Paternity: Innocence Is Now a Defense

July 14, 2004, by Wendy McElroy http://www.wendymcelroy.com

On June 30, a California man being forced to pay child support for a child he had not fathered got his day in court when the Second District Court of Appeal of California overturned a paternity judgment against him.

Los Angeles County, which had imposed the judgment, knew that Manuel Navarro was not the father of the child in question because DNA testing had proved so. Yet under both federal and state child-support laws, the county was still able to demand Navarro pay child support.

The court's landmark decision in Navarro's favor may well become the controlling authority for contested paternity in California and a legal precedent nationwide.

Navarro's case is typical of the false paternity claims and child-support laws that prompt men's-rights activists to condemn the family-court system as being virulently unfair to men.

When an unwed mother applies for welfare in California, the Department of Child Support Services routinely requires her to name the father(s) of her children.

The information provided is often incomplete. Moreover, even though the mother signs a declaration under penalty of perjury, false declarations go unpunished.

In March 1996, Los Angeles County filed a complaint to establish the paternity and child-support obligations of a "Manuel Nava" who had been named as the father of two boys receiving public assistance.

Based on the information the mother provided, authorities determined that Navarro was the father in question and served him with a complaint.

The county says it made "substitute service" of its complaint by leaving a copy of the summons with "Jane Doe," who was identified as Navarro's "sister" and "co-tenant." Another copy was sent by first-class mail.

The complaint would have asked Navarro to file a written denial of paternity within 30 days, as mandated by federal law. Otherwise, fatherhood would be presumed.

Navarro did not respond to the complaint within the 30-day time period -- he claims he never received it.

In July 1996, a court judgment established Navarro's paternity and ordered $247 a month in child-support payments.

Penalties for evading child-support payments can include the inability to obtain a driver's license and other business or professional "licenses" such as teaching credentials.

Credit ratings can also be ruined and the State Department may refuse to issue the "deadbeat dad" a passport. Thus, even if the court-ordered support is not garnished from wages, falsely named fathers have powerful incentives to pay up.

In July 2001, Navarro filed a motion to set aside the court's judgment because a blood test proved he was not the boys' father. Although both the federal and state "challenge periods" had long passed, he argued that the mother had committed fraud by naming him.

He also claimed to have never received the original complaint or default judgment. The court denied the motion.

Navarro's case is not unique. For example, in California, in serving child-support judgments, "substitute service," rather than "personal service," is a common practice.

A March, 2003 study prepared at the request of DCSS, "Examining Child Support Arrears in California," ( pdf 147 pages, 544 kb) found that most complaints in California are delivered by substitute service, "which suggests that noncustodial parents may not know that they have been served."

"In Los Angeles County in 2000 ... 79 percent of paternity judgments were decreed by default," father's-rights advocate Glenn Sacks explains. "Most of these men had no idea they were 'fathers' until their wages were garnished."

In an article entitled "Injustice by Default: How the effort to catch 'deadbeat dads' ruins innocent men's lives," journalist Matt Welch asked California DCSS Assistant Director Leora Gerhenzon what would happen if a woman had named "Matt Welch" -- a white guy between 30 and 40 years old, who maybe lives in the Los Angeles area, as the father of her child.

Gerhenzon answered, "We run our search on him; if we come back with one Matt Welch who lives in L.A., whose birthday fits that 10-year range, and we have nobody else, we presume in general we have the person."

The argument could be made that current laws encourage false-paternity claims. To receive federal funds on child-support orders, states must name the fathers of the children on assistance. Since there is no federal requirement for DNA testing for paternity, there is no state requirement.

Indeed, father's-rights advocates argue that there is an incentive for states to bypass costly testing which might rule out fatherhood. In 2002, former California Gov. Gray Davis admitted that $40 million in federal funds could be jeopardized by widespread paternity challenges.

For this reason, among others, in 2002 Davis vetoed the California Paternity Justice Act, (AB 2240), which would have extended the challenge period and vacated judgments against falsely named "fathers." Women who knowingly signed false declarations of paternity would have been liable for criminal prosecution.

(Another factor in Davis' veto was the political pressure of groups like the National Organization of Women, who successfully argued that passing the act would harm children who might lose support payments.)

In hearing Navarro's appeal, the Second District Court acknowledged that "by strict application of the law, appellant should be denied relief ... Sometimes even more important policies than the finality of judgments are at stake, however."

The appeals court explained, "the County ... should not enforce child-support judgments it knows to be unfounded. And in particular, it should not ask the courts to assist it in doing so. Despite the Legislature's clear directive that child-support agencies not pursue mistaken child-support actions, the County persists in asking that we do so. We will not sully our hands by participating in an unjust, and factually unfounded, result. We say no to the County, and we reverse."

How many falsely named "fathers" could this decision affect?

A study by the American Association of Blood Banks found that "the overall exclusion rate [of paternity on tested men] for 1999 was 28.2 percent for accredited labs."

That figure is undoubtedly higher than what would be found in a random sample of the general population, as men who request tests already have reason to question paternity.

No one knows the real number. What is clear is that courts across North America must follow the Second District Court's lead and exonerate men from false paternity claims.

Copyright 2004 Wendy McElroy.