PATERNITY FRAUD-SUCCESSFUL WINNING STRATEGIES

PATERNITY FRAUD

SUCCESSFUL WINNING STRATEGIES

17 May 2001

By Louis Kiefer and William O’Shea

Kiefer and O’Shea
Attorneys at Law
21 Oak Street, Suite 310
Hartford, Ct 06106

Note: Attorney Kiefer and O’Shea several years ago successful reopened a judgment of divorce, had the court make a finding that the presumed father was not the father of a 12 year old girl, had the court erase an arrearage of $4,000.00 and had the court order the mother to pay back $9,000.00 in child support collected by her failure to identify the father.

“The court today, with the use of DNA testing, does not have to have the wisdom of King Solomon to determine who the biological father is.”

There is nothing more outrageous in today jurisprudence than paternity fraud which requires the victim to pay thousands of dollars to the perpetrator of fraud, a system which places efficiency of injustice over the inefficiency of justice and hides in failure to do justice under the verbiage of “best interests of the child.”

The following represents the winning strategy to set aside the paternity fraud.

Proposition One: In politics and in paternity you cannot beat someone with nobody.

Proposition Two: Never depend on discovery to build a case because you won’t be permitted to obtain it and therefore won’t have a case.

Proposition Three: Bring all your actions at once, because if you don’t, a loss in one court may prevent success in another.

Proposition Four: In civil actions based on fraud, you may be entitled to a jury.

Proposition Five: In civil actions, unless authorized by statute, your ex wife will not be entitled to attorney’s fees.

Proposition Six: Never use non paternity as a defense in a child support enforcement action.

To succeed in trial you must:

(a) investigate
(b) self-educate and educate your lawyer
(c) go on the offensive
(d) strategize.

ESSENTIAL STEPS TO TAKE:

INVESTIGATION

1. PROVE, THROUGH COMPETENT MEDICAL TESTING, THAT YOU ARE NOT THE FATHER.

This means that you are able to take the child for a mouth swab for saliva which, together with yours, can establish whether you are the father or not.

The DNA [test] no longer requires both parents, no[r] does it require blood to be drawn.

You cannot prove [non-paternity] by statements of your ex-wife because at the last minute she will deny saying it. You need DNA evidence.

2. FIND OUT WHO IS MOST LIKELY THE BIOLOGICAL FATHER

This is important because you will sue him for:

(a) a finding that he is the father
(b) that he pay back child support
(c) that he provide medical insurance
(d) that he reimburse you for necessities

3. FIND OUT IF YOUR WIFE TOLD ANYBODY DURING HER PREGNANCY OR AFTER BUT BEFORE YOUR DIVORCE THAT YOU WERE NOT THE FATHER.

In order to sue for fraud you must allege and prove the following:

(a) she made a statement which
(b) she knew was false
(c) upon which you relied to your detriment

Her defense may be that it was just a mistake. If you can prove that she knew you weren’t the father before the divorce you have evidence of fraud.

In one case the wife had told a friend: “If my husband ever knew who the real father was, he’d kill me.” That was enough to show that she knew her statement was false. She didn’t have to identify at that time who the real father was – only that you weren’t the real father.

EDUCATE YOURSELF and YOUR LAWYER

Research the following:

Did the court have jurisdiction of a child who was not the issue of the marriage? Issues of jurisdiction can be raised at any time. Black letter law was that a court could not award custody of a child of the marriage to a step-parent as part of a divorce action. Consequently you should be prepared with a legal brief showing that the court had no jurisdiction over the child and therefore could award neither custody nor make an order of support.

Did the court have jurisdiction to terminate the biological parent’s rights without giving him notice?

This is the flip side of the first point. Some adoptions have been overturned because the father did not consent. Those cases sometimes involved fathers who did not know they had a child.

Does the court have jurisdiction to identify the biological father and order him to pay support?

Generally one can bring a paternity action at any time during the child’s majority. Generally one can obtain past child support for a number of years, such as two or three.

