The Philadelphia Inquirer

Posted on Mon, Dec. 23, 2002

Men seek 'paternity fraud' law

Many must pay support for children who aren't theirs. A N.J. bill up for a vote would change that.

By Kathy Boccella
Inquirer Staff Writer
The Philadelphia Inquirer

Patrick McCarthy founded New Jersey Citizens Against Paternity Fraud after he found out that he still had to pay for child support, even though his teen daughter was not biologically his. Photographs by David M Warren, Inquirer Suburban Staff.

Patrick McCarthy was floored to learn after his divorce that his 14-year-old daughter had been fathered by another man. He was even more stunned to find out that he would still have to pay $280 a month in child support.

"You have to be a stone not to react emotionally to something like that," said McCarthy, 41, a delivery service driver from Hillsborough, N.J. "The thing I found more disturbing was the way they treat you in court."

In New Jersey, as in most other states, children born during a marriage are the legal responsibility of the husband - even if he isn't the biological father.

Now some of these "duped dads," as they call themselves, are waging state-by-state battles to institute "paternity fraud" laws. Fueled by anger and raw emotion, they are forming grassroots groups and pressing for the right to use DNA evidence in court to be free of making support payments for children they didn't father.

New Jersey Citizens Against Paternity Fraud, which McCarthy founded, recently paid $50,000 for nine billboards along highways (and other ads) that show a pregnant woman and read "Is It Yours? If Not, You Still Have to Pay!"

"Why does a man who is not the father have to bear the financial responsibility for fraud?" asked New Jersey Assemblyman Neil Cohen (D., Union), who sponsored legislation allowing men to use DNA tests to disprove paternity and end financial support. The bill recently came out of committee and faces a vote from the Assembly.

But women's groups and child advocates are alarmed by a trend that they say could harm children.

"It's not as simple as, 'This isn't fair, I have to pay for somebody else's kid,' " said Valerie Ackerman, staff lawyer at the National Center for Youth Law in Oakland, Calif. "Families are much more than biology."

It is not known how many men would try to disprove paternity in court, even if they could. An American Association of Blood Bank survey in 2000 of 30,626 paternity tests showed that 30 percent of those taking the tests were not the real fathers.

What is clear is that the law is not on their side. Most states require nonbiological fathers to keep paying child support even if they were deceived by their spouses, based on the 500-year-old legal presumption that any child born during a marriage is the husband's.

For unmarried fathers, if the paternity is not challenged at birth, they generally do not get a second chance to raise the issue.

But more and more states are reshaping these laws. Men have won the right by legislation or case law to use genetic testing to disprove paternity in 12 states. Three more, including New Jersey, have pending legislation that let nonbiological fathers off the hook.

Since 1999, Pennsylvania lawmakers twice turned down similar legislation, introduced after a Reading man, Gerald Miscovich, sought relief from the $537 a month he was paying for a child who was not his. He lost the case and ended all contact with the then-4-year-old boy. Sen. Michael A. O'Pake (D., Reading) plans to reintroduce the bill next month.

Carnell Smith of Decatur, Ga., is one of two men who appealed to the U.S. Supreme Court after lower courts ruled against them. Smith is trying to recoup more than $40,000 from his ex-girlfriend after learning three years ago that her 13-year-old girl is not his. But the Supreme Court declined to hear his case, meaning he must continue to pay $750 a month in child support.

"It's not a gender war from my perspective. It's about truth," said Smith, who founded U.S. Citizens Against Paternity Fraud. His group - whose slogan is "If the genes don't fit, you must acquit" - lobbied for the law that Georgia Gov. Roy Barnes signed in May.

Others have not been swayed. In October, California Gov. Gray Davis vetoed a paternity fraud bill, saying the measure would only delay child support collection and let some biological fathers wriggle out of parental responsibility.

Child advocates agree. They worry that children will be traumatized by losing the emotional and financial support of the person they know as "Dad."

"I would think if there's a close parent-child relationship, then the matter of whose DNA the child is carrying wouldn't matter that much," said Laura Morgan, chairwoman of the American Bar Association's Child Support Committee. "It's too easily reducing parentage to dollars and DNA."

In many cases, a man suspects a child is not his and chooses to raise the child anyway, said Paula Roberts, a lawyer at the Center for Law and Social Policy in Washington. But after a divorce "he has a new wife and she's saying, 'Why are we paying for this kid?' Now he wants out," she said.

"What kind of damage have we done to the kids if the person they know as their father wants out?"

Some of the new statutes give fathers two years to contest paternity. Men say such deadlines are unfair because women can sue to establish paternity at any time in a child's life.

But Ackerman, with the youth law center, said "you give a person unlimited time to establish paternity, it leaves a child in limbo their entire lives."

Those pressing for the new laws say they do not anticipate wide-scale child abandonment. Cohen, a lawyer who has represented both men and women in these types of cases, said that "when [fathers] have a relationship with their son or daughter, they don't necessarily walk away from the child. They just don't want to have the financial responsibility."

But he has also seen men who were "so angry and upset over being lied to, they walk away," he said.

These non-dads, who network via e-mail and compare hard-luck stories, say the issue goes beyond monthly child support checks.

"To not allow DNA testing is not allowing the truth to come forward," said McCarthy, who would like to see every child's DNA tested at birth to prevent mix-ups. "My contention is every child has a right to know who their biological parents are."

Even though McCarthy's daughter looked nothing like him, he never suspected she was not his until his ex-wife blurted it out during an argument, he said. He used a home DNA kit and a cheek swab to confirm there was virtually no chance the girl was his.

With no legal standing, he continued supporting her and began lobbying for a change in the law. Though their relationship is strained, the girl, now 19, still calls him "Dad," said McCarthy, who lives with his second wife and their two children.

What really galls these men "is the fact that you have to pay support to an ex-wife who lied to you and deceived you," McCarthy said. (Like some other men in the movement, he declined to provide information about his ex-wife.)

One man who would greatly benefit from the new laws is Morgan Wise, of Big Spring, Texas. A train engineer, he was married for 13 years to a woman who had four children. The youngest had cystic fibrosis. After he divorced in 1996, he said, he took a test to see which cystic fibrosis gene he carried.

No such gene was found. DNA testing showed that three of the four children were not his.

"I cried. I got angry, not toward the children but toward my wife," he said.

His wife, Wanda Scroggins, said that he knew "there was a possibility" the children weren't his. She said they both had affairs during their marriage and he agreed to raise the children as his own.

They also agreed to keep the truth to themselves, but Wise told the children one day while they were at school. It cost him visitation rights for two years.

In another blow, a Texas court ruled that he still had to pay $1,100 a month in child support. In January, the U.S Supreme Court refused to hear his appeal.

Recently, Wise began spending time again with the children, but the relationship is rocky.

"If it's your kid, no matter who the biological father is, how does that matter?" Scroggins asked. "He was there when they were born, he changed their diapers, saw their first steps, kissed their boo-boos. How do you just stop that?"

© 2001 philly and wire service sources.