YES: If DNA is used to free death-row inmates, we should accept it in paternity cases

By Dianna Thompson

In recent years our nation's courts have come to accept DNA evidence as absolute proof of innocence.

 For example, genetic evidence has been used to free death-row inmates and to exonerate individuals wrongly convicted of rape and other crimes. Even so, courts have been slow to accept DNA as proof when a man contends he should not have to pay child support for a child that is not his.

State legislators have sought to ease the financial burden of welfare payments by demanding that aid recipients name the fathers of their children. Laws that once sought to distribute welfare payments by collecting money from former spouses and lovers have been manipulated into tools for extorting child-support payments from men who did not father the children.

For centuries, courts followed a rule known as the "presumption of paternity." This tenet of common law states that unless a man can prove that he is sterile, impotent, or was away from home at the time of conception, he is the legal father of any child born to his wife during their marriage. The Romans first adopted this rule, and the English incorporated it into common law some 500 years ago.

Despite scientific advances and case law that supports the use of DNA tests as evidence in exonerating the accused, the presumption of paternity remains in practice even today. Because of this, courts have allowed mothers to commit perjury, assigning paternity to former spouses or, in the cases of those never married, former lovers.

Because none of the 50 states requires a mother who files a claim for child support to advise the court or child-support agencies when another man potentially could be the father, thousands of men are paying support for children who may not be their own. This deception has come to be known in legal circles as "paternity fraud."

Many states have opted to look the other way when it comes to adopting legislation against this type of deception. Only two states have instituted legislation that allows men unlimited time to challenge paternity using DNA testing: Maryland, which passed legislation in 1995, and Ohio, which passed its bill in 2000. The Georgia Legislature recently passed a paternity-fraud bill that now awaits the governor's signature.

Several states, including California and Colorado, have similar legislative proposals that would address this growing problem. The California Paternity Justice Act of 2002 (AB 2240) would require DNA testing in cases of disputed paternity. Other states have addressed this problem by limiting paternity challenges: Iowa allows a maximum of three years for such challenges, Colorado allows five years and Louisiana 10 years.

Alaska requires that unwed parents establish paternity through genetic testing. In doing so, child-support orders are issued only to biological fathers. Even so, Alaska remains the only state with such legislation.

Los Angeles County fails abysmally at ensuring that only men who fathered a child may be required to pay that child's support. In 2000 alone, more than 79 percent of the county's paternity judgments were assigned by default, meaning that the suspected father never had his day in court.

Many of the men assigned default judgments for child support never received summonses to appear in court. Because of the prevalence of default judgments, men who have not fathered a child can turn into "dads" instantly when the court enters a default judgment.

Once applied, that label is difficult, if not impossible, to remove. State agencies and district attorneys frequently fight such appeals, challenging anyone who fails to respond to a court summons ? even one served to a "last-known" address. This aggressive pursuit of assigning paternity at any cost has ensnared thousands of innocent men mistakenly identified as having fathered children who do not belong to them.

The prevalence of paternity fraud has reached startling proportions.

As many as 28 to 30 percent of men tested for paternity learn they are not biologically related to the children they allegedly fathered, according to the American Association of Blood Banks.

The high incidence of default paternity judgments can be tied to economic motives: More than 11 million fathers do not live with their children. Nationwide, child-support collections have grown to more than $18 billion annually. State legislatures long have sought to offset the financial drain of welfare payments made to single mothers by identifying biological fathers who do not live with their children.

State child-support agencies receive federal reimbursements of two-thirds of their administrative budgets, in addition to incentives of 6 to 10 percent for each dollar of child support collected. Under federal guidelines, states must identify the fathers of children whose mothers are receiving welfare benefits or risk losing incentive monies.

Federal guidelines also encourage aggressive collection efforts by allowing states to retain the cost of welfare benefits from child-support payments made by the noncustodial parent. Because federal rules do not require DNA testing to prove paternity, states have no incentive to investigate claims of fraud and every reason to fight efforts to disestablish paternity.

Private child-support agencies have similar motives in refusing to acknowledge DNA evidence disproving paternity. Mothers routinely contact private agencies in an attempt to collect past-due court-ordered child support. In enforcing court orders, these agencies routinely collect 30 percent of the past-due amount, in addition to 30 percent of all future payments. Because these agencies enforce court orders, they have no reason to cease collection efforts once presented with DNA evidence refuting paternity.

