Archive for November, 2006

Memorandum /CLASP-P.ROBERTS/

Paternity disestablishment 2006

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CLASP-Biology and Beyond by P.Roberts

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Truth and Consequences3 by P.ROBERTS

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Truth and Consequences 1 by P.ROBERTS

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Analysis

Written Statement ofJohn Smith, Research AnalystAlliance for Non-Custodial Parents’ Rightsfor the Hearing on Child Support and Fatherhood ProposalsJune 21, 2001THE COMMITTEE ON WAYS AND MEANSSubcommittee on Human ResourcesCongressman Wally Herger, ChairmanMailed to:Committee on Ways and Means
ATTN: Chief of Staff (HR-6)
U.S. House of Representatives
1102 Longworth House Office Building
Washington, D.C. 20515
Prepared June 25, 2001FOCUS OF THE HEARING:This hearing will focus on child support and fatherhood proposals.Analysis of the Background InformationA problem cannot be solved until it is recognized and understood. The information presented in the background section contains many misunderstandings, myths and falsehoods.CSE programs were established in 1975. Year after year, we hear of record amounts of child support that has been collected. If child well-being is proportional to the amount of money one has, then we should be experiencing record-high child well-being. There has been a 100 percent increase in collections from 1993 to 2000. Has child well-being increased 100%? To paraphrase Ronald Reagan, “Are children better off today than they were in 1975?”The 1996 welfare reform act is all too typical of child support legislation. It’s sole focus is on dollars collected, not child well-being. If collecting money is so important for children, then why not amend our laws to grant custody to the higher wage earner – usually the father? This would also reduce the collection problem. Even though noncustodial mothers have by far the worst child support compliance rate, all things being equal, because their orders are systemically set lower than a father’s child support order[1], less money would go uncollected.The 1996 welfare reform act still promotes the notion that one parent can be replaced by money. Conservatives correctly recognized that sitting at home collecting a welfare check was wrong, but failed to recognize that sitting at home collecting a child support is just as wrong. Child support contains no accountability on the part of the custodial parent, as to how it’s spent. Economists estimate that only $1 out of every $5 in child support is spent on the child’s needs.[2] Social science research has been showing us for the past 10-20 years that this is wrong. Kids need both parents. Money is not the solution, it is the problem. Parental involvement is the solution. It’s what kids need. It reinforces each parent’s responsibilities. We must remove the profit motive from family disintegration.A common myth is that poverty is the root of all these problems and money is the cure for poverty (no distinction of earned versus unearned money is made – a fatal flaw). Studies show an inversely proportional relation between child support and child well-being. These studies show states with the highest child support and welfare awards rank lowest in child well-being, while states with the lowest child support and welfare awards had children with higher child well-being?[3] The key determinant is family structure. Child support and welfare are single-mother household enablers. And don’t use poverty as an excuse. Recent immigrants living below the poverty line had children with better academic performance and fewer behavioral problems than kids living above the poverty line. The reason: the immigrant families tended to be intact families. Poverty doesn’t cause broken homes, broken homes cause poverty.Another major problem with using money is that in today’s dynamic, global economy – one’s economic stability is unpredictable, as evidenced by the stock market and the economy – last year, the sky was the limit. This year, a constant stream of bad news. Our child support laws ignore this reality, which is why many ignore these laws. If you remove the specific monetary amounts from child support and simply let each parent raise their child according to their own beliefs, we’d be much better off.By forcing people to pay a fixed amount of their income (based on a percentage, but not allowed to fluctuate with actual income), we ignore reality. By basing child support NOT on what it costs to raise a child, but on what the average person spends (USDA figures), we strip a person of their individuality and force average values down their throats. Since we have the second-lowest savings rate and one of the highest debt rates of Western countries, this goal is nothing to aspire down to. Ironically, it punishes the responsible (frugal) people the most.The increasingly draconian measures passed by Congress now threaten everyone’s privacy and freedoms. The Financial Institution Data Matching (FIDM) program scours everyone’s bank account, whether they have been part of this child support system or not. Ditto for the National Directory of New Hires (NDNH). The Federal Parent Locator System (FPLS) is used against fathers, but if the mother kidnaps his children, it will not be used for the father. Blatantly sexist policy.Paternity establishment have hit record levels, but there’s a dark side to this story which is now becoming very public. 28% of DNA tests reveal that men accused of being the father are in fact, not the father.[4] In Los Angeles County, over 70% of paternity establishments are done on a default basis.[5] The DA’s office estimates that more than 350 innocent men are incorrectly named in child support orders every month.[6] This means the alleged fathers were not present. Very often, the alleged father was never notified. Paternity fraud perpetrators have not been prosecuted, while innocent men are being driven into poverty and homelessness by child support policy.Creating programs to “improve the employability and earnings of non-custodial parents” is nothing short of slavery. It sounds nice. Sounds like you’re here to help them, but when you see that federal law permits wage garnishment of up to 65% of their pre-tax wages, this program is slavery. Enslaving men to perform labor to earn money which is then blindly handed over to custodial mothers for use at their discretion.Is the “Child Support Distribution Act of 2001” really seeking to enhance the role of noncustodial fathers or to enhance the pocketbook of custodial mothers? If the purpose is to enhance the father’s role, then money will be de-emphasized and parental involvement (visitation) will be greatly emphasized.The proposals want to promote marriage. This sounds well and good, but when one considers what happens to married men in family courts and child support, this becomes a specious goal. Dr. Sanford Braver of Arizona State University points out the two distinct groups of fathers – never-married and divorced:“It should be obvious that the two groups should always be separately addressed in any analysis or policy discussions. The distinction, however, has been too infrequently recognized or cited.”