Unmarried Parents and Paternity Rescission

Recently news outlets are headlining more instances of men owing child support and child support arrears for children that they did not biologically father.  These situations are not unusual but due to social media, there seems to be more attention focused on this seemingly unjust action against these alleged fathers.  There are several reasons that the court may deny a man a child support order termination when he is not the biological father.  One reason is that the man may have signed a Voluntary Acknowledgment of Paternity (AOP). According to the National Conference of State Legislatures or the NCSL, states must establish a voluntary paternity establishment program.

If a man chooses to voluntarily sign a paternity acknowledgment, there are time limits in most states which dictate when an acknowledgment can be rescinded.  Paula Roberts, of the Center for Law and Social Policy (CLASP), writes that an opportunity to rescind must be offered during an initial 60-day period.  Either the man or the mother can rescind the acknowledgment within the 60-day time limit in most cases.  This can be executed without problem unless an administrative or judicial proceeding involving the parent and child is brought at an earlier time, (Roberts). A request made in court can only be requested if certain situations occurred which forced the man to sign the document voluntarily.

According to Roberts, the reasons include fraud, duress, and material mistake in fact.  Unfortunately, the judges and the court systems do not follow the laws as they were written in cases of rescinding paternity.  For example, a Nebraska man was granted a petition to terminate a child support order and to set aside paternity due to DNA testing.  This was allowed despite the fact that an AOP was signed five months after the delivery of the baby. The state did not seem to appreciate the court referee’s decision and appealed.

Lori Pilger of the Lincoln Journal Star (2014) reported that a Nebraska Supreme Court majority said the distinct court had gone too far on its own initiatives.  This meant that the court should not have pursued any decision based on paternity.  The officials should have only decided what was in front of them which, in this case was a child support modification request.  The court, according to Pilger, turned a motion to modify child support into an action challenging paternity and set aside the finding of paternity.

This injustice has caused the man to try and fight again in court but history does not offer much in the way of optimism.  This man should plan for a prolonged and unfair fight ahead of him, especially since the court did not consider the fact that the ‘child’ was 19 at the time of this ruling. Some states will allow an administrative rescission of paternity while others require the judicial process be followed when requesting a termination of parental and financial responsibility for a child. In an administrative rescission, the mother and the alleged father who wish to rescind must notify the birth records agency, (Roberts).

During this process, a notary must verify all pertinent information which must be entered into a specific form or by written request.  The administrative process is more informal than the judicial process. Roberts writes that a party desiring to rescind an acknowledgment must go to court.  Going to court does not guarantee that the acknowledgment will be rescinded.

It also does not mean that child support debt will be forgiven.  It is nearly as difficult to end parental responsibility as it is to have child support debt waived, In Houston, TX, there was an instance of the system helping non-biological parents while hurting them at the same time when a man found out that he did not father a child in 1983.  The KHOU Staff (2012) wrote that a new state law said that men no longer had to make child support payments if they can prove the child is not theirs.  This law may satisfy men that have made payments on time and that do not have child support arrears owed on their cases.

But is does nothing for men that are already indebted to the government thanks to the Bradley Amendment of 1986.  According to Douglas Reid Weimer, a Legislative Attorney for the American Law Division, the Bradley Amendment prohibits the retroactive modification of child support arrears. The law has once again proven itself unfair because even though the man should not be paying child support, the accumulated debt still must be repaid. For this Houston resident, that meant that more than $50,000 in child support debt (some of which is interest) must be paid for a child (now at least 28 years old) that he did not father.

There are some stories, not many but a couple, where men have beat the 60 month deadline and were not obligated to pay support.  An Oklahoma man almost missed the deadline when he requested a DNA for two children even though he signed an AOP.  According to Ed Doney of KFOR (2013), after the 60-day deadline a man would have to prove that he was deceived into thinking he was the biological dad.  It is not easy to prove fraud, and even if proven, the Bradley Amendment prevents relief from any child support debt.  Again, a man must prove that he was a victim of fraud, duress, or material mistake of fact, (Doney, 2013).

There is no consideration of the fraud, duress, and material mistake in fact that can accompany the feelings of disappointment and helplessness when a man realizes that a child is not his own.  This criterion only applies to stopping an ongoing collection for child support payments. There are no apologies, no feelings concerning the ‘best interest of the man’, or a guaranteed system to return any money already paid in child support. The state often tells victims of paternity fraud that they can sue the recipient of the child support payments if they want any financial recovery.

This is often expensive and unrealistic so many men opt out of pursuing any repayment at all.  If any money is repaid, the intangible costs such as the harassment suffered and being subject to derogatory stereotypes still remain. There can be no repayment for the time spent in the courthouse or lengths of time spent in prison cells. In most cases, it is too late to repair the damage caused by wrongful paternity claims.  The government must find a way to correct this inequality as quickly as possible. Once day is too long for a man to suffer from paternity fraud.

References:

Doney, E. (n.d.). DHS deadline requires child support from men who aren’t biological dads | KFOR.com. Retrieved from http://kfor.com/2013/06/10/dhs-deadline-requires-child-support-from-men-who-arent-biological-dads/

KHOU Staff. (2011, June 23). Houston man forced to pay child support for child that DNA proves isn’t his. Retrieved from http://www.khou.com/story/news/2014/07/17/11498310/

National Conference of State Legislatures. (n.d.). Child Support 101.2: Establishing Paternity. Retrieved November 11, 2014, from http://www.ncsl.org/research/human-services/enforcement-establishing-paternity.aspx

Pilger, L. (2014, May 16). Man who isn’t biological dad responsible for child support, court finds : Journal Star Breaking News. Retrieved from http://journalstar.com/news/local/911/man-who-isn-t-biological-dad-responsible-for-child-support/article_6c861757-7d2a-5557-b022-cd0a1ce34970.html

Roberts, P. (n.d.). Truth and Consequenses: Part I. Retrieved from http://www.clasp.org/resources-and-publications/publication-1/0111.pdf

Weimer, D. R. (n.d.). THE BRADLEY AMENDMENT: PROHIBITION AGAINST RETROACTIVE MODIFICATION OF CHILD SUPPORT ARREARAGES. Retrieved from http://congressionalresearch.com/RS20642/document.php?study=THE+BRADLEY+AMENDMENT+PROHIBITION+AGAINST+RETROACTIVE+MODIFICATION+OF+CHILD+SUPPORT+ARREARAGES