Skip to comments.DNA Paternity Fraud Case To U.S. Supreme Court
Posted on 06/02/2002 2:09:08 AM PDT by RogerFGay
CHICAGO, IL - Carnell A. Smith is a father who is forced by court order to pay child support for another man's child. This child is neither his biological nor adopted child. Smith has tried to get the lower courts to overturn the child support order, but they have refused.
Carnell Smith is now asking the U.S. Supreme Court to hear his DNA "paternity fraud" case. Nationally renowned fathers' rights attorney and advocate, Jeffery M. Leving of Chicago, has filed an appearance with the high court to represent Smith.
Although this court ruling sounds unusual, it isn't. There are countless men who find themselves in Smith's situation.
Partially as a result of the availability of DNA paternity testing, men are discovering in alarming numbers that children they believed were their biological offspring are not. It was reported that in 28 percent of paternity tests conducted in 1999, the man being tested was not the biological father. Nevertheless, many of these men continue to be liable for child support for other men's children or suffer the consequences of jail.
This can happen to married men because many states adhere to a 500-year-old English common-law doctrine that presumes a married man is the father of a child born of the marriage. Never-married men can find themselves in this precarious position through default paternity and child support judgments. Such a judgment can be court ordered without the alleged father's knowledge. For example, the alleged dad does not show up at court to contest the paternity action because he did not know about the court date. This can result when the alleged father is not personally served notice of the court date by a process server or law enforcement officer.
"The issue is crystal clear. Paternity fraud is just as reprehensible as any other kind of fraud from which Americans need protection. When we condone fraud in paternity DNA cases, we undermine our entire system of justice. It's time to correct this injustice," said Leving.
This is an issue with urgent national significance.
"Paternity fraud is the only crime where the victim is persecuted for the actions of the guilty party," said Smith. "My case is representative of many similar cases nationwide. A correct decision by the U.S. Supreme Court would offer justice and relief to many."
"My petition to the high court argues that the Georgia statute enables the Georgia courts to have the power to force biological fathers to pay child support, but this power does not extend to forcing a non-relative who did not adopt a child to pay," said Smith.
"Making men pay child support for children proven by DNA testing not to be theirs is not in the best interests of children and families. It can also deprive children of ever knowing their true biological fathers," said Leving.
Nationally, this issue has picked up great momentum. Ohio and, most recently, Georgia have passed legislation that allows men proven by DNA testing not to be the father of a child to be released from child support payments. Georgia passed paternity legislation with votes overwhelmingly in favor of releasing non-dads from being forced to pay child support. In Georgia, the legislation passed the House 163-0 and the Senate 45-5. California is currently considering similar legislation.
Leving believes that this U.S. Supreme Court case could bring relief to countless victims of paternity fraud in America and stop the needless suffering of children and families. Otherwise, the laws dealing with paternity and child support issues must be changed gradually state by state, which will be unnecessarily time-consuming and will prolong the injustice.
Jeffery Leving, 312-807-3990, or
Jane Spies, 330-534-8948,
both for The Law Offices of Jeffery M. Leving, Ltd.
I have doubts the USSC will rule correctly in this case. Most likely they will rule the needs of the child outweight the rights (and fairness under the law) of the duped "parent". Though I hope I'm wrong.
This case could have far reaching consequences if 1/3 of all women in this country have to 'fess up.
I seen gubnit fraud.
To top it off, the story had some wench from some feminazi group that was saying ,(paraphrased) "It doesn't matter if he isn't the father, the needs of the child outweigh his concerns". Unbelievable !
I watch those shows where they test men because something simaler happened to me and I see those young men who are crushed when they find out they are not the father.
I know how that feels. It can harden your heart and destroy you for the rest of your life. What is really amazing is when they have two or three men tested and none of them is the dad.
Women have spent the past thirty years demending the right to be like men. Well now they drink like men, screw anyone, and the result combined with DNA testing is devastating to the family structure in America.
That is just a guess on your part. Who knows what the rate would be if all women were tested.
The 33% figure is not just among those that seek DNA testing because they thought their spouse was cheating, it also includes those that are seeking genetic information, history and passing on of family diseases, etc. The percents always come in about the same.
Did you ever see photos of Web Hubbel and Chealea CLinton placed side by side?
To understand how this comes about, you need to understand some of the process as it is practiced here. A woman will come into the child support office and tell the child support people that Joe Blow is the father of this kid. The child support people contact, or try to contact Joe.
If Joe comes in to talk about the situation, the child support people tell him about DNA testing that is available for about $150.00. If he wants that testing, he has to front the $150.00, but if it turns out that he is not Papa, the state reimburses him for that fee. If he wants the testing, the child support people set it up. They give Joe a reasonable amount of time to come up with the money. If he takes the test and it determines that he is the father (really the determination is that there is a 99%+ that he is the father) the only question is how much does he pay. If he takes the test and is excluded (which does happen a lot) that is the end of it. If he does not want to be tested, the child support people ask him if he is willing to stipulate that he is the father and to agree to pay child support.