[7]If, for the first time in history, this government program (HR 6) works perfectly as intended, we will have solved the unmarried portion of the problem. Men will marry and take responsibility of their children.Alas, some small flaws exist in this thinking. What do we know about divorced fathers? We know that women initiate the vast majority of divorces. And no, folks, these women are not “trapped in bad marriages” or “abusive relationships” that many feminists with an agenda claim (ironically these same feminists have never been married or raised children). They had simply “grown apart” or “didn’t feel appreciated.” Dr. Braver questioned the women actually going through the judicial system and they loved it. Why? Because they got whatever they wanted and felt they were in complete control. We know that men are helpless to stop this, thanks to no-fault divorce laws. We know that the judicial system has a systematic bias against including these fathers in their children’s lives (known as the tender years doctrine). We know that politicians believe men to be politically impotent and therefore write gender-biased laws favoring women.Once these poor, irresponsible fathers become middle-class, responsible fathers, they will face the same unfairness of the child support system. In the divorced group, it hurts even more because these fathers were connected with their children, they are educated enough to know they are getting screwed out of their money and children. So while HR 6 is looking for ways to raise never-married fathers up, our system forces divorced fathers into exile by placing into law excessive child support awards and draconian punishments. Then politicians wonder why we have a fatherlessness problem.Recommendations 1. Shared ParentingMake equal shared parenting the law of the land. Each parent would get exactly 50% of the physical custody time with each parent, unless the parents reach a voluntary agreement stating otherwise. Neither parent is allowed to move away (outside the school district or county) unless a voluntary agreement is reached. The concept of custody is eliminated – neither parents owns the child. Because each parent is spending equal time raising their children, the need to collect child support disappears. Write the law in such a way that eliminates all discretion from judges, as judges tend to write law from the bench. Any judge that deviates from this statute should be removed without pay until a full investigation is completed as to why she did not follow the law (similar to an officer involved shooting).2. Paternity FraudProhibit courts and administrative agencies from prosecuting a man whose DNA test results prove he is not the father.Make DNA testing a prerequisite for opening child support cases.Paternity will be based strictly on DNA evidence, not on actions such as holding yourself out as the father, written or signed paternity acknowledgements, confessions or statements. Since the man was given fraudulent data to base his decisions on, any paternity decision represents an invalid contract. Exceptions to the strict DNA rule would be 1) when the father has legally adopted the child and/or 2) when the child was conceived through a sperm donor.Vigorously prosecute perpetrators of paternity fraud.Allow the alleged father to have custody of the non-biological child and make the mother pay him child support.No statute of limitations placed on the alleged father for challenging paternity or make the statute of limitation on paternity determination the same length as those used for failure to pay child support. For example, the statute of limitations might be 7 years from the last time the mother or State asked for (not received) child support – which was a fraudulent action.Provide the victim the ability to sue the mother to recover any and all child support, legal costs, other costs, lost wages, lost interest and emotional damages. [Since the State provide enforcement services for collecting child support, perhaps the State should be mandated to provide for recovering this fraudulently obtained money.]Allow family victims (e.g. second wives, parents) to sue the mother for damages, including emotional damages.3. Promoting MarriageInstead of, or in addition to, creating new programs to promote marriage, eliminate the existing programs that punish married men.Eliminate no-fault divorce laws. Withhold federal funds to states that do not repeal no-fault divorce laws (I believe the Feds withheld highway funds to Arizona when the State failed to make Martin Luther King’s birthday an official holiday).Withhold federal funding from any and all groups that provide no-cost and low-cost divorce clinics. This is currently being done to groups that provide abortions.4. Promoting FatherhoodIn addition to making shared parenting law that national standard, we need to recognize that: ·        Fathers are much more likely than mothers, to make sure the children spend time with the other parent ·        Fathers want to spend more time with family; Mothers want to spend more time on their careers ·        The more money a man earns, the more likely he is to marry. Just the opposite is true for women. ·        Single-mothers are afraid to enforce rules and discipline as they fear losing their child’s love. This leads to kids that respect nobody, feel they don’t have to obey rules (they never had to before) and there are no consequences for breaking rules. The world revolves around them ·        Fathers’ rights groups are fighting for more responsibility in their children’s lives, while Women’s rights groups are fighting for less responsibility (e.g. govt funded daycare centers). ·        We must stop granting women special privileges, often with reduced responsibilities. For instance, pregnant women can choose to: ·        Have the baby and remain as an intact family ·        Have the baby and charge the father with child support ·        Anonymously drop off the newborn at designated centers, without fear of prosecution ·        Have an abortion ·        Put the child up for adoption Why aren’t men offered any of these choices? This reflects the gender bigotry rampant in our society.· End gender bigotry. As Dr. Farrell points out, ‘He gets jail; She gets an array of social services offered to her.’It’s time we stopped blaming fathers (and men) for everything that is wrong in the world. Until we do, we shouldn’t expect things to get any better. 

