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Paternity Fraud

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Main article: Paternity fraud

Paternity Fraud is a legal grey area where DNA testing provides the Fact of paternity in Civil or Common Law systems that base issues of paternity as Presumptions.

Within these systems paternity fraud occurs when the presumption of, or establishment of, paternity is used to facilitate a fraudulent act or willful deception. Occurrences of paternity fraud usually involve a presumption of paternity against a parent with no genetic match to the child in question. Paternity fraud cases arise within a jurisdiction's relevant court system to address these presumptions. [1] [2] [3] [4]

DNA testing becoming commercially available in 1987 helped bring about a number of court cases and accompanying media coverage that brought the term "Paternity Fraud" into common usage during the 1990s, particularly from the United States. [5] Prior to this, only blood type comparisons could be used to exclude putative parents. Genetics, however, for the first time in history could confirm them. [6] [7]

Types & Causes

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 Most cases identified as paternity fraud result from limited or no opportunity for a putative parent to challenge presumptions of paternity. In general these include; the presumption of legitimacy by marriage, [8] determined parentage, [9] [10] default and ex parte judgments, [11] [12] time limits to contest paternity, [13] [14] not allowing a DNA test by restriction, [15] not allowing a DNA test as inadmissible and putative father registries.

 Paternity fraud actions are broken up into different categories with decisions or court opinions generally addressing each separately; Tort or civil fraud, [16] Extrinsic Fraud or obstructions, [17] Intrinsic Fraud or a false act leading to a legal decision in favor of the defrauder, which is then broken into two parts; [18] Fraud in the Inducement or the use of a deceit that causes someone to act against their own best interest, [19] and, Fraud in the Factum or the misrepresentation of the nature or subject of the transaction being entered into. [20] [21]

 Contrary to popular news media, where adultery and drama make for good headlines, paternity fraud actions are not always against a mother of the child(ren) in question. In some circumstances it is the local jurisdiction ignoring affidavits or DNA tests in the action with a mother supporting the putative parent. [22] Paternity fraud can also involve a child and parent that do have a genetic match, i.e. wrongful use of the in vitro fertilization procedure. [23] [24] Paternity fraud cases under different legal systems may include laws, issues or cross jurisdictions in a way unique to that country or system. India's dowry laws and section 112 of the Indian Evidence Act are two examples.

 Victims are rarely able to claim compensation in the civil court system, and even in countries where paternity fraud is a criminal offense, action is rarely taken against offenders. In 2008 it emerged that even though the United Kingdom government had exposed 4,854 cases of false paternity claims there had not been a single prosecution for the crime. [25] In 2012 the Iowa Supreme Court in ruling to allow a paternity fraud tort to proceed opined that allowing such litigation would help deter these types of cases and fit comfortably within the traditional boundaries of fraud law. [26]

Testing

[edit]

 DNA testing or Genealogical DNA testing, uses DNA to trace a child's genetic paternity. Testing is widely available, simple and relatively inexpensive. The most common form is a buccal swab taken from a person's mouth by rubbing a swab on the inner cheek and is considered a non-invasive procedure. [27] [28]

 Usually, only a jurisdiction's governing body, generally a civil family court, can order a test for cases such as Tort. [29] [30] [31] Places such as New York State put restrictions or bans on laboratories that offer home DNA testing. [32] Others, such as the United Kingdom's Human Tissue Act 2004, establish that in virtually all cases only those who have parental responsibility for a child are able to give written consent for a child's DNA to be used as a minor. [33] [34] [35] Criminal courts can also order a paternity test when jurisdictions overlap. [36] [37] [38]

 Family laws in many places put time limits on when a paternity test can be requested or a determination of paternity contested with parts of the United States adding further restrictions through putative father registries. [39] Limits can range from 20 days [40] or up to 1 year.[41] In cases where a presumption of legitimacy is already established a DNA test might be considered inadmissible regardless of the results or time passed. [42] [43] [44]

Occurrence

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 A widely quoted 2005 meta-study of 364,309 samples published by the Journal of Epidemiology and Community Health found the range in incidence of paternal discrepancy (PD) [45] varied between different marriage, ethnic and economic sub-groups while staying roughly the same overall when compared by country. The children with the highest rate of PD were born; with younger parents, of unmarried couples, of lower socio-economic status and from specific cultural sub-groups. [46]

  • Disputed paternity testing [47]
26.96% - (16 studies 340,445 samples)
 
3.7% [48] - 6.68% - (17 studies 20,871 samples)
 
  • Behavioral estimates [47]
13.43% - (2 studies 2993 samples)

