Paternity Case Marks Progress for Defrauded Fathers

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On
Aug. 31, a small but precedent-setting
case
was decided in the Superior Court of New Jersey. The plaintiff
discovered he was not the biological father of his eldest ‘son’,
now in his 30s. The court affirmed the duped dad’s legal right to
sue the natural father for the cost of raising the ‘child’ and removed
some limitations imposed by a lower court.

The
precedent: for the first time, New Jersey has extended a clear statutory
deadline for filing on paternity cases. For the first time, a biological
parent may be forced to pay child support for an offspring emancipated
over 15 years ago.

The
significance: family courts are beginning to reflect a growing impatience
with paternity fraud; perhaps this is in reaction to a shift in
societal attitudes.

Predictably,
the pathbreaking New Jersey decision raises more questions. For
example, if a deliberate fraud was perpetrated for 30 years by both
the biological mother and father, why is only the father held liable?

The
answer – right or wrong – lies in the facts
of the case
, which are as follows.

In
1957, RAC – the duped dad – and BEC were married; in 1980, they
divorced. Three children resulted, including DC born in 1969. (Court
documents reveal the parties only through initials.)

The
mother was “virtually sure” that PJS was DC’s father but she did
not disclose this to her husband. Instead, PJS became the child’s
godfather. Upon divorce, RAC fulfilled the obligations of both child
support and educational expenses for DC, all the while maintaining
a close, loving relationship with the three children.

In
1996, DC – then 27-years-old – was about to wed. The mother revealed
her paternity fraud to DC because his natural father had a pronounced
family history of muscular dystrophy, a condition which could be
genetically transmitted. She promised to inform RAC of the deception
but waited three additional years to do so.

In
September 2000, the sadly-enlightened RAC filed a complaint against
PJS, which also named the mother and included a demand for DNA testing.
PJS was the biological father and a judgment of paternity was entered
against him in June 2002.

In
February 2003, RAC was awarded $109,697 for child support reimbursement
up to DC’s 22nd birthday. The reimbursement excluded legal expenses
and money spent on DC’s education between the ages of 22 and 25.

The
judge also dismissed RAC’s claim for “fraudulent concealment and
intentional infliction of emotional distress.” This effectively
barred a cross-complaint against the mother.

RAC
appealed.

PJS
countered with a technicality, albeit an important one. The time
limit for initiating a paternity fraud suit had expired under New
Jersey’s Parentage Act
before RAC had brought the original suit.
The relevant passage
states
, “No action shall be brought under [the Parentage Act]
more than five years after the child attains the age of majority.”

Thus
PJS claimed RAC’s suit was invalid. RAC answered that information
on paternity was concealed until the time limit had expired. In
other words, PJS and the mother had “conspired” to prevent the very
possibility of a legal remedy.

The
Superior Court agreed with RAC…but only so far. The deadline for
filing was waived. The Superior Court fell back on the intention
of the Parentage Act rather than its specific wording. The Act was
not intended to facilitate fraud; thus, the court extended the principle
of “equitable
tolling”
to paternity fraud.

This
principle states, “a statute of limitations will not bar a claim
if despite use of due diligence the plaintiff did not or could not
discover the injury until after the expiration of the limitations
period.”

The
claim for legal fees was sent back to the lower court for reconsideration.
But the claims of “fraudulent concealment” and “emotional distress”
were denied, as was the filing of action against the mother.

Why
was the mother exempted? The court found, “BEC owed plaintiff nothing
for the support of DC” because she had also paid her fair share.
Moreover, “the act of adultery…does not violate any law” and was
mitigated by the joy and benefit “plaintiff enjoyed from the love
and affection” of the “child he thought was his.”

I
am uncomfortable with this reasoning.

Adultery
is not and should not be against the law; consenting adults have
an absolute right to have sex together without government interference.
The sexual act may be immoral or otherwise unsavory but it should
not be illegal.

But
making an innocent third party legally and financially responsible
for the consequences of that sex act is an entirely different matter.
And the mother must have perjured herself on several legal documents
during the divorce and child settlement arrangements when she attested
to RAC’s fatherhood.

At
least two questions bear on whether the mother should be liable.
The first: should the law intrude into family matters? The second:
if the law becomes involved, should fraud be tolerated?

My
ideal society includes explicit contracts into which people voluntarily
enter before becoming parents; DNA testing might be a standard provision.
The law (or other third party) would become involved only as an
arbiter of disputes or as a rescuer in cases of physical abuse.

That
society doesn’t exist. People resist parental contracts and the
law inevitably becomes involved in competing claims over children.

And,
when a legal proceeding occurs, intentional fraud should be punished.
BEC – along with the natural father – committed intentional fraud.

The
New Jersey decision is beneficial in granting increased recognition
to the plight of paternity fraud. But an obvious problem remains.
Two people committed fraud. Only one of them bears any liability.

September
8, 2005

Wendy
McElroy [send her mail]
is the editor of ifeminists.com
and a research fellow for The
Independent Institute
in Oakland, Calif. She is the author and
editor of many books and articles, including the new book, Liberty
for Women: Freedom and Feminism in the 21st Century

(Ivan R. Dee/Independent Institute, 2002).

Wendy
McElroy Archives

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