Does your jurisdiction have a Statute for Necessities?

The statute provides that any person, or institution who has provided necessities to a child may sue both parents for reimbursement. This is often used by hospitals, doctors and dentists, but can be used by drug stores, food stores (for food) and, probably by you if you have furnished necessities. However this statute would probably have a three or six year statute of limitation.

In Connecticut there was a case in which the divorce court said that father will be responsible for all medical bills. The child went into the Elmcrest Psychiatric Hospital who sued both the mother and the father. The mother claimed no duty because the divorce court had made the father responsible for future bills. The court said too bad. Both are liable, notwithstanding the orders of the court.

Does your state permit jury trials on fraud cases, contract cases, and if so, does it permit double damage or punitive damages or attorney’s fees in fraud cases.

LETS ASSUME YOU HAVE IDENTIFIED THE REAL FATHER; YOU HAVE EVIDENCE THAT YOUR WIFE LIED ABOUT YOU BEING THE FATHER, AND THAT YOU CAN PROVE THAT YOU ARE NOT THE FATHER.

State two or three lawsuits as follows:

1.      In the divorce court to reopen and set aside the finding of paternity and to establish paternity. Move to impl[y] the bio father in that action.
Move for blood tests of the bio-father.

2.      In the civil court sue mother for fraud (or mutual mistake of fact) seeking money damages, and punitive damages.

3.      Bring a suit against the bio father and mother for necessities and the bio father for past due support.

4.      In the civil action, notice the person who did the DNA testing for a deposition, take the deposition and establish as a matter of fact that you are not the father.

5.      In the civil action, notice the mother for a deposition and ask her who is the father, when she knew, and if she told the father.

6.      In the civil action, notice the bio father and see when he was told that he was or might be the father, whether he was having intercourse etc.

DON’T PIECEMEAL THE LITIGATION: START THEM ALL AT ONCE.

IF YOU PIECEMEAL, YOU MAY FIND THE DIVORCE COURT MAKING A FINDING THAT YOU ARE THE FATHER WHICH WILL BAR YOU IN THE CIVIL COURT.

DO NOT TAKE DEPOSITIONS IN THE FAMILY COURT

The judges will not be friendly in that court, may order you to pay attorneys fees etc. The judges in the civil court can’t order you to pay her fees.

WHEN YOU HAVE THE EVIDENCE IN THE FORM OF A DEPOSITION ABOUT THE DNA/AND MOTHER FILE A MOTION FOR SUMMARY JUDGMENT ATTACHING THE DEPOSITION TO THE MOTION.

This can be filed in both courts and now the judge will have to look at the evidence and do some soul searching.

PREPARE FOR BEST INTEREST ARGUMENT IN FAMILY COURT

Here is where you may try different approaches. It becomes a strategic planning decision.

You may, in your motion in the family court, specifically allege the failure to have contact or a relationship, that the child will for cultural, ethnic, or geographical reasons have a better chance with the bio father than with you. You may document the number of times of missed visitations, the relocations or other facts to show that the best interest will be serve by having you removed and the other father substituted. He may have more money, more assets, she might get more child support under the guidelines. For medical diagnosis and treatment she may belong to a “favored” population or minority. She may, as a minority, be entitled to preferences in hiring, and in education. Think of all the reasons why she would be better off. Make the assertion about best interests.

Or demand custody and more time and let the mother show that the daughter hates you. It’s a choice.

HERE ARE THE FIVE KEY THINGS TO BE SUCCESSFUL:

1. To win a paternity fraud case in most jurisdictions, you must show that you did not know that you were not the child’s father until it was too late.

2. You must show that you had no reason to suspect you were not the father, and that therefore you never had a paternity test until recently.

3. If you learned that you are not the father, you must have stopped holding yourself out to be the child’s father. This puts fathers that learn of their cheating wives in a real bad situation—should they continue to pretend they are the legitimate father, this could come back to haunt them during a marriage breakup. But if you do keep holding yourself out as the father after learning you are not the biological father, as Caesar, you have crossed the Rubicon and cannot turn back.

