NO: Biology shouldn't always be considered as destiny in child-support cases.

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Insight magazine, Washington, D.C., U.S. A., By Jenny Skoble, May 6, 2002

Since the early 1990s, DNA testing for paternity has been in widespread use across the country. These tests are highly accurate and now can be done without even having to draw blood. In the "buccal-swab" method, saliva is taken from a subject's mouth with a cotton swab. In many states, these tests are performed routinely in the offices of the state's child-support agency.

Easy access to reliable testing now has raised other questions. Should men be allowed to ask for a DNA test at any time, even if the child is long past infancy? Should men be allowed financially and emotionally to abandon children they have helped raise because it later is discovered that they are not connected biologically?

Until now, most states have placed some sort of time limit on the period in which men can bring evidence of DNA testing to a court to disprove (or prove) paternity. Among the principles underlying these limits are the finality of judgments, which prevents parties from endlessly reopening and relitigating cases, and the existence of a strong incentive for men to make every effort to verify their paternity before family relationships have developed and children become emotionally attached to the people they think are their parents.

Ever since DNA testing became common, these limits have been under attack by men who believe it is unfair that they have to pay child support for children who are not biologically theirs. Several states have adopted or are considering legislation that would remove all time limitations on the use of DNA paternity tests to show that the man was not the biological father and to have child-support judgments thrown out. These laws would apply to married and unmarried parents alike, and even in cases where the man had functioned as the child's father for many years.

The California Paternity Justice Act of 2002 (AB 2240), which currently is pending in the State Assembly, not only would eliminate that state's two-year limit on DNA tests, but would provide for the criminal prosecution of a woman who signed a declaration of paternity knowing that she was naming the wrong man as the father. By making stark scientific truth the only deciding factor, this bill ignores human realities.

Legislatures always have had great difficulty regulating the area of family law. Divorce, custody and support issues are extremely emotional for the participants, many of whom have had no other experience with the legal system. Few who go through the process feel fairly treated. There are wide discrepancies in the laws of various states; some states still require a finding of fault for the failure of the marriage before a divorce can be granted, while in other states no-fault divorce laws allow parties to divorce upon request.

There are, however, a few widely accepted principles. One of them is that all parents must take financial responsibility for their children. Unfortunately, in some unusual situations, men do end up paying support for children to whom they are not related.

In a typical case, a child is born out of wedlock. The mother and the man with whom she is involved at the time of the birth sign papers establishing that man as the child's father. Both parties know the woman's former boyfriend most likely is the father but, not wanting to have him come back into the woman's life, they both choose to identify the current boyfriend as the legal father.

Then, some time later, the relationship falls apart. The mother seeks a child-support order and the man is ordered to pay. So he goes to court to challenge the order, only to be told that too much time has gone by since the birth of the child. He now is barred from using a DNA test to show that he is not the father, and he must continue to pay support.

Unfair? It may seem that way. But what about the child? Regardless of the circumstances of conception, for the child this is the only father he or she has known. If this man disappears from the child's life, the child not only loses his financial support, but suffers the well-known emotional effects of being abandoned by a parent.

According to the New York Times, Morgan Wise of Big Spring, Texas, found out by chance three years after his marriage ended that he was not the biological father of three of four children with his former wife. At that time, the children ranged in age from 6 to about 12. Wise had custody of the children until shortly before he asked for the DNA paternity tests. Armed with the DNA tests, he went to court seeking an order that ended his child-support obligation. Instead, the court ordered him to keep paying support and cut off his visitation rights with the children when he insisted, against a court order, upon discussing the issue with them. The children, themselves innocent of any wrongdoing, lost the only father they ever knew.

Proponents of laws such as AB 2240 invoke the cases of men on death row who are released at the 11th hour, thanks to DNA tests showing they are innocent. Those men would have been executed, or at the very least lost their freedom for the rest of their lives. But having to support a child financially hardly is a comparable penalty.

Fathers'-rights groups invoke the specter of women conspiring to obtain child support by trapping innocent men and using fraudulent birth documents. The only statistic used by supporters of AB 2240 is a figure obtained from the American Association of Blood Banks stating that out of 280,000 blood tests conducted in 1999, the man tested was found not to be the father in 28 percent of the cases. In that same year, according to the U.S. Census Bureau, 3,959,417 children were born in the United States, 33 percent out of wedlock. Clearly, blood tests are not requested in the vast majority of cases but, rather, in instances in which a man has reason to believe he is not the father. A far greater social problem is the significant number of men who do not pay support for children who are theirs.

AB 2240 assumes that if the father was incorrectly identified, it necessarily is the result of the mother's knowing fraud. The bill takes a particularly punitive attitude, creating criminal penalties for any woman who signed a declaration of paternity knowing that the man she was naming was not the father. So what happens to the child when "dad" gets his paternity and support judgment thrown out and mom is tossed in jail for perjury? It seems obvious that a law that could create virtual orphans is not in the interest of these children or society as a whole.

The bill also provides that a man who has proved he is not the father can stop paying support, while still continuing his relationship with the child. This would seem to promote a Peter Pan-style fatherhood — going to Disneyland once a year with the kids is fun, but paying support is not.

The National Conference of Commissioners on Uniform State Laws — a body that includes judges, law professors and child-support advocates and professionals — drafted "model" legislation called the Uniform Parentage Act. It proposes a two-year window for setting aside a paternity judgment in situations where the supposed parents had a relationship. There is no time limitation in situations where the parents had no sexual relationship at the time the child was conceived and where the father "never openly treated the child as his own." In other words, the law provides no time limit for testing when no one reasonably could have believed that person to be the father. This seems a far more reasonable approach to the problem.

This controversy also should be viewed in the context of today's extended families. The nuclear family no longer represents the norm. Insisting that relationships be governed only by biological ties assumes that our lives should be governed only by science, not by any other factors.

What about controversial cases in which birth parents gave their children up for adoption and then changed their minds — but not until after the child had lived with the adoptive parents for a period of years? Most people would decry the evil of ripping children away from the only parents they had known in order to serve the higher end of scientific truth.

The law can address this same problem without hurting children: Men could be given better information about their rights and responsibilities at the time they sign a declaration stating they are the father of children born out of wedlock. They also could be advised of the availability of free DNA testing through the state's child-support agency. In addition, improvement is needed in the quality of the services child-support agencies provide in many states.

In too many cases, men do not receive proper notice of a child-support action being started against them. Therefore, they do not find out about it until judgment has been entered against them. Child-support agencies should eliminate the use of substandard notice methods, which would in turn reduce the use of default judgments that in some jurisdictions account for more than 80 percent of the judgments obtained by the local child-support agency. These protections would not apply for men married to the mother of the children; however, there is no evidence that deception is widespread enough to warrant concern.

As a society, we promote the importance of children. However, the statistics on child poverty and child abuse, as well as the state of our public-education system, tell a different story. We need to do more than pay lip service to the fact that children are both the most vulnerable members of society and its most important assets. Any laws that affect family life must give top priority to the best interests of children instead of making children suffer for the actions of their parents.

Skoble is an attorney in Los Angeles and director of the Child Support Project at the Harriett Buhai Center for Family Law, a nonprofit organization that provides family-law and domestic-violence services to low-income clients.

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