

3.       Do you think to do so is in the child’s best interests?  
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