California Paternity Justice Act: If The Genes Don't Fit, You Must Acquit, by Glenn Sacks

Special to TLE

When Larry Nicholson went to court after receiving a child support order, he knew something wasn't right.

"I looked at the child," he says. "The child is white. I'm black. Now I'm not an expert in genetics, but I knew something had to be wrong."

It sounds like an easy problem which any reasonable judge would remedy with one pound of the gavel, right?

"I got a DNA test that excluded me as the father," Nicholson says. "The judge refused to consider the DNA evidence--not to mention the obvious evidence right in front of him--and made a child support order. He said that the time period for challenges to paternity had run out. But nobody had ever served me--I knew nothing about it until I got a bill saying that I owed support and that I was $75,000 in arrears. If I had known, I would have contested it in a second."

Nicholson now pays over 40% of his take home pay in child support and arrearages, and will be paying for the next 13 years. Meanwhile he has a wife and a daughter of his own to support.

Nicholson's ordeal has occurred in part because, under current state law, unwed men named in default judgments have only six months to contest an order assigning paternity. Other men faced with erroneous paternity judgments signed paternity declarations under the mistaken belief that they were the fathers, and had only two years to contest the ensuing judgment.

The Paternity Justice Act of 2002 (AB 2240), recently introduced into the California State Assembly by Assemblyman Rod Wright (D-Los Angeles), is designed to remedy these injustices by extending the period during which judgments of paternity may be challenged through genetic testing. The bill requires courts to vacate paternity judgments which are shown to be erroneous, thus relieving falsely identified fathers of further child support. Legislation to combat paternity fraud has been introduced into the legislatures of several other states, including Vermont, New Jersey, Oklahoma, and Georgia.

Erroneously identified fathers often face a number of obstacles. For one, they are often misled into believing that they are the children's biological fathers. Others, like Nicholson, have not been served or notified, and are not even aware that they have been named the father of a child until their wages are garnished. In both cases, the time period under which they can contest paternity has often run out before the men have become aware of reasons to challenge it. In the case of default judgments, men generally bear the burden of proof and often find it difficult to convince the courts that they were never served or notified.

How many men are victims of mistakes or fraud in regard to paternity? Of the nearly 300,000 cases evaluated each year in the United States, roughly 30% exclude the tested individual as the biological father. Even blood typing examinations taken decades ago showed that at a bare minimum 10% of the fathers who signed their babies' birth certificates were unknowingly claiming paternity of children who weren't theirs. Carnell Smith, the founder of US Citizens Against Paternity Fraud, estimates that as many as 20% of all fathers are victims of paternity fraud.

Paternity fraud victims' stories often provoke disbelief. For example, four years ago Air Force Master Sergeant Ray Jackson was divorced by his wife. Soon afterwards, he discovered that the three children born during their marriage had, in fact, been the product of three different extramarital affairs. Jackson's ex-wife has disappeared with the children, and Jackson is still paying half his income to support children who aren't his and whom he'll probably never be allowed to see.

Los Angeles area technical instructor Bert Riddick, along with his wife and three children, fell from the middle-class to homelessness and welfare dependency within a few years of being falsely identified by an old girlfriend as the father of her child. Until going into hiding last year, Riddick was paying 60% of his net income in child support and arrears to the well-heeled ex-girlfriend who defrauded him. He says:

"The courts decide that I have to pay the child support because it is 'in the best interest of the child.' But I wonder which child they're talking about--the child whom tests have shown is not mine, or the three children who are mine and who I have to feed and clothe every day. Is taking half of daddy's money for 18 years in their best interest?"

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