The Lawlessness in Our Courts is by Design

How the Failures of Welfare Reform Created Our Lawless Courts (Part Two)

By Terri Lynn Tersak, Teri Stoddard and Dave Heleniak

In Part One of this series, we reviewed how the US Congress functionally transformed our welfare state into a child support state. Arguably the most despicable of the backlash effects of this enormous error are mechanisms that pay the states to promote, protect, and reward paternity fraud. Paternity Fraud is wrongly naming a man as the biological father of a child, and then forcing him to pay child support.

When those unfamiliar with this issue first hear of the problem, the typical response is: “a DNA test will solve that.” Guess again.

Doug M. Richardson of Michigan discovered one of the two children born during his marriage were not his biological child. Armed with DNA evidence of this fact he tried to keep the court from ordering him to pay child support to his ex-wife. Nevertheless, based on his ex-wife’s false testimony the court entered an order of child support against him anyway. Shortly after this his ex-wife abandoned both of the children, leaving them with the biological father of the older child. Along with this action, she filed for an “abatement and redirection of child support” that caused Doug’s child support payments to go to the biological father of the older child. Both actions were done without notifying Doug. Moreover, the Michigan courts are required by law to notify the child support obligator of any actions of abatement and redirection of child support and grant the obligator a 21 day period to appeal. The courts failed to notify Doug of this for over five years. This resulted in Doug paying child support to the older child’s biological father for both of his the children while loosing all contact with his child. (The chain of events of this sorted tail are detailed on the Fix the FOC (Friend Of the Court) website in the story by Charles E. Corry, Ph.D., F.G.S.A., “DNA DADDY,” and Doug’s testimony to the Michigan Senate and a complaint by the Michigan Judicial Tenure Commission against a judge in the case.)

Former Nebraska football player Corell Buckhalter, now with the Philadelphia Eagles, is paying thousands every month for a child everybody, including the mother, admits is not his. DNA testing proved he is not the father but the state of Nebraska refuses to release him from the child support payments. The state refused to accept the genetic test saying that because it was a privately conducted test, not a state-authorized test, it is inadmissible. Further, Nebraska's statute of limitation expired during the debate over accepting the private test, so even if the "authorized" test is performed they won't dismiss the child support order.

Taron James returned from the Gulf War to find himself a victim of paternity fraud. He fought the judgment for over ten years while the county attached his paychecks, unemployment checks and tax returns. This was happening despite DNA evidence excluding him as the father. A motion to set aside the child support judgment was successful, but the court refused to order the county to reimburse Taron for the more than $12,000 it took from him. Taron is appealing.

Viola Trevino alleged she’d given birth to Steve Barreras’ child after they divorced. Proof of her tubal ligation and his vasectomy were not allowed into evidence. When DNA testing was ordered, Trevino had two tests falsified. Barreras’ wages were garnished for child support while he tried to convince the court there was no child. Finally, five years later, Trevino was ordered to bring the child to court. Her lies became apparent after she “borrowed” a 2-year-old girl from someone she met at a mall, took her into the court room and tried to pass her off as Barreras’ 5-year-old child.

Tony Pierce was slapped with default paternity and child support orders for the child of a woman he’d never met, after county child support caseworkers told him daily phone calls to their office would stop legal action. In reality, he had just 30 days to respond to the Superior Court of Contra

Costa County or settle with the District Attorney. All they were doing was delaying me from doing what I needed to do," he says. "It's a huge scam -- huge scam.... They’re just counting the days. They're like, 'Sucker, sucker, sucker, sucker.'... And this is the government!"

A critical part of the operation of our child support state is the creation of non-custodial parents (NCP). Without them, there would be no one to pay child support and the states would lose billions of federal grant dollars (outlined in “Part One” of this series).

It’s the states’ job to create the NCPs. To support this effort are a battery of federal laws that permit the states to assign “paternity” to whomever they choose. Under these federal laws, a biological mother has the legal authority to petition to establish the paternity of her child until the child’s eighteenth birthday. However, the legal standing a putative father has to petition for redress against a false claim of paternity doesn’t exist anywhere in the US Code. The putative father is restricted to contesting such wrongful child support orders at the state level, in whatever period the state decides. Generally, time periods among the states range from 30 days to four years, the later being the statute of limitation in Texas.

The most extreme restrictions for filing for redress against wrongful paternity establishments currently exist in the state of Colorado, where once a child support order has been issued, the putative father has no standing in the courts regarding the matter. This Colorado law was the work of State Senator Steve Johnson, whose handicraft outraged so many people he was awarded the “Single Biggest IDIOT on Earth Award” for 2005 by the group called “Drop the GOP.”

Of course, there is a reason behind these idiotic regulations: money, your tax dollars to be specific. One of the major determining factors governing how much federal grant money a state may receive under the onerous Child Support Performance and Incentive Act (CSPIA) are paternity establishments.

The federal government really doesn’t care who is named the father of child, as long as someone is ordered to pay child support. They permit the states to make it next to impossible for the putative father to correct any errors the state makes.

This is the case, even when the biological father tries to step up to support his child. In the case of Michael Barnes Jr. of Gobles, Michigan, he tried to take his case to the United States Supreme Court, but the highest court in our nation declined to even hear the case.