4. If you are divorced and paying child support when you learn that you are not the father, you must immediately report the fraud to the court and contest paternity and child support. If you, as they say in equity, “sit on your rights,” you will not be able to prosecute your claim.

5. Never agree to pay child support if you suspect you are the victim of paternity fraud and always ask for genetic testing.

The court stated the law as follows:

“The essential legal analysis in these cases is twofold:

(1) APPLICABILITY OF PRESUMPTION OF PATERNITY: “First, one considers whether the presumption of paternity applies to a particular case. If it does, one then considers whether the presumption has been rebutted.

(2) PATERNITY ESTOPPEL “Second, if the presumption has been rebutted or is inapplicable, one then questions whether estoppel applies. Estoppel may bar either a plaintiff from making the claim or a defendant from denying paternity. If the presumption has been rebutted or does not apply, and if the facts of the case include estoppel evidence, such evidence must be considered.”

The court ultimately ruled that (1) the presumption of paternity was no longer applicable since there was no longer an intact family and that (2) paternity estoppel did not apply because the father was being duped for numerous years.

PURPOSE OF PRESUMPTION OF PATERNITY

“The policy underlying the presumption of paternity is the preservation of marriage, and the presumption only applies in cases where that policy would be advanced by the application. Here, there is no intact family or marriage to preserve; hence, the presumption of paternity is not applicable.”

WHY THERE IS PATERNITY ESTOPPEL

“Under the doctrine of paternity by estoppel, an individual may be estopped from challenging paternity where that person has by his or her conduct accepted a given person as the father of the child. Such estoppel is based on the public policy that children should be secure in knowing who their parents are, and, as such, it is designed to protect the best interests of minor children. As the Supreme Court has explained, “[I]f a certain person has acted as the parent and bonded with the child, the child should not be required to suffer the potentially damaging trauma that may come from being told that the father he has known all his life is not in fact his father.”

HUSBAND HAD NO REASON TO SUSPECT HE WAS NOT THE FATHER

“As noted, Appellant, having no reason to believe otherwise, held N.H. out as his own from N.H.’s birth in 1992 until genetic testing excluded him as the father in 2004. After the testing, Appellant testified that Wife accelerated his separation from N.H. Here, Appellant argues that the doctrine of estoppel is inapplicable because Wife’s fraudulent conduct was the basis for his treating N.H. as his own.

NORMAL PATERNITY ESSOPEL CHANGES WHEN THERE HAS BEEN FRAUD AS TO PATERNITY

“When allegations of fraud arise in a paternity action, an estoppel analysis must proceed in a different manner than it would without such averments. Evidence of fraud must be considered by the trial court in whether to apply paternity by estoppel. The test for fraud is: (1) misrepresentation, (2) a fraudulent utterance, (3) an intention by the maker that the recipient will thereby be induced to act, (4) justifiable reliance by the recipient upon the misrepresentation, and (5) damage to the recipient as a proximate result.

FAILURE TO MAKE REPEATED MISREPRESENTATION IS NOT ENOUGH TO BAR ESTOPPEL WHEN THERE IS FRAUD—THERE NEED ONLY BE MISREPRESENTATION

“In the instant case, the trial court adopted the hearing officer’s specific findings that since Wife did not make repeated representations to Appellant in response to repeated questions about paternity, there was no fraud. It is upon that basis that the hearing officer erroneously distinguished in Doran, supra, [Doran is a case where paternity fraud was found] from the case at bar. After careful review, we are constrained to conclude that Doran, as discussed infra, is wholly applicable here, and hence we reverse the order dismissing Appellant’s exceptions.

NOT DISCLOSING CHEATING WAS ENOUGH FOR A FINDING OF PATERNITY FRAUD

“An appellate court will not disturb an order of the trial court unless there has been an abuse of discretion. Judicial discretion requires action in conformity with law on facts and circumstances before the trial court after hearing and consideration. Consequently, the court abuses its discretion if, in resolving the issue for decision, there is insufficient evidence to sustain the order.

