Paternity Fraud

First of all what is paternity fraud?  Actually, it's a pretty meaningless legal term.  It just refers to a situation where a father is tricked or "defrauded" into fathering a child that is not biologically his.  Usually the fraud is perpetrated by the mother who knows or has reason to know that a man is not her child's father but "pins" paternity on him anyway- for a variety of reasons.

There is really no hard and fast definition for paternity fraud, since again it is just a phrase that has only become popular in the last 20 years or so. 

This is an interesting topic because with all of the day time talk shows such as the Maury show that almost exclusively deals with a "YOU ARE NOT THE FATHER" theme, I think it deserves some discussion.

I will admit I have watched the Maury show more than once in the past and really felt bad for some men who have fathered a child for months or even years, only find out through a DNA test that they are not the biological father of their child.  Before I became a lawyer I would wonder, what happens next?  Of course, like any good tv show we don't know what happens next and can only guess. 

• Maybe he stops being a part of the child's life?
• Maybe he doesn't care and still continues to care for the child?
• What about child support?
• Was there a child support order in place?
•  Does child support continuet even though a DNA test has disproven paternity? 
• What if no child support order is in place, can the mother still get a child support order with a negative DNA test?
• What if the couple is married?
• What if they're not?
• What if the father signed the birth certificate?
• What if the father signed a Voluntary Acknowledgment of Paternity at the hospital? What if he didn't?

Well after I became a lawyer I realized that there is no easy answer to any of these questions and like most areas of the law. the answer depends on the specific set of circumstances in the case.  Oh and most importantly the law varies greatly from state to state.

What I will say is that with the advances in DNA testing in recent years, I almost feel that mandatory DNA testing at the hospitals (especially for unmarried couples) is probably a good idea.  I say "probably" because of course it's a giant intrusion on people's privacy which I'm generally against.  But I think that the pros probably outweigh the cons. 

The issue is complex to say the least, but let me say that the anti-paternity fraud issue has really become a movement, especially among men's right attorneys  who specialize in divorce and custody cases.  If you simply google "paternity fraud" you will find several websites with catchy slogans such as: "If the genes don't fit, you must acquit".  I think we all know where that came from!

These sites devote themselves to bringing awareness to "paternity fraud" and even want it to become  a crime of its own (aside from just fraud for example).  Here in IL a few bills have even been introduced asking that paternity fraud become a crime. 

CRIM CD-PATERNITY FRAUD

Amends the Criminal Code of 1961. Creates the offense of paternity fraud. Provides that a person commits the offense by knowingly alleging that a person is the biological father of a child when that person knows that the allegation is false. Provides that the penalty is a Class A misdemeanor.

House Committee Amendment No. 1

Provides that the offense of paternity fraud may only be committed if the defendant knows that the allegation that a person is the biological father of a child is both false and may result in the person alleged to be the biological father of the child being erroneously adjudicated as the father of the child.

PARENTAGE ACT-PATERNITY FRAUD

Synopsis As Introduced

Amends the Illinois Parentage Act of 1984. Requires the court to vacate a child support order entered under the Act if the court finds, by clear and convincing evidence, that the moving party is not the biological father of the child who is the subject of the support order and that the obligee maliciously misrepresented the paternity of the child to the obligor. Requires the obligor to file the motion to vacate the support order within 2 years after the discovery of evidence that he is not the biological father of the child. Permits the obligor to bring an action against the obligee or the true biological father of the child to obtain restitution for child support previously paid pursuant to the order, if the court vacates the support order. Provides that any judgment obtained in an action for restitution may not be enforced against the mother until after the child for whom the vacated support order was entered is 18 years old or is otherwise emancipated. Provides that any wage deduction or garnishment action taken to enforce a judgment for restitution against the true biological father shall stand behind any withholding order entered against the true biological father for the support of the child for whom the vacated support order had been entered. Provides that if the support order is vacated, the court shall also vacate the judgment or adjudication of paternity under which the support order was entered.

The reality of the situation is that many times an unwed couple will go to a hospital to have a baby and the man who believes he is the biological father signs what is called a Voluntary Acknowledgment of Paternity.  Here is the one for Illinois.  Now before I go on, it's important to realize that these paternity issues only arise in cases where the couple is unmarried.  If the man is married to the woman any children born during the marriage are presumed to be his children.  Rebutting paternity in those cases is a whole other matter.  So the VAP looks like this:

It's a simple enough document, short and to the point.  The problem is many men don't read it before signing it.  They are caught up in the moment of the birth of their beautiful child and don't realize the legal implications of signing the document.  Not to mention it is hospital policy to give this form to unmarried couples and it's just one more thing for the father to sign at the hospital. 

Now the document is not necessarily a bad thing since it establishes paternity and gives the father a right to establish custody and visitation rights in court later.  But really, the most important thing it does is establish paternity presumptively and legally- on the spot, with no DNA test of any kind.  In fact the document states that the father shall WAIVE his rights to genetic testing and that he agrees to be financially responsible for the child until the child is at least 18 years old and agrees to pay child support.  Now don't worry the document can be rescinded within 60 days but the problem is what if you wait longer than this to get a DNA test?  What if you wait a year? Or two years?  Most likely, it will be too late and even if a man who signed the document laters turns out to NOT be father of the child, he will still have to pay child support because this is in the best interest of the child and he shouldn't have waited so long to get tested, says case law at least.

So, the moral of the story is, that an unmarried man should really think twice about signing this VAP at the hospital unless he is 100% certain that the child is biologically his.  In fact, if there is any doubt at all, a simple DNA test done in the hospital could save everyone involved a lot of hardship and pain.


*there is much more to this issue that is not discussed here and if you think you want to dispute paternity or need help establishing paternity seek the help of an experienced family law attorney immediately, the clock is ticking!