If Joe refuses to come talk to the child support people or if he refuses DNA testing and does not sign a support agreement, the State sues him. He is served with a complaint alleging that he is the father and with a summons stating that he has 30 days to respond and that on his failure to respond, the court will enter an order finding that he is the father of the child in question.
In the cases that I prosecute, we attach a notice to the complaint that the defendant has a right to DNA testing, but unless he asks for it now, he will probably waive his right to seek such testing later. This notice is not required and is probably not widely done, but I think it is a good idea.
In my cases, even if the defendant does not respond to the complaint and even if he has not requested DNA testing, I have the defendant subpoenaed to come into court the day his case is tried. Again, this is not required and is probably not widely done, but it is a good idea. You must remember that a subpoena is a court order for the defendant to appear in court and testify just like any other witness. Assuming that the defendant comes into court, I tell him that he is entitled to DNA testing, that we will continue the matter to allow that testing, and that this will be his last chance to ask for it. I put Mama on the stand and ask her if she had sexual relations with the defendant during the possible time of conception and whether she was having sex with any other men at the time. Joe has the chance to cross examine her then. The child support people have asked her that question many times before we got that far. If the mother changes her story and says that there is another possibility or if the defendant says that he thinks that she was having sex with another man at the time, I ask the court to continue the matter to allow DNA testing and the state pays for it. I then tell the defendant that he has the chance to say anything he wants about the case. After all of that the court enters an order finding that the defendant is the father. Sometimes the defendant does not come to court even in the fact of a subpoena.
In these cases the alleged father has had several chances to have DNA testing. I have little sympathy for anyone who ignores all of these chances, and only pays attention when he is called on to pay some money.
One of the primary benefits of having a court judgment is to have some finality to the procedings. I know that there are some hardship cases out there, but they need to be addressed in a narrow, ad hoc fashion rather than to let men who have had a lot of chances to have this testing done early in the process, but who have ignored them, open up these cases. Sometimes you have to live with your decisions and deciding not to take a DNA test early in the process is one of them.
What percents do you see where the ex-husband was not the biological father?
First, take the case of a married man who goes through a divorce, through his fault or not. After the divorce, sometimes years later, the "father" finds out he is not the biological father of his children. He has no recourse against his cheating ex-spouse, the true biological father is let off the hook for his responsibility of proving for the children he fathered and the state is fine with this. Since the husband at the time of divorce stipulates he is the father, assuming his spouse did not cheat then lie to him, the state accepts this, even with evidence to the contrary. Men have been released from prison when DNA testing has shown them to be innocent of rape and/or murder, even in cases where the person previously stipulated they were "guilty" of the crime. When scientific proof comes into play, previous statements/acknowledgement are waved in the interest of fairness. No so for duped spouses.
The second instance is when a accused father can not be found by the state and by default charges him with being the parent of a child. This situation happened to my very own brother. While he was in the Navy on shore duty in upstate NY, he met a lady whom he dated two times. He did not have sexual relations with her (yes I believe my brother on this) and ended the relationship because in his words she was "nuts". After his shore duty ended, he was stationed on a carrier and almost immediately was sent on a Med Run. While he was at sea, this "woman" went to the state and claimed my brother was the father of a child she had just had. The state sent out the usual notices demanding he appear in court and take a DNA test, except for one thing, he was thousands of miles away, never received the notices and could not have appeared even if he had. He was charged by the state with being the father and ordered to pay support.
When he returned from sea, he had a warrant waiting for him in Norfolk, Va for child support, plus arrears. There was just one HUGE problem, my brother due to a childhood illness is 100% unable to father a child (medical tests were conducted, 0 sperm present), secondly, as I stated previously, he did not have sex with her. This information did not matter one bit to the courts in NY. They had determined my brother was the father, and now 5 years later, he still pays child support for a child that could not be his. The courts did allow him a DNA test, which showed there was a 0% chance he is the father, didn't matter, the needs of the child outweighed my brothers rights. If the state has the right to determine paternity based on some judges ruling, the person charged should have the right, even years later, to be "let out of jail" and have the money he paid in support and court costs refunded to him. Just as a person in prison has the right, even years later to be released if DNA testing shows their innocence. As things stand now, only a handful of states allow this.
Since you work for the state collecting child support, you must realize collection of support really boils down to collecting money for the state. Since all states are given federal funds for collection of support, plus all states (as far as I know) charge a fee to a person they collect from even if they are 100% paid up and have always been, things will not change unless the USSC steps in. The revenue lost is to much to chance.
You can bet the Pheminists will present a vigorous defense. There's no way they want to give up the woman's right to point to the man with the deepest pockets and name him as the father.
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