“Based upon our scope of review, we hold that the evidence was insufficient to support the trial court’s order. Wife, a medical doctor, conceded that at the time of conception, she had sexual relations with both Appellant and Dr. R.V. Further, Wife admitted that she never told Appellant about her meretricious relationship. Appellant, believing that their two forms of contraceptives were reliable, asked Wife how she became pregnant. Although it is apparent from Dr. R.V.’s testimony that Wife considered the possibility that he could have fathered her child, she failed to disclose to Appellant her sexual relationship with another man at the time of N.H.’s conception. Rather, the record reveals that Wife asserted to Appellant that the pregnancy could only have been caused by the failure of their birth control methods; correspondingly, her omission of materially relevant facts induced Appellant into acknowledging N.H. as his child.

PASSAGE OF DECADE DOES NOT MATTER

“Appellant operated for more than a decade under the false pretense that he was, indeed, N.H.’s father. It is undisputed that this subterfuge was a direct result of Wife’s misrepresentation by omission and intentional misstatements to Appellant. Furthermore, a review of the record infers that Appellant would not have held N.H. out as his own had it not been for Wife’s fraudulent conduct. We, therefore, find that Appellant made out a case of fraud and that the trial court abused its discretion. Appropriately, we hold that Appellant is not estopped from denying paternity of N.H. born during his marriage to Wife.

“Our decision in this case is not novel; in fact, we addressed a nearly identical issue in our recent decision in Doran, and concluded that we would not allow the application of estoppel to punish the party who sought to do what was righteous and reward the party who had perpetrated a fraud. In Doran, the appellant mother argued that either the presumption of paternity applied or the father was estopped to deny paternity because the child was born during the marriage, and the father held the child out as his own. Like Appellant here, the father was unaware that the mother had sexual relations with another man at the time of conception. Similarly, the father became suspicious, asked the mother whether he was the child’s father, and she assured him that the child was his. However, when the child was eleven, DNA testing established that the father was not the child’s biological father. This Court reasoned that although the father held the child out as his own from the child’s birth until learning the results of the DNA testing, he would not have done so had it not been for the mother’s fraudulent conduct. Thus, the father was not estopped from denying paternity, and we affirmed the dismissal of the child support order.

PUBLIC POLICY DOES NOT FAVOR PARTY BENEFITING FROM WRONG

“Moreover, most recently, in Gebler, we acknowledged that there is a “strong public policy against permitting a party who has acted in reliance upon a misrepresentation to suffer harm” and in that case, precluded the application of estoppel. In Gebler, the father held the child out as his own for eighteen months under the mother’s misrepresentation that he was the only one having sexual relations with her at the time of conception. Here, too, the doctrine of estoppel was held inapplicable as this Court concluded that the mother concealed that which should have been disclosed. See McConnell, supra; Sekol, supra; see also Moody v. Moody, 822 A.2d 39 (Pa.Super. 2003) (where the appellant was misled at the time he signed the agreed order of support, this Court refused to apply paternity by estoppel). Upon review, we find the rationale of Doran and Gebler equally applicable to the present discussion and reverse the order of the court dismissing Appellant’s exceptions.

“In light of our reversal, we need not address whether it was error for the hearing court to refuse evidence of genetic testing after Wife raised knowledge of paternity as a defense during her direct examination.

“Accordingly, the doctrine of estoppel is inapplicable and we reverse the order of the court entered on July 5, 2006, dismissing Appellant’s exceptions, and further, we direct the trial court to order the parties to undergo genetic testing.

The case was:

N.C. v. M.H., 2007 PA Super 123
N.C.,[fn1] Appellee v. M.H., Appellant.
No. 1472 WDA 2006.
Superior Court of Pennsylvania.
Filed: May 1, 2007.

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