DNA shaking up child-support rightsBy Nicholas Riccardi [Nicholas Riccardi is a staff writer for the Los Angeles Times, a Tribune newspaper.]
Tribune staff reporters
30 June 2002
Advances in DNA testing have liberated convicts from Death Row and helped clear up scores of unsolved mysteries, but they have been slower to release men from obligations to pay child support in cases where the tests show they are not the biological father.
Instead of resolving some of those cases, DNA has plunged the area of child support and paternal obligation into complicated new debate over the law and issues as profound as what it means to be a father.
Bert Riddick's three children cram into one room in his brother-in-law's house in Carson because Riddick is required by a court order to pay child support for a girl he has never met and who is not his own. The result is that Riddick cannot afford to provide for his biological children. A similar order sent Dennis Caron to an Ohio jail for 30 days because he refused to pay child support for a boy who DNA tests showed was not his.
And in the case of Carnell Smith of Decatur, Ga., a $120,000 child-support bill for an ex-girlfriend's offspring who did not belong to him caused Smith to double-check the paternity of his wife's new baby with another DNA test.
"Ninety-nine point nine-nine-nine percent mine," Smith said proudly.
The three men share more than a legal dilemma. They belong to a loose-knit movement of fathers who are gradually reshaping child-support laws in state after state so that men who can prove they did not father children can avoid paying for them.
In doing so, they have raised new issues about the legal system's role in defining the rights and responsibilities of those men who are deemed fathers by the courts, only to have those rulings later challenged by new scientific evidence.
Illinois House Majority Leader Barbara Flynn Currie (D-Chicago) said she is not aware of any state legislation pending on the issue. She is not a fan of the current debate, arguing that fatherhood is about more than just chromosomes.
"The argument would be, here is someone who behaved like a father and later found out that, in reality, he is not. But that does not cut the bond that had developed between the father and the child," she said.
Gemma B. Allen, partner in the Chicago firm Ladden & Allen and a family law attorney for more than 20 years, said current Illinois law is ahead of the curve nationally. In Illinois, fathers can petition for release from child support if a DNA test rules them out as the father and if they file within the two-year statute of limitations. She said the issue is "a brewing volcano."
Science outpaces the law
"It's become a very hot issue in some other states without consideration, ultimately, to the children of America," she said. "There are some organizations and some people that foment divisiveness. It's sad that this is probably another issue which will be used to antagonize the sexes against each other."
"It's one of those things where the science has given us the ability to do something we maybe shouldn't do," said Paula Roberts of the Center for Law and Social Policy in Washington.
"What you're saying is that all a man is, in terms of a father to a child, is a sperm donor. ... We think that's really bad social policy."
The dilemma is created by legal tradition that holds that once a court has ruled that a man is the father of the child, the judgment must stand. If the man does not protest quickly enough, his only recourse is to pay support until the child turns 18.
The number of men affected could be large, especially because child-support orders often are entered without the man appearing in court.
California Assemblyman Roderick Wright (D-Los Angeles), author of a paternity-reform bill, cites statistics from a 1999 study by the American Association of Blood Banks. That study found that of 280,000 blood tests performed to determine the paternity of children, 30 percent excluded the subject tested as being the father.
"It ain't his baby and we know it ain't his baby and here we're hitting him for 60 percent of his salary," Wright said. "In any other area of law, if that happened, that would be fraud. We'd be going out and screaming bloody murder."
In some cases, courts can order children to submit blood or tissue samples for DNA testing, but rules regarding when and how those tests may be used vary from state to state.
"This is a clash between jurisprudence concepts rooted in English common law of a judgment being inviolate, versus 21st Century science that has shown, well, sometimes we were wrong," said Steven Eldred, a deputy district attorney in Fresno County's child-support office. "This is a hot issue. Every state is going to have to deal with this."
In Ohio, a child-support reform bill passed its legislature two years ago with only one dissenting vote.
"People just said, `Hey, gee, this is common sense,'" said Caron, a 45-year-old corporate recruiter who lives outside of Columbus and lobbied for the bill. "Why should some guy get the shaft like this when he isn't the father?"
After a protracted divorce and custody battle, Caron in 1997 found through DNA testing that he was not the child's father. After testifying before the Ohio legislature about the need for paternity reform, Caron was sentenced to 30 days in jail for refusing to pay child support. He was released when his ex-wife's new husband adopted the child.
Called upon to help others
The experience made him a child-support celebrity, and calls began coming in from desperate men. Caron said some congressmen have referred constituents to him for help. Caron's experience in Ohio gave Carnell Smith hope.