 Lab reported data for "disputed paternity", which often has a high exclusion rate, does not mean that all of those excluded men were misled into believing they were a biological father and later found out they were not. Often for these cases two or more men may be tested on behalf of a single child meaning they could not all be a positive result. [49] The largest of the high risk PD groups identified were births to unwed mothers accounting for; 33.4% of Australian births, [50] 32.26% of Canadian births, [51] 47% of United Kingdom births, [52] and 40.8% of U.S. births, [53]

Controversy

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 New laws and guidelines have been proposed or enacted aided in part, or in reaction to, publicity raised by what most call Father's Rights Groups, especially since the advent of DNA testing. [54] [55] Noted figures include; (United Kingdom) child psychiatrist Alick Elithorn, [56] [57] songwriter Bob Geldof, [58] activist Matt O'Connor; [59] (United States) movement pioneer Dr. Alexander Dallek, [60] [61] activist Ned Holstein M.D., M.S., [62] [63] columnist Glenn Sacks; [64] [65] (Canadian) columnist Wendy McElroy; [66] (Australian) activists Ash Patil, [67] [68] Tony Miller OAM; [69] [70] and (India's) Ram Prakash Chugh. [71] [72]

Cases by Country

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Australia

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Magill v. Magill
[edit]

 The Victorian County Court in 2002 awarded Mr. Magill $70,000 compensation for damages and economic loss against his ex-wife as a result of DNA testing in 2000 that showed only one of three children he was paying support for were genetically his. [73] That ruling was later overturned in 2005 by the Victorian Court of Appeal finding that "intent to deceive" by the ex-wife had not been proven regarding misrepresentations made by Ms. Magill in birth forms about the childrens' paternity. [74] This ruling was in turn then appealed with the High Court of Australia. [75]

 In 2006 Australia's High Court struck down the appeal upholding the 2005 Victorian Court of Appeal ruling. [76] Chief Justice Murray Gleeson in the 94 page High Court Ruling opined, "Without doubt the appellant's wife deceived him but the hurtful deception was in her infidelity, not in her failure to admit it." [77] Mr. Magill as part of the ruling was also ordered to pay the Child Support Agency's legal fees during the previous 18 months of litigation. [78]

 The 2006 High Court Ruling led to many calls from within Australia for reforms and changes to the Family Law Act and the Child Support Act to help protect men in Mr Magill's situation. [79] By 2008 putative fathers in Australia could begin using DNA testing to confirm paternity regarding support orders after new changes, "section 143 of the Child Support (Assessment) Act", took effect regarding Family Court policies. The Magill case is often cited regarding new law reforms in Australia and is considered a landmark type case. [80]

Canada

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Cornelio v. Cornelio
[edit]

 Mr. Cornelio began paying child support for his ex-wife's twins after the couple separated in 1998. The former couple settled upon a joint custody agreement in 2002 that continued Mr. Cornelio's monetary support for the twins. [81] Shortly afterwards Ms. Cornelio requested a reduction in visitation time along with an increase in support payments that prompted Mr. Cornelio to question the paternity of the twins. A subsequent DNA test revealed that he was not their biological father. A request was made by Mr. Cornelio to be excused from paying further support claiming to be the victim of misrepresentation or fraud when Ms. Cornelio failed to disclose the affair while they were married when he signed the 2002 joint custody agreement. [82]

 The Ontario Superior Court of Justice in 2008 ruled against the request to be excused or reimbursed for support payments. Judge van Rensburg in deciding to deny the request noted Mr. Cornelio had wondered at the time of his separation if an affair by his ex-wife had actually been responsible for the twins. "It was not until access was interrupted and Ms. Cornelio commenced proceedings seeking increased child support that the respondent began pursuing this issue," the judge remarked. "The fact of that relationship – even if it has now become strained – is sufficient to require Mr. Cornelio to continue to contribute toward the children's material needs." [83]

United Kingdom

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Mr. A v. Ms. B
[edit]

 The split in 2002 between a couple identified for legal reasons as only, Mr. A and Ms. B, prompted Mr. A to pursue a parental contract to establish his non-married rights as their child's father. Ms. B then requested a DNA test that later showed Mr. A was not the (then) five year old's father. Following the discovery Mr. A then sued Ms. B for damages totaling up to £100,000 as a result of the deceit. [84]

 During 2007 in what was reported as the first known case of its kind to reach trial in Britain, the High Court ruled in favor of Mr. A awarding £7,500 distress damages with another £14,943 for holidays and meals out Mr. A spent on Ms. B, (not the child). The judgment fell short of listed suit amount because the London Court did not allow damages for the child's material costs incurred because of Mr. A's enjoyment of the relationship. The judge, Sir John Blofeld, said he was satisfied that Mr. A's motivation in coming to court was not as a lever for contact with the child but because he did not want "to be taken for a ride". [85]

