Star Tribune (Minneapolis - St. Paul)

Published 12/30/2002

DNA tests mean more in deciding who's dad, some say

Pam Louwagie
Star Tribune

For more than five years, the St. Paul man assumed the child born to his girlfriend in the midst of their relationship was his own. He treated the boy as his son, even though the couple wasn't together two years ago, and he agreed then to a court order that he was the father.

But last year he got a genetic test that said he wasn't. He now feels he shouldn't be legally deemed dad and shouldn't be required to pay child support, his attorney said.

In many states, including Minnesota, such a revelation hasn't mattered once a man has developed a relationship with the child and a court has decided he's the legal father. But a state Court of Appeals decision in this case may be a sign of change, some attorneys said.

The court sent the case back to Ramsey County District Court to be reconsidered.

The court said the best interests of the child shouldn't be a factor in this instance.

The ruling has some family law attorneys thinking that courts are giving genetics more prominence in paternity cases. And it has prompted Ramsey County Attorney Susan Gaertner to consider asking for DNA tests any time an unmarried couple is in court to establish paternity -- even if the assumed father is willing to waive the test.

"I see this decision as the beginning of what's going to have to be a very big-picture review of how the technology of DNA is going to affect how we determine who dad is," Gaertner said. "This is a huge issue that states across the country are grappling with."

Considerations

The St. Paul man, Lionel R. Suggs, claimed he was defrauded by the boy's mother, who has said he was the only possible father, according to court documents.

Like many unwed men who believe they are the father, Suggs waived a DNA test during a court proceeding to establish paternity.

His current attorney, John Westrick, said he advises clients to take the DNA test.

State laws give legal dads deadlines to question paternity. Westrick said his client made a challenge in time, though a lower court ruled it wasn't in the child's best interest to relieve him of legal fatherhood.

"I think this Court of Appeals decision makes it clear that if you're timely, genetics are going to trump," Westrick said. "I think everybody has recognized it's in the best interest of the child to know who their biological father is, except in the case of adoption."

Gaertner and Assistant Ramsey County Attorney Mark Ponsolle are considering whether they should allow men to waive the tests in paternity proceedings. Doing the test would cost about $200 each for about 1,500 cases in the county each year. Most of the cost would be reimbursed by the federal government.

"We're re-evaluating what we want to do. . . . Should we not take the mother's and father's word for it?" Ponsolle asked.

Husbands are presumed to be the father of their wife's child under the law, and Ponsolle said they aren't suggesting testing in those cases.

Though it seems a topic ripe for a Jerry Springer show, some family law attorneys say it's more common than people might think for men to find out that their children aren't biologically theirs.

"It happens enough that we've all got stories," said Nancy Zalusky Berg, referring to 10 attorneys in her firm who practice family law.

A 1999 study by the American Association of Blood Banks showed that, out of more than 280,000 tests for paternity at accredited labs in the United States -- most of them done in child support cases -- 28 percent excluded the man as the father.

A local case

Eric Demby Jr. of Brooklyn Park found out several years ago that he could be counted in that percentage.

Surrounded by joyous family in the hospital, Demby signed a declaration that he was the father when his girlfriend gave birth to a baby girl in August 1989.

He said recently that he and his mother took care of the girl several nights a week and often on weekends. The child was sweet, he said, "very talkative and smart and everything you'd want."

But his relationship with the mother soured a few years later, and she told him that he wasn't the father. A blood test confirmed it in early 1993.

The state Court of Appeals ruled that he should continue paying child support because he hadn't challenged his paternity before a three-year statute of limitations ran out.

"It was just unfair," Demby said. "It's like paying for a crime you didn't commit but someone else did."

Ramsey County settled the case and Demby dropped an appeal to the state Supreme Court, said his attorney, John Connelly.

Demby said he was always willing to do things to help the girl, to "be there for her." But he didn't feel it was fair to be indebted to the county, which sought his money to make up for the public assistance the girl's mother received.

He is no longer paying child support, and he no longer sees the girl. He still feels the effects.

The child, he said, "was not just a part of my life but was my life . . . someone I felt I would die for," said Demby, now 33. When contact with her stopped, "I was forced to view it as pretty much a death in the family," he said.

Striking balance

Balancing the interests of the child and the legally recognized father is a sticky issue, many attorneys acknowledge.

"One of the issues is stability for the child," Gaertner said. "In [the Suggs case], this is the only father the child has known . . . yet the DNA has definitively determined that he is not the biological father."

Gail Chang Bohr, an attorney and executive director of the Children's Law Center of Minnesota, said she believes that in the Suggs case, the Court of Appeals was "not going far enough to consider the interests of the child."

Bob Carrillo, director of communications for the group R-Kids of Minnesota, which stands for Remember Kids in Divorce Settlements, said he thinks the "best interest of the child" is used too often as a "catch-all for excuses."

"The best interest of the child ought to be the truth," Carrillo said. "Certainly if [men who thought they were dad] want to maintain a relationship with that child, that's fine . . . but why make them responsible economically when there's another father out there?"

Debate rages

It's a debate going on across the country, instigated mostly by men who feel duped and are waging public campaigns to change laws.

"There is a tremendous amount of interest in this," said Kay Cullen, communications director for the National Child Support Enforcement Association. Now that DNA testing has become more accurate and easier -- it only takes a mouth swab instead of blood -- paternity disestablishment has become a very hot topic, she said.

In Georgia, Carnell Smith won a change in the law that allows men to stop making child support payments if they learn that they're not the biological father. He found out in April 2000 that his former girlfriend's 11-year-old daughter wasn't his.

Now, he advocates testing all children when they're born, taking the pressure off parents too afraid to discuss the subject at an emotional time, he said.

"He says, 'I want a paternity test.' She hears, 'you're calling me a harlot,' " Smith said. "If you make the test mandatory, it's a decision that neither one of them has to make."

Legislatures in New Jersey and Michigan are looking at changing laws.

Deciding what makes a dad is a quandary many agree won't be settled soon.

Cases are raising "a very fundamental question of how far DNA is going to take the court system," said Robert Oliphant, a family law professor at William Mitchell College of Law in St. Paul.

As Gaertner said: "Is biology going to determine unequivocally who dad is under the law or are we going to continue to take into account other considerations?"

-- Pam Louwagie is at plouwagie@startribune.com.

© Copyright 2002 Star Tribune.