The 41-year-old engineer read about Caron on the Internet after becoming embroiled in his own child-support battle. For years, Smith said, he helped raise the daughter of a former girlfriend who had told him the child was his. But parishioners at his church advised him to demand a DNA test after the woman pressed him for child support.
In April 2000, Smith said, he was excluded as the father by a DNA test. But the judge ordered him to pay anyway. It was then that he took to the Internet, reasoning that there must be other men in his situation. He found Caron and obtained a copy of Ohio's legislation, which he carried to the home of his assemblyman in Decatur, Ga.
Georgia's law passed both houses of the legislature earlier this year. Smith, meanwhile, has started an online group to spread what he calls "anti-paternity fraud" statutes across the country.
"I've declared war on this issue," said Smith, estimating that he has spoken to nearly 1,000 people. "I want to make sure my son doesn't face this same system."
Both Smith and Caron had acted as the children's fathers before discovering that they had no biological connection and refusing to pay child support. That troubles many critics of the new statutes. They argue that being a father is more about acting as one than producing a genetic match.
"You cannot have guys who functioned as some kid's father for 12 years going in and saying, because of some test, all right, I'm off the hook," said attorney Jenny Skoble, director of the child-support project at the Harriet Buhai Center for Family Law in Los Angeles.
"Yes, for the guy who's acted as the father of a child for 12 years who finds out that he's not the dad, it's a drag to have to pay the child support. But it's more of a drag for the child to lose the only father he or she has ever known," she said.
Smith said child-support advocates such as Skoble miss the point.
"Once the problem has already happened, it's like throwing a cluster bomb in the room - everybody's going to be hurt," he said.
"But two people are walking away with no responsibility at all - the biological mother and the biological father. They had their fun, now they walk away."
In the summer of 2000, the Conference of Commissioners on Uniform State Laws, a non-profit group that proposes legislation to be adopted by states, wrestled with whether men who are not biological fathers should pay child support.
Roberts, of the Center for Law and Social Policy, said the group agonized over the issue. It ultimately concluded that after a child's second birthday, the harm of losing a father would outweigh the harm of a man paying to support a child who was not his own.
Agonizing for a solution
"We concluded there was always going to be a set of cases where, no matter how you came down, you were going to feel badly," Roberts said. "But if your focus was on the child, at the end of the day you decided the adults in this relationship are just going to have to suck it up."
Texas and West Virginia adopted laws modeled on the conference's recommendation, requiring that men have only two years after the birth of a child to challenge paternity in child-support cases, Roberts said. But other states, including Ohio, Maryland and Alabama, do not have limits on when a man can challenge a paternity judgment.
In California, Wright's legislation is being shaped to apply to men who never appeared in court to fight their child-support orders - sometimes because they were not properly served, a common problem in California child support - and only later discover that they are being billed for a child who is not their own.
In other words, the legislation is written to help men like Bert Riddick.
Riddick said he was just about to leave on a business trip in 1991 when he found out that an ex-girlfriend had named him as the father of her newborn child. His then-fiance had received the summons at their home and hid it in anger. Riddick went on his trip and missed the hearing.
When the district attorney's office began to garnish his wages, Riddick pleaded for relief but was told there was nothing he could do.
As the bills mounted, Riddick could not support his new, growing family. His car was repossessed. His new wife went on welfare after having their second child. They were evicted from the Torrance house they rented and moved in with the wife's brother. And Riddick began going from job to job, enjoying a full paycheck for a few weeks before the child-support office found he had new employment and began to garnish his wages.
After Riddick was featured in a Los Angeles Times series on problems with child support in Los Angeles, his phone began to ring. He became a fixture on television news magazine shows and assembled a list of other men in his circumstance. But he was unable to escape the child-support debt.
Learned of others on the Web
Last year he found out about Caron, Smith and others while searching the Internet. He contacted Wright, who has backed several fathers' rights bills. Riddick and two other activists secured a midsummer meeting with a key aide working on the California paternity-reform legislation.
"I know it's complicated," Riddick said of the issues. "The women's rights groups still have this thing where they start the speech with 'he best interests of the child.' My response to that is, the best interests of whose child? My children are suffering now."
Roberts acknowledged that, like many DNA cases, Riddick's is a tough one. Still, she said, the fault is his for missing that hearing 11 years ago.
"This is the ultimate Solomon's baby situation," Roberts said. "There is no way that someone is going to come out not feeling they've been wronged."
Copyright © 2002 Chicago Tribune.