United States

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California, County of Los Angeles v. Navarro
[edit]

 During 1996 the County of Los Angeles entered a default judgment against putative father Mr. Navarro and ordered him to pay monthly support for Ms. Doe's two children. [86] The complaint to establish paternity filed by the Bureau of Family Support Operations was based on information provided by Ms. Doe naming "Manuel Nava" as the children's father. The agency determined that Mr. Navarro was the father in question and delivered notice to his sister's residence listing Mr. Navarro as "co-resident", notice Mr. Navarro denied ever receiving. [87]

 In 2001 Mr. Navarro armed with a DNA test showing he was not the children's father sued the County of Los Angeles asking to be relieved from the support order. [88] The County of Los Angeles opposed the motion, arguing the motion was filed after the six month limit to contest a default judgment and the mother’s mere assertion that he was the father was insufficient to establish extrinsic fraud. The trial court sided with the County and denied the motion. This ruling was then appealed before the California 2nd Appellate Court of Appeal. [89]

 In 2004 the court of appeal reversed the trial court decision ruling in favor of Mr. Navarro and became the first published California case to hold that the statute of limitations did not apply in setting aside an old default judgment against a paternity fraud victim. [90] Immediately after the ruling was issued, the Los Angeles County Child Support Services Department announced that it would request that the case be depublished so it could not be used as a precedent by other men in Mr. Navarro's situation. [91] That request was later denied by the California Supreme Court.

Florida, Parker v. Parker
[edit]

 As part of their 2001 Florida divorce settlement Mr. Parker was obliged to pay $1200 monthly child support based on Ms. Parker's representations to the court that Mr. Parker was the child's biological father. In 2003 Ms. Parker filed a motion for contempt and a petition to enforce child support against Mr. Parker which prompted a DNA test showing that Mr. Parker was not the child's biological father. [92] The motion was 16 months after their divorce, Florida law (at that time) only allowed the husband 12 months to contest paternity following divorce. [93] Mr. Parker's court ordered payments would total about $216,000 over the next fifteen years.

 Mr. Parker filed a petition for relief claiming that the misrepresentation of paternity had resulted in a fraudulent support order. This was dismissed by both the Trial and then, in 2005, the Court of Appeal as being intrinsic fraud and subject to the Florida one year time limit to contest a dissolution decree, not extrinsic fraud, or a fraud upon the court, that can form the basis for relief from judgment more than a year later. This ruling was then appealed before the Florida Supreme Court who, in 2007, denied Mr. Parker's suit upholding the Fourth District Court of Appeal 2005 ruling. [94]

 During 2006, the Florida statutes changed allowing a DNA test to be considered new evidence to contest a support order after the one year time limit. [95] In it's published opinion the Supreme Court Ruling in 2007 noted the change in Florida Statutes, "which provides the circumstances and procedures under which a male may disestablish paternity and terminate a child support obligation," however the court decided not to considered the applicability of this new statute to Mr. Parker's circumstances, kicking the question of a retrial under the new law back to the Trial Courts. [96]

 Because the basic facts are little questioned and the case explores differences between extrinsic and intrinsic fraud, other state Supreme Courts including Iowa [97] and Tennessee [98] have cited "parker v. parker" when writing opinions of their own for paternity fraud type cases.

New Mexico, Barreras v. Trevino
[edit]

 Mr. Barreras and Ms. Trevino divorced in 1999 with Ms. Trevino shortly afterwards gaining a support order for her supposed daughter with Mr. Barreras named as the putative father. In 2004 a New Mexico court ruled that the child Mr. Barreras had up till then paid $20,000 support to Ms. Trevino for did not actually exist. [99] Mr. Barreras sued a DNA testing laboratory in 2006 for falsifying two separate DNA tests for the supposed child by using samples taken from his adult daughter who, along with one of the lab employees, also face fraud charges. [100] Ms. Trevino pleaded guilty in 2008 to charges of fraud and perjury facing twenty-one years prison after already serving federal prison time in Arizona for claiming the non-existent girl on tax returns. [101]

 As part of the paternity fraud Ms. Trevino was able to obtain a birth certificate, medicare card and social security card for the fictitious girl prompting (then) Gov. Bill Richardson to direct New Mexico Department of Human Services to explain how several government agencies became not only unwitting partners in the fraud, but also resisted efforts to correct it. [102] Letters and calls from Mr. Barreras to the New Mexico child support agency about his vasectomy in 1998 were ignored and when the child support enforcement division's order to bring the supposed child in for more paternity tests were not complied with by Ms. Trevino the agency simply closed the case without further investigation. [103]

