Kenya N. Rahmaan
Recently, news outlets are headlining more instances of men owing child support and child support arrears for children they did not biologically father. These situations are not unusual, but there seems to be more attention focused on this seemingly unjust action against these alleged fathers due to social media. 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 sign a paternity acknowledgment, there are time limits in most states that dictate when to file to rescind paternity. 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 cancel the acknowledgment within the 60-day time limit in most cases. This can be executed without problems unless an administrative or judicial proceeding involving the parent and child is brought at an earlier time (Roberts).
A man can request in court, but only if certain situations force the man to sign the document involuntarily. 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 former elected officials wrote them in cases of rescinding paternity. For example, a Nebraska official granted a man the right to terminate a child support order and set aside paternity due to DNA testing. The official approved the petition even though the man had signed an AOP five months after the baby’s delivery. 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. 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 to be followed when requesting 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 support official will rescind the acknowledgment or walk away debt-free. It is nearly as challenging 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 have a child in 1983. The KHOU Staff (2012) wrote that new state law said that men no longer had to make child support payments if they could prove the child was not theirs. This law may satisfy men who have made payments on time and do not have child support arrears owed on their cases. But it does nothing for men who 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. The Bradley Amendment ensures that both biological and non-biological fathers are rarely excused from child support debt. https://youtu.be/dv0KpADLlFY
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 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 of 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.
These scenarios are often expensive and unrealistic, so many men opt out of pursuing any repayment at all. If anyone repays any money, the intangible costs, such as the harassment suffered and being subject to derogatory stereotypes, remain. There can be no repayment for the time spent in the courthouse or the 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 a 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 Consequences: 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