The true impact of paternity fraud goes far beyond the dollars collected from men who are not fathers, however.

For children facing life-threatening illnesses, such as cancers requiring bone-marrow transplants or other medical emergencies, knowing one's biological heritage can be a matter of life or death.

While courts acknowledge and rightfully respect the confidentiality of adoptive parents, the practice of assigning paternity to uninformed and unrelated individuals goes beyond fraud ? it potentially places the lives of children in danger.

Some argue that demanding accuracy in determinations of fatherhood would harm children who have established relationships with men they believe to be their fathers.

Make no mistake: In most cases of paternity fraud, the children have never even met the supposed father. Furthermore, court proceedings for assigning fatherhood do not seek to establish a relationship between a parent and a child. Instead, paternity hearings seek to establish only a financial obligation on the part of the alleged father to the child.

Because states refuse to prosecute mothers who make false claims about their child's paternity, countless men are forced to spend thousands of dollars to clear their names while also supporting children fathered by others. Consider the following cases:

The Sonoma County, Calif., district attorney refused to rescind a child-support order against Nick Napoli despite DNA testing that proved he did not father the two children assigned him by court order. The district attorney's office told Napoli that even if they had proof he wasn't the father, they could not reassign paternity without the mother's consent. Napoli now owes $19,180 in back child support for the children.

Dylan Davis of Denver learned that 6-year-old twin children were not his following his divorce. Because Colorado allows only five years for challenges to paternity findings, Davis now must pay a total of $145,000 in child support through the twins' 19th birthdays.

In June 2000, California's 4th District Court of Appeals ruled that Darin Reeves of Rancho Santa Margarita would have to continue paying child support for a child he did not father. Since 1995, Reeves has paid more than $51,000 in child support and welfare reimbursements, in addition to $11,000 in legal fees that he has spent fighting the finding of paternity.

Dennis Caron of Ohio was jailed for 30 days for refusing to pay child support for a child that DNA tests show is not his.

Even the ultra wealthy are not exempt, as MGM mogul Kirk Kerkorian learned when his ex-wife, Lisa, filed court papers asking for $320,000 a month in child support, despite DNA evidence proving Kerkorian is not the father of her child. Kerkorian's ex-wife claimed that he knew of her infidelity and went along with it to improve his public image.

Interestingly, women from a variety of financial backgrounds provide fraudulent information regarding their children's paternity. Who they name as the father oftentimes depends on their marital status.

Married women most often name the men who were their husbands at the time of conception, fulfilling a societal expectation of monogamy. However, unmarried women who have multiple intimate partners most often name the men who will best provide financially for their children. In some cases, mothers will implicate men whom they believe will fill the role of a father to their children.

When courts allow mothers to pick and choose who will be financially responsible for their children, regardless of true parentage, fraud will prevail. When the truth no longer matters, state agencies tend to decide they have no obligation to seek out biological fathers and refuse to acknowledge DNA evidence disproving paternity.

Yet society long has acknowledged the connection between biological parents and their children. Courts have returned children who were switched at birth to their biological parents after years of living with the wrong parents. In 1972, the U.S. Supreme Court acknowledged in Stanley v. Illinois the right of biological parents to raise their children. Failure to recognize DNA testing denies a child's true father his constitutional right to be involved in his child's life.

Without a doubt, we are a nation in need of fathers. However, fatherhood is a consensual act made by men who choose to have intimate relations or elect to adopt children. It is not a decision that can be made by courts that arbitrarily place financial responsibility for children on unrelated and unwilling men.

The children are the real victims in paternity fraud. They deserve better than to have their support paid by extortion. Honoring the truth serves the best interests of the children and the community as a whole.

If courts have concerns about who will pay for a child's upbringing, they should implore mothers to tell the truth about their children's paternity. If courts believe that men should act as fathers to unrelated children, they should appeal to their compassion, not their pocketbooks.

Thompson, a nationally recognized expert on families and divorce-related issues, serves as executive director of the American Coalition for Fathers and Children. She may be reached by e-mail at dthompson2232 (at) aol dot com.