As much as someone may feel that the current child support system is unfair and unconstitutional towards unmarried parents, people that are married during the birth of a child face different discriminatory laws. According to Paula Roberts of the Center for Law and Social Policy, there is a long-standing legal presumption that a child born in the context of marriage is the child of the couple. This may have been acceptable during the inception of the child support system decades ago, but with the advancement in genetic testing, a man should not be forced to provide for a child that he did not father. Married men can become victims of paternity fraud just as easily as men that have not tied the knot. Heather Draper (2007) defined paternity fraud or misattributed paternity, as a term that suggests that the mother knew about the true paternity and deceived the man for financial gain. Usually when a form of fraud can be proven, the victim can be relieved of any burdens inflicted due to the fraud. This is, unfortunately, not true with many paternity fraud cases. This is especially true in cases when the couple are married. Even though DNA (deoxyribonucleic acid) testing is available to identify biological fathers, men are still being forced to provide for children that do not share their blood type.
One example was reported in an article by Huff Post Divorce in 2013 which showcased an ex-husband and alleged father that was being billed for child support arrears for another man’s child. Joseph Chmelar received a letter stating that he owed $8,500 in back child support, (Huff Post Divorce, 2013). This after another man had been named as the father. Most would deduce that the biological father would become responsible for all financial obligations related to his children, but that is not what happened in this situation. Because of a Michigan law drafted in 1956, the biological father would not be held responsible. Betty Wang of FindLaw (2013) wrote that the Paternity Act says that for any child born out of wedlock, the biological father has no legal rights. This prehistoric law gives the husband legal rights to the child, but also mandates that he be burdened with all financial liability of that child. Unfortunately, Michigan is not the only state that forces these outdated and unfair laws onto male citizens when the mandates are linked to child support. Married men, just like single men, can be victims of the child support hustle while suffering from paternity fraud.
Several other states financially punish men after divorce when he has been proven not to father children post-marriage. In Kansas, a couple married and divorced after which the ex-husband requested a DNA test when the mother told him that he did not father a child. Kansas, followed the typical presumptive mandate and named him the legal father of the child. The law states that a child born 300 days before, during, or after a marriage automatically belongs to the husband and the judge denied a petition which would have excused the man from any parental responsibility. The Kansas Court of Appeals reversed and overturned the lower courts findings after DNA testing proved that the man did not father the child. According to Roberts, the court held that tests should never have been done until the trial court held a hearing on the best interest of the child. There is rarely any consideration given in regards to the best interest of the man in such court cases. The mothers in these cases should be held responsible for their actions and that includes what is in the best interest of ‘her’ child once DNA testing has exonerated a man from being the father. Any case that has evidence that a man did not father a child should be immediately terminated and any support paid should be refunded, in full, to the victim of paternity fraud. Some would venture into more serious remedies and demand that a mother be jailed for committing paternity fraud. This type of punishment could possibly lead to further damage to the child who is but an innocent victim of the child support hustle.
New Mexico has offered a different remedy for paternity fraud committed while legally married. The ex-husband supported his alleged daughter after the divorce and during her college years. Once the financial obligation ended, the mother decided to sue the biological father for retroactive child support. The case was dismissed on the grounds of collateral estoppel, (Roberts). Unfortunately, too many child support cases are dismissed because the court has decided that another judge has already ruled and therefore cannot be heard again. In this case, the daughter (without the mother) was permitted to sue her biological father. Roberts explains that the trial court established his (the biological father) paternity and ordered retroactive support back to the date of birth. Even though the ex-husband had already provided for the child up to and beyond childhood the court decided, arguably unfairly, that the adult child was entitled to even more money.
The biological father, and not the mother, was ordered to repay the ex-husband but none of the parties involved could reimburse this man for the intangible hardships that the mandate of automatic fatherhood when married may have caused over the years. The court felt no responsibility in repaying the man even though the system definitely collected some monies from him over the years. The husband was collaterally estopped from pursuing reimbursement, (Roberts). Since the financial burden of payment to both the daughter and the ex-husband fell on the shoulders of the biological father, unless he is extremely wealthy, the chances of both being paid in full is slim to none. To further the imbalanced ruling by the judge, the father was probably subjected to all penalties, interest and court costs usually charged in child support cases involving minors.
The last example shows that the government has several opportunities to collect money and enforce child support illegalities, not once but twice. These penalties can be imposed on not one, but two different men for one child. The law makers attempt to justify these unconstitutionalities as actions based on what is best for the children in these already difficult situations. It is obvious that regardless of relationship status of the adults involved, the government will always find a way to trap people, parent or not, into the grasp of the child support system. It is traumatic to children to lose a person believed to be their father. It can be even more tragic for a married man to learn that he did not father a child believed to be his own. The excuse of hiding behind the best interest of the child should be abolished along with the outdated law that makes men parents when they are, in fact, not parents at all. The responsibility of providing for these children should only fall on the shoulders of the mother and biological father. Since the government has refused to update the laws that make men proven not to be fathers exempt from any and all financial liability related to the child, this must be a demand made be the people. There is too much money being collected in this and in other areas of the child support system and it will continue until we demand reform. The time is now!
Center for Law and Social Policy., & Roberts, P. (n.d.). Truth and Circumstances: Part II Questioning the Paternity of Marital Children. Retrieved from http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=3&ved=0CCoQFjAC&url=http%3A%2F%2Fresearch.policyarchive.org%2F14067.pdf&ei=pdJ8VKGMEdjnoASa5YL4Dg&usg=AFQjCNFzcL9EnJ0_Maj-lZYc9JxTHTNshw&sig2=ufGmbzRV6kTRjf6-L9Z-cw&bvm=bv.80642063,d.cGU
Draper, H. (2007). Paternity fraud and compensation for misattributed paternity. Journal of Medical Ethics, 33, 475-480. doi:10.1136/jme.2005.013268
Huff Post Divorce. (2013, July 29). Child Support Law Requires Man To Pay For Another Man's Child. Retrieved from http://www.huffingtonpost.com/2013/07/29/child-support_n_3672474.html
Wang, B. (2013, July 30). Mich. Dad Fights Order to Pay Child Support for Another Man's Kid - Legally Weird. Retrieved from http://blogs.findlaw.com/legally_weird/2013/07/mich-dad-fights-order-to-pay-child-support-for-another-mans-kid.html