Injustice by Default

How the effort to catch "deadbeat dads" ruins innocent men's lives

Matt Welch from the February 2004 issue

(Page 3 of 4)

"What we have done in the past is sped up many of these defaults," Gerhenzon says. "And they were penny-wise and pound foolish, maybe, to go ahead and get quick orders.... And what we've certainly learned through our collectibility study, and...through general customer service, is that it is far, far better to get the right parent up front....In cases where we actually, because of the default, have the wrong parent, we end up collecting a whole lot less money."

Innocence Is No Defense

The systems for establishing paternity and providing child support are replete with legal deadlines that vary from state to state. Besides having 30 days to respond to a paternity complaint, an accused father in California has 180 days to contest a child support order and two years from birth to challenge paternity using DNA evidence (unless he has signed a voluntary declaration of paternity in the hospital under the federal government's new Paternity Opportunity Program, in which case he has just 60 days). If, for what-ever reasons, any of these deadlines aren't met, no amount of evidence can move the state to review the case; the DCSS has to be sued. Unlike capital murder convictions, which are being overturned around the country because of DNA evidence, family court cases typically hew to the "finality of judgment" principle to prevent disruptions in children's lives. Or, in the words of former California legislator Rod Wright, "It ain't your kid, you can prove it ain't your kid, and they say, 'So what?'"

That's how a man like Taron James could be slapped with a support bill for thousands of dollars from Los Angeles County in 2002, and continue to be barred from using his notary public license, even after producing convincing DNA evidence and notarized testimony from the mother that her 11-year-old son, whom he's seen exactly once and looks nothing like, is not his child and that she no longer seeks his support. James says his name was placed on the child's birth certificate without his consent while he was on a Navy tour of duty; then the mother refused to take blood tests for eight years, and he became aware of a default order against him only when the Department of Motor Vehicles refused to issue him a driver's license in October 1996. By that time, James had missed all the relevant deadlines, the court was unimpressed with his tale of woe, and he has since coughed up $14,000 in child support via liens and garnishments.

"I contact Child Support Services, and their whole thing is, 'Take us to court. You don't like what we're doing, take us to court,'" he says. "Whether or not you're the biological father doesn't matter -- if someone's got your name, and you've...failed to participate in the court date, then you have an obligation to pay child support, period."

Needless to say, taking DCSS to court is expensive (James says he's already run up legal bills of $4,000), and success isn't likely. To add insult to injury, even if you win, you won't get any of your money back.

State bureaucrats say their hearts bleed, but rules are rules. "We are obligated by law to enforce the order," says California DCSS's Gerhenzon. "We have no ability not only to stop enforcement of our own, but not to proceed with doing everything we can to get child support in this case, because we have to enforce the legally established order. The recourse is to get that order set aside, or overturned."

When judicial systems enthusiastically enforce rulings they know to be unjust, it's a surefire formula for creating activists. After writing scores of letters to politicians and conducting endless Internet searches, James and his girlfriend, Raegan Phillips, hooked up with a national group called U.S. Citizens Against Paternity Fraud, founded by a Georgia engineer named Carnell Smith. Smith paid more than $40,000 in support over 11 years to an ex-girlfriend's child he assumed to be his, until she requested more money in 1999. He then took a DNA test and discovered he wasn't the father, but the court ordered him to pay $120,000 anyway. Enraged, he launched Citizens Against Paternity Fraud and began lobbying the Georgia legislature to change laws that limited the admissibility of DNA tests. In May 2002, the effort passed, so now at least some default dads in Dixie -- those who have never adopted their children or officially acknowledged paternity -- can overturn support orders using DNA evidence, regardless of how much time has elapsed. In March of last year, under the new law, Smith's personal support order was finally overturned.

Similar laws have passed in Virginia, Ohio, Iowa, Arkansas, and Alabama; others are working their way through statehouses in Texas, New Jersey, California, Florida, Michigan, Vermont, and elsewhere. Meanwhile, courts across the country are trying to redraw the legal lines of paternity now that genetic testing and welfare reform are colliding with 500 years of common law tradition, which has presumed that all children born in a marriage are the husband's responsibility, whether or not he is the biological father. In May 2003, the New Jersey Supreme Court ruled that men who have admitted paternity, even if the mother lied to them, are not allowed to introduce DNA evidence to challenge support orders. Carnell Smith has been trying to push the issue to the U.S. Supreme Court, so far without success.

Although paternity fraud activists are beginning to gain traction, they face formidable obstacles. The Welfare Reform Act is largely a popular success. More two-parent families are staying together, more single mothers are entering the work force, and child support collections have doubled. By just about any measure, these trends are in the best interests of the affected children. In Massachusetts 18 years ago, for example, women had a miserable rate of success (around 10 percent) in suing for paternity, according to Marilyn Ray Smith, the state's chief child support enforcer, and genetic tests were inadmissible except to disprove paternity. For single mothers and their children, the legal climate obviously has changed much for the better.

Which helps explain why so many feminist groups and politicians have dug in their heels to block paternity reform bills. Considered in zero sum terms, any change that prevents some unjustly named fathers from supporting kids they didn't sire reduces the amount of money children and single mothers receive while increasing states' welfare payouts. Child support advocates also worry, with some reason, that narrow-sounding legislation aimed at preventing obvious injustices may become a Trojan horse for men who change their minds about the responsibilities of fatherhood. But that's rarely how the issue is presented. Women's groups usually argue that fatherhood cannot be measured by DNA alone -- a disingenuous stance, considering the thousands of men who pay for kids they've never lived with.

"What makes a father?" California state Sen. Sheila Kuehl (D-Santa Monica) said in an August 2002 interview with the Los Angeles Times, explaining why she was voting against Rod Wright's latest reform bill. "This bill says the donation of genetic material makes a father. I don't agree."

Kuehl, a former family law attorney who cosponsored a law that reworked California's child support system in 1999, has been the single biggest opponent of paternity-related reform bills in the state, to the point where activists like James and Phillips refer to her as "Sheila Cruel" and are planning demonstrations outside her office. Kuehl refused repeated requests to comment for this article. "She says it's not her issue," a spokeswoman told me. "She's not interested to talk about it."

Wright, who considers Kuehl a friend, says he tried several times to sway her with individual stories of innocent victims who'd been trampled by the current system. "Sheila said to me one day in a hearing room: 'You know, I understand that, through the convergence of science and thousand-year-old common law, we have to work toward a kind of balance. And I side with the kids; I don't really care about this guy.'" Wright chalks it up to the prevailing poli-tical winds. "If this was a case where women could be charged similarly," he says, "Sheila would be all over this like a cheap suit. It's really a case where it becomes a guy vs. a child. So it's like, 'Well, screw the guy.'"

Paternity activists argue that the best interests of the child should include, among other things, knowing who her real biological father is, so she can have accurate medical information. And every day the wrong man is on the hook, they point out, is a day not spent finding the real father.