Tennessee, Hodge v. Craig
[edit]

 In October, 2012 intentional misrepresentation of paternity was recognized by a unanimous Tennessee Supreme Court in Hodge v. Craig, a case where the mother intentionally lied to a man about who the father of the child was. Based on the mother's assurances the couple married but later divorced. The plaintiff dutifully paid child support including medical insurance for the child. Based on physical differences between himself and the child the he obtained a tissue sample and confirmed his suspicions. Damages were awarded in compensation for child support paid for 15 years.[104] The court's decision was based on the common law remedy of intentional misrepresentation; the court distinguished the award of damages from a retroactive modification of child support. The action was for damages; it was not a suit to disestablish paternity.[105]

Other Cases

[edit]
South Korea
[edit]

 In 2004 a South Korean man was awarded $42,380 compensation for pain and suffering when a DNA test showed that his ex-wife's paternity claim regarding their child was false. When Mr. Doe, who had married Ms. Doe based on her paternity claim, started a lawsuit against a hospital for switching his child at birth Ms. Doe confessed to having been pregnant with another man's baby. [106][107]

Spain
[edit]

 A Court in Valencia, southeastern Spain, ruled in favor of Mr. Doe awarding him €100,000 in "moral" damages after a DNA test showed that after fourteen years of marriage only one of his three children had actually been fathered by him. The ruling was then appealed by Ms. Doe with the Spanish Supreme Court, who in early 2009 increased the amount and ordered Ms. Doe to pay Mr. Doe €200,000 in damages. The judges noted Ms. Doe had, “acted negligently in the conception of her children”, and the concealment of the truth “only added to the pain caused to the husband” who should be compensated correctly.[108] [109]

References

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  101. ^ Clip, TV News (1 August 2008). "Trevino pleads guilty to fraud, perjury". Clips Syndicate. NBC News, USA.
  102. ^ McElroy, Wendy (17 December 2004). "Agency Culpable in Child Support Scam". Fox News. New Mexico, United States.
  103. ^ Carlson, Carolyn (12 December 2004). "Ex-husband Paid $20,000 To Support Nonexistent Daughter". ABQ Journal. Albuquerque, New Mexico.
  104. ^ Joanna L. Grossman (October 16, 2012). "When Your Daddy Is Not Really Your Daddy: A Man Successfully Sues His Ex-Wife for Paternity Fraud Damages". Justia.Com. Retrieved October 16, 2012.
  105. ^ "Tina Marie Hodge v. Chadwick Craig M2009-00930-SC-R11-CV". Tennessee State Courts. October 1, 2012. Retrieved October 16, 2012.
  106. ^ Archive, News (1 June 2004). "Court:woman must pay husband for baby". Associated Press. South Korea. {{cite news}}: |first= has generic name (help)
  107. ^ Bernbaum, Brian (11 February 2009). "Woman Ordered To Pay For Having Another Man's Baby". CBS News. South Korea.
  108. ^ Smith, Graham (18 February 2009). "Adulterous woman ordered to pay husband £177,000 in moral damages". Daily Mail. Spain.
  109. ^ Topics, News (18 February 2009). "Adulterous Spanish woman told to pay husband €200,000 in damages". The Telegraph. Spain. {{cite news}}: |first= has generic name (help)

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Main article: Paternity fraud
  1. ^ "Paternity fraud rampant in the U.S." WND News. United States. 2 February 2006.
  2. ^ Karvelas, Patricia (16 November 2006). "Push for fathers' right to DNA test". The Australian. Australia.
  3. ^ Grant McArthur, Kelvin Bissett (12 November 2008). "DNA traps mums' lies". News Digital Media. Australia.

Fathers' Rights Movement in the United States

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Main article: Fathers' rights movement in the United States

The Fathers' rights movement in the United States traces its roots to divorce and alimony controversies in the early 1900s. Today, the modern father's rights movement generally focuses on issues regarding shared parenting while providing support and public awareness for fathers and children after a divorce or separation.

Different fathers' rights organizations may also advocate for non-married fathers' rights through lobbying efforts or news media outlets. Other advocacy topics include gender bias, both culturally and from within the legal system, visitation, adoption, maternal gatekeeping and parental alienation.