[1] Farrell, Warren, Ph.D., “Father and Child Reunion,” Tarcher-Putnam, 2001, p. 175, from an HHS study.[2] Comanor, William S., Ph.D., “Child Support Feels Different on Male Side,” Los Angeles Times, Feb. 22, 1999.[3] Testimony of Cynthia L. Ewing, Senior Policy Analyst, Children’s Rights Council, before the US House of Representatives Committee on Ways and Means, Subcommittee on Human Resources, Feb. 6, 1995.[4] American Association of Blood Banks 1999 Annual Report. See also “In Genetic Testing for Paternity, Law Often Lags Behind Science,” New York Times, March 11, 2001[5] Los Angeles Times, April 12, 1998, B1.[6] Los Angeles Times, Oct. 11, 1998, A27.[7] Braver, Sanford, Divorced Dads – Shattering the Myths, Tarcher Putnam, 1998, p. 22.

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Who’s Your Daddy?

Who’s Your Daddy?posted by Deven Desai

The New York Court of Appeals has held that:

[A] man who has mistakenly represented himself as a child’s father may be estopped from denying paternity, and made to pay child support, when the child justifiably relied on the man’s representation of paternity, to the child’s detriment. We reach this conclusion based on the best interests of the child as set forth by the Legislature

The case is Matter of Shondel J. v. Mark D.

The opinion indicates that under New York law the doctrine of estoppel in paternity matters focuses on the child and as such is gender neutral. The court demonstrated this neutrality by citing to a case where a wife was not allowed to challenge paternity when she had treated and accepted the husband as the father for two and half years before challenging his paternity and “permitted her husband and child to form strong ties together.”

The court also noted that when a man “acquiesced in the establishment of a strong parent-child bond between the child and another man” he would be precluded from asserting paternity because “the child would be harmed by a determination that someone else is the biological father.”

This case reminded me of Jared Diamond’s, The Third Chimpanzee. In that book he noted that one study indicated that 10% of babies in the study were not biologically related to the legal father. One blog has dug into the mistaken paternity numbers issue and lists several studies before concluding that the rate may be closer to 2-4%.

By the way one study seems to show that when a father is pretty certain about paternity the rate of finding non-paternity is low (median 1.7%) but when the father has questions about paternity the rate is high (median 29.8%). The full paper is How well does paternity confidence match actual paternity? Evidence from worldwide nonpaternity rates by Kermyt G. Anderson.

Which bring us to the dissent in the case. Judge Smith argues forcefully that the evidence shows that the mother lied and committed fraud (she swore she did not have sexual relations with any other man) and that the ostensible father did not commit a fraud of any sort and as such should not be subject to the doctrine. The argument denies the majority’s position that the child is the one upon whom the fraud is committed.

The majority opinion countered the dissent by putting the problem this way:

Given the statute recognizing paternity by estoppel, a man who harbors doubts about his biological paternity of a child has a choice to make. He may either put the doubts aside and initiate a parental relationship with the child, or insist on a scientific test of paternity before initiating a parental relationship. A possible result of the first option is paternity by estoppel; the other course creates the risk of damage to the relationship with the woman. It is not an easy choice, but at times, the law intersects with the province of personal relationships and some strain is inevitable. This should not be allowed to distract the Family Court from its principal purpose in paternity and support proceedings — to serve the best interests of the child.

Thus it seems that if someone is in that high doubt range that Anderson documents, he should ask for a paternity test and risk his relationship with his wife.

I do not claim to have an answer here. I am merely teeing this one up to see what comments if any can enlighten me on the issue of when paternity should be found despite a lack of biological connection between the father and child.

