More and more fathers are challenging paternity fraud in cases across the country. Under the common law, a married man is presumed to be the father of a child born during the marriage. And even if you are not the biological father of the child born of the marriage, the courts in a majority of cases will hold you to be the legal father of that child and require you to pay child support. And this is true even if you present DNA evidence that you are not the father.
So what do you do if you are tricked into paying child support by the mother for a child who is not your own? A Michigan man paid $80,000 in child support over 15 years to his ex-wife, despite DNA evidence that he was not the father. The father sued and, after a long court battle, finally settled with the ex-wife and had his child support canceled.
Some state legislatures are looking at the problem of paternity fraud and enacting laws to give some relief. Colorado passed a new law allowing men to challenge paternity during a divorce, separation or child support action. Florida is considering a law that would terminate support if a man proves he is not the father. And Michigan is looking at a bill to require the courts to end support in such a case. Other states have also made similar changes to their paternity laws to allow men to challenge paternity, including Alabama, Maryland, Georgia and Ohio.
There is a model law, which has been adopted in Delaware, North Dakota, Texas, Utah, Washington and Wyoming, which permits genetic testing within the first two years of a child’s life. If the test shows the father is not the biological parent, then he has the right to disestablish paternity. The idea is that this is better for the child than letting anybody sue anytime.
Of course the court is trying to look out for the child and certainly terminating child support is not in the best interests of the child, especially when the real father cannot be found. There is also the trauma to the child of finding out the parent he thought was his father is not. We do not want children to be fatherless. Nevertheless, a California court threw out a child support order when a construction worker proved he was not the father, saying “[W]hen a mistake occurs in a child support action, the county must correct it, not exploit it.”
Some men are bringing suits against the biological father to recoup the cost of raising a child who turns out not to be theirs. In New Jersey, a man recently won the right to sue the biological father for over $100,000. He found out the child was not his some 30 years after the birth.