History

[edit]

 Organized divorce reform was largely an import to the U.S. from the United Kingdom where in 1906 two small groups, "The Society for Promoting Reforms in the Marriage and Divorce Laws of England" and the "Divorce Law Reform Association" merged to form the "Divorce Law Reform Union". [1] Author and political activist Sir Arthur Conan Doyle was the first president of the newly formed organization, [2] [3] a post he held for 10 years. These early groups were actually formed to advocate for oppressed women who at this time lacked a political voice or the vote. [4]

 The fathers' rights movement in the United States during the 1800s on through the turn of the century consisted of small groups scattered about focused on divorce and alimony reform [5] or created in reaction to popular scams of the day such as the "Heart Balm Racket" [6] or the "Badger game". By the early 1900s several groups had been founded including the "Society of Disgruntled Alimony Payers", "New York Alimony Club" and "The Alimony Payers Protective Association". The merger of two such groups formed the "National Divorce Reform League" with advocate Dr. Alexander Dallek as its first president [7] [8] boasting a membership of 22,000 in 1939. [9]

 The modern fathers’ rights movement in the U.S. is often associated with the founding of "Divorce Racket Busters" in California during 1960 that soon shortened its name to "Divorce Reform" in 1961. [10] By the 1980s there were a total of more than 200 such organizations active in almost every state. [11] Several unsuccessful efforts have been made to found a single organization to which all organizations could belong resulting in the movement remaining a loose coalition of national and state groups.

State Laws

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There is no standard definition for the word "father" in statutes across the United States. Five States [12] as well as the District of Columbia, American Samoa, and the U.S. Virgin Islands provide no definitions for the term at all. [13] Many States however do have definitions for the various categories of unwed fathers with the term "putative father" being defined by statute in 12 States. [14]

Heart Balm Racket 1935 Indiana ** Heart Balm Racket, Spokesman Review 1935 ** Paid (1930 film)

  1. ^ Hynes, Samuel (1968). "Edwardian Turn Of Mind". Random House Publisher. Google Books.
  2. ^ Miller, Russel (2008). "The Adventures of Arthur Conan Doyle: A Biography". St. Martin's Press. p. 279.{{cite news}}: CS1 maint: location (link)
  3. ^ Peterman, Peggy (10 August 1982). "A Father Crusades for Equity". St. Petersburg Times. Florida, USA.
  4. ^ Writer, Staff (11 July 1913). "Divorce Reform Law". Votes for Women. England.
  5. ^ Keating, Isabelle (7 March 1929). "Verbal Free-for-All by Alimoaners, Rebukes, Gold-Diggers and Judges" (PDF). The Brooklyn Daily Eagle. New York, NY.
  6. ^ Norris, Kathleen (2 June 1935). "The Blight of the Heart Balm Racket". The Milwaukee Journal. Milwaukee, Wisconsin.
  7. ^ Ross, George (5 Nov 1936). "In New York, Alimony Hotels". The Evening Independent. St. Petersburg, Florida.
  8. ^ writer, staff (3 Nov 1939). "Propose Alimony for Men". Ottawa Citizen. Ottawa, ONT.
  9. ^ Cite error: The named reference news.google.com was invoked but never defined (see the help page).
  10. ^ Williams, Gwyneth I (2002). "Fathers' Rights Movement". Historical and Multicultural Encyclopedia of Women's Reproductive Rights in the United States. Greenwood Press. pp. 81–83. ISBN 978-0-313-30644-0.
  11. ^ Clatterbaugh, Kenneth (1997). Contemporary Perspectives on Masculinity. Westview Press. p. 70. ISBN 978-0-8133-2701-3.
  12. ^ "as of 2010, Arizona, Nebraska, New York, North Carolina, and Virginia".
  13. ^ Child Welfare, Information Gateway (30 June 2010). "The Rights of Unmarried Fathers". U.S. Department of Health and Human Services. States' Definitions of Father. {{cite news}}: External link in |location= (help)CS1 maint: location (link)
  14. ^ "as of 2010, Arkansas, Florida, Indiana, Iowa, Maine, Montana, Nevada, Ohio, Oklahoma, South Dakota, West Virginia, and Wyoming".

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Main article: Putative father registry
  • Putative father registry
    • Caban v. Mohammed, 441 U.S. 380, 99 S. Ct. 1760, 60 L. Ed. 2d 297 (1979) The Supreme Court ruled that a law depriving all unwed fathers of the right to decide against adoption, whether or not they actually took care of the children in question, was unconstitutional and a form of sex discrimination.

References

Family law
Family
Marriage and other
equivalent or similar unions and status
Validity of marriages
Dissolution of marriages
Other issues
Private international law
Family and criminal code
(or criminal law)

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