Paternity: Innocence Is Now a Defense

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On
June 30, a California man being forced to pay child support for
children he had not fathered got his day in court when the Second
District Court of Appeal of California overturned a paternity judgment
against him.

Los
Angeles County, which had imposed the judgment, knew that Manuel
Navarro was not the father of the children in question because DNA
testing had proved so. Yet under both federal and state child-support
laws, the county was still able to demand Navarro pay child support.

The
court's landmark decision in Navarro's favor may well become the
controlling authority for contested paternity in California and
a legal precedent nationwide.

Navarro's
case is typical of the false paternity claims and child-support
laws that prompt men's-rights activists to condemn the family-court
system as being virulently unfair to men.

When
an unwed mother applies for welfare in California, the Department
of Child Support Services routinely requires her to name the father(s)
of her children.

The
information provided is often incomplete. Moreover, even though
the mother signs a declaration under penalty of perjury, false declarations
go unpunished.

In
March 1996, Los Angeles County filed a complaint to establish the
paternity and child-support obligations of a "Manuel Nava"
who had been named as the father of two boys receiving public assistance.

Based
on the information the mother provided, authorities determined that
Navarro was the father in question and served him with a complaint.

The
county says it made "substitute service" of its complaint
by leaving a copy of the summons with "Jane Doe," who
was identified as Navarro's "sister" and "co-tenant."
Another copy was sent by first-class mail.

The
complaint would have asked Navarro to file a written denial of paternity
within 30 days, as mandated by federal law. Otherwise, fatherhood
would be presumed.

Navarro
did not respond to the complaint within the 30-day time period – he
claims he never received it.

In
July 1996, a court judgment established Navarro's paternity and
ordered $247 a month in child-support payments.

Penalties
for evading child-support payments can include the inability to
obtain a driver's license and other business or professional "licenses"
such as teaching credentials.

Credit
ratings can also be ruined and the State Department may refuse to
issue the "deadbeat dad" a passport. Thus, even if the
court-ordered support is not garnished from wages, falsely named
fathers have powerful incentives to pay up.

In
July 2001, Navarro filed a motion to set aside the court's judgment
because a blood test proved he was not the boys' father. Although
both the federal and state "challenge periods" had long
passed, he argued that the mother had committed fraud by naming
him.

He
also claimed to have never received the original complaint or default
judgment. The court denied the motion.

Navarro's
case is not unique. For example, in California, in serving child-support
judgments, "substitute service," rather than "personal
service," is a common practice.

A
March, 2003 study prepared at the request of DCSS, "Examining
Child Support Arrears in California," found that most complaints
in California are delivered by substitute service, "which suggests
that noncustodial parents may not know that they have been served."

"In
Los Angeles County in 2000 … 79 percent of paternity judgments
were decreed by default," father's-rights advocate Glenn Sacks
explains. "Most of these men had no idea they were u2018fathers'
until their wages were garnished."

In
an article entitled "Injustice by Default: How the effort to
catch u2018deadbeat dads' ruins innocent men's lives," journalist
Matt Welch asked California DCSS Assistant Director Leora Gerhenzon
what would happen if a woman had named "Matt Welch" – a
white guy between 30 and 40 years old, who maybe lives in the Los
Angeles area – as the father of her child.

Gerhenzon
answered, "We run our search on him; if we come back with one
Matt Welch who lives in L.A., whose birthday fits that 10-year range,
and we have nobody else, we presume in general we have the person."

The
argument could be made that current laws encourage false-paternity
claims. To receive federal funds on child-support orders, states
must name the fathers of the children on assistance. Since there
is no federal requirement for DNA testing for paternity, there is
no state requirement.

Indeed,
father's-rights advocates argue that there is an incentive for states
to bypass costly testing which might rule out fatherhood. In 2002,
former California Gov. Gray Davis admitted that $40 million in federal
funds could be jeopardized by widespread paternity challenges.

For
this reason, among others, in 2002 Davis vetoed the California Paternity
Justice Act, (AB 2240), which would have extended the challenge
period and vacated judgments against falsely named "fathers."
Women who knowingly signed false declarations of paternity would
have been liable for criminal prosecution.

(Another
factor in Davis' veto was the political pressure of groups like
the National Organization of Women, who successfully argued that
passing the act would harm children who might lose support payments.)

In
hearing Navarro's appeal, the Second District Court acknowledged
that "by strict application of the law, appellant should be
denied relief … Sometimes even more important policies than the
finality of judgments are at stake, however."

The
appeals court explained, "the County … should not enforce
child-support judgments it knows to be unfounded. And in particular,
it should not ask the courts to assist it in doing so. Despite the
Legislature's clear directive that child-support agencies not pursue
mistaken child-support actions, the County persists in asking that
we do so. We will not sully our hands by participating in an unjust,
and factually unfounded, result. We say no to the County, and we
reverse."

How
many falsely named "fathers" could this decision affect?

A
study by the American Association of Blood Banks found that "the
overall exclusion rate [of paternity on tested men] for 1999 was
28.2 percent for accredited labs."

That
figure is undoubtedly higher than what would be found in a random
sample of the general population, as men who request tests already
have reason to question paternity.

No
one knows the real number. What is clear is that courts across North
America must follow the Second District Court's lead and exonerate
men from false paternity claims.

July
15, 2004

Wendy
McElroy is author of The
Reasonable Woman
.
See more of her work at ifeminists.com
and at her personal website.

Wendy
McElroy Archives

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