Posted by Deven Desai at July 11, 2006 01:31 PM

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Paternity Fraud-Fatherhood, Child Support, and DNA

It is a fact of biology that while it is relatively difficult for a woman to mistakenly believe that a child is hers, such errors aren’t too difficult for men. A man has to trust that the woman he is with is bearing his child when that is what she tells him; unfortunately, not all women are entirely trustworthy, and those who are can honestly identify the wrong man as the father of her children. What happens then?

In the past, nothing could be done because proving paternity was impossible. You could make guesses based upon whom the child most looked like, but in reality the only proof of paternity was being married to the mother when she gave birth – thus giving rise to the common law principle that the father of a child was the man married to the mother.

Today things have changed because paternity can be proven or disproven conclusively with DNA tests. A man can be absolutely sure if a child is his or not – and it’s not a trivial matter. Lest anyone think that there is nothing but misogynistic bigotry behind the concern over accurate claims of paternity, a 1999 study by the American Association of Blood Banks discovered that in 30 percent of 280,000 blood tests performed to determine paternity, the man tested was not actually the biological father of his children.

This has begun to raise to some very difficult ethical issues, not the least of which is the growing movement of men who are fighting what they call “Paternity Fraud.” In an unfortunate number of cases, men have paid years of child support only to find out later that the children they thought were theirs were in fact fathered by another man when their wives (or girlfriends) were unfaithful.

According to some, this constitutes fraud – at least when the claims of paternity were known to be false or were at least known to be doubtful. Fraud is a criminal act done to secure unfair gain; in most cases when fraud is discovered, the victims of fraud are compensated and they stop paying – but that is not what happens in these paternity cases.

Most of the time the men involved have absolutely no recourse whatsoever. At best, the law provides a narrow window of opportunity to challenge paternity, but that window closes after a few months or a couple of years. This is a time when a relationship (often a marriage) is either still strong or, if rocky, the couple is trying to make things work – to bring a paternity challenge is to allege a serious breach of trust and honesty at a time when it would do the most damage. As a result, few can be expected to make use of this window.

The problem here is a very fundamental question of fairness. No matter what happens, someone is going to lose. On the one hand, it certainly isn’t fair for a man to be forced to pay child support for a child who isn’t his. If a DNA test can be used to establish paternity and force a man to make such payments, why can’t it be used in the reverse?

On the other hand, it would certainly be a serious loss for the child if such payments are allowed to stop. Child support payments can be crucial when it comes to the health, education, and welfare of a child. That, however, is a poor argument – yes, the child may need financial help, but that doesn’t mean that the help must come from a man who isn’t the child’s father. If the aid is so important, why not track down the actual father and make him pay? We don’t grab random men off the street and force them to make child support payments for kids that aren’t theirs merely because the aid is important.

Another argument commonly offered is that the cessation of such payments will interrupt the parent-child bond which is so important in the emotional and psychological development of a child. Once again, that is true – but it is also often irrelevant because in many cases the fathers have little or no bond with the children or have had no bond for many years. It is unfortunate that they have not been making an effort to be fathers to the children they thought were theirs, but that’s another ethical question entirely – in this matter, it is clear that where no bonds exist, the termination of financial support can’t create a new separation.

For that very reason, it really doesn’t work to try and claim that such men should just step forward and be an active father for a change. If for whatever reason they found themselves unable or unwilling to do so before, that’s even less likely to happen now that they know they aren’t really the biological father of these children. Then there is the emotional and psychological toll on a person who has just found out that he has been lied to for years but has absolutely no legal recourse. The emotional and psychological resources necessary for “being a dad” can’t be turned off and on at will. Some people aren’t cut out for it and some situations conspire to prevent it.

There is no doubt that child support payments are important and that their loss will harm the child. The source of this injustice does not appear to lie with the men, however. It’s not necessary to stray into a convoluted discussion about who bears the blame for the dissolution of a relationship – even if the man bears most of the responsibility, it is still the responsibility of the woman to be honest about whose children she is bearing and/or any doubts she might have about their paternity.

Honesty at the beginning would go a long way towards eliminating this problem completely. Unfortunately, we do have this problem now and we have to deal with it now – we can’t go back and change the past, although measures to keep this from happening as often in the future might be a good idea.

State governments have begun, slowly, to respond to this issue.
Georgia passed a law in 2002 that allows courts to terminate child-support obligations of men who can prove they are not the fathers.
Maryland allows an unlimited time period for challenging paternity, while the legislatures of other states have considered similar measures.

Is fatherhood just a matter of biology? Of course not – when a man has filled the social, emotional, and psychological role of a father for a child for some period of time, then for all intents and purposes he is the father and child support payments can be fairly demanded (but does that exclude any obligation from the biological father? Another interesting question…). If, however, he has done little more than fill the financial role of father by sending in such payments, then proof that he isn’t the biological father should be sufficient grounds to end those payments. Fatherhood may be more than just a matter of biology, but it’s also more than a matter of a monthly check as well.

From Austin Cline

 

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