The sorry truth is this problem could be simple to correct. Included within US Code Title 42 are sections dealing with the permissible methods to determine paternity in a child support case. All that needs to be done, is to modify the existing code to make genetic testing the only valid method to establish paternity, and to require paternity verification through genetic testing before any court can issue a child support order. This would not be hard to do. True Equality Network presented the simple statutory changes required to the US Congress in their 2006 report, “Modifications to Federal Statutes Required to Disincentive Paternity Fraud.”

Operating under the guise of the “best interest of the child,” our current laws permit women to assign long-term punishment to innocent men and teach children they can get paid for perpetrating fraud and no one in authority will care. It may actually be much fairer to create a “child support lottery” and assign financial responsibility by random draw. As it is, we have an enabling system that promotes fraud, protects the guilty, and operates in the best interest of state funding, not children.

It is obvious to any clear thinking person that in current practice paternity related laws defy reason and deliberately violate of the equal protection clause of our Constitution.

This socially destructive system has not been entirely unopposed. Some efforts have been made by various states’ lawmakers to change the system. But they all failed for the same reason, money. In September of 2002, then California Governor Gray Davis vetoed an anti-paternity fraud bill citing the money his state would lose in federal grants and the fear of upsetting women's organizations that opposed the measure.

Even though the proposed change was modest (it would have given men a mere two years after discovering they weren't the father, to produce the DNA evidence as prove), it met fierce opposition by women's groups. Also in 2002, a Florida lawmaker offered up paternity fraud bills that died similar deaths. A package of bills that included anti-paternity fraud measures passed in the Michigan House unanimously (102-0) but died in their Senate like the others.

There is also great debate over how many cases of paternity fraud currently exist. The American Association of Blood Banks (AABB) is charged with keeping record of paternity test results among their member facilities. In their 2004 report, “ANNUAL REPORT SUMMARY FOR TESTING IN 2004,” Prepared by the Relationship Testing Program Unit, they state that the average exclusion rate for the laboratories reporting exclusions was 25.92%, with a standard deviation of 7.27. The median exclusion rate was 27.00% with a range of 11.11% to 39.48% (see page 6 of the report). The exclusion rates for other years are available from various sources, including being listed in True Equality Network’s report on CSPIA Abuses by the States.

Later in the AABB 2004 report it states:

“During the past year, AABB has continued to receive inquiries from the media and the public concerning the exclusion rate. AABB has seen the exclusion rate misused by several organizations trying to claim that 30% of men are misled into believing they are biological fathers of children when the mother knows this not to be true. This claim is incorrect. The exclusion rate includes a number of factors. One is that a woman may allege several men as possible fathers because she was sexually active with these individuals. These are not men who were misled into believing they were fathers and then later discover they are not. The testing merely sorts out which of these men is the biological father and excludes the others. Another factor is that typically an unexcluded alleged father, as part of his defense, will allege the mother had multiple sexual partners during the time of conception. These other partners are subsequently tested. Sometimes testing of a man is required because of a legal presumption. When the mother identifies the correct biological father, but the child is the product of a marriage [she is (was) married to someone other than the biological father], there is a legal presumption that the husband is the father. The husband is then tested to rebut the legal presumption, even though no one believes that he is the biological father of the child. In short there simply is no evidence that a large number of the men excluded in the testing were misled into believing they are the biological father of a given child.”

While some of that above statement is true, it fails to qualify the percentages of the various factors contributing to the established exclusion rates. For example, in a prior year’s report of the same title, the AABB states that multiple exclusions, the cases where the mother had multiple sexual partners during the time of conception, account for less then 2% of the exclusions. Yet women’s groups falsely publish that these cases account for majority of exclusions. Frankly, it seems unreasonable to believe that anyone would just show up for a paternity test without being named a putative father first.

The exact number of men who have been genetically excluded as being the biological father of a child who are ordered to pay child support anyway is both unknown and highly debated. But news reports and statements from Judges show this isn’t something new and the number of cases isn’t a small percentage.

In the Los Angels Times series “ In 9 of 10 Child Support Cases, D.A. Comes Up Empty-Handed” it is reported that "No one knows how many men are wrongfully pursued for child support, though the district attorney's own records show that on average more than 350 a month are incorrectly named as fathers." There are no indications that the LA County's problem has seen any significant improvement since this series of reports first ran in 1998.

According former Los Angeles County prosecutor Judge Mablean Ephriam, in 2000 79% of paternity judgments were decreed by default. This means the putative father didn't appear for the hearing. Many times this is because they had not been contacted. As told by Judge Ephriam and others, often the only pre-hearing efforts made to locate these men are ads placed in the legal notices section of the newspapers. Most of these men had no idea they were considered fathers until their wages were garnished.

One has to be concerned when someone can allege the paternity of a child but is unable to provide service details of the putative father until after the child support order is entered, which is the case in most of these default judgments. One must also ask: if those seeking the orders know where to send service notices for the attachment of wages, why didn't they know where to send the notice of the hearing?

In her 2002 letter to the Los Angeles County Board of Supervisors, Judge Ephriam says,

"There is no doubt that men have important issues that are not addressed enough by society. Fraud is one example. Thousands of men every year are misidentified as the father of a child and never know about it until years later, when it is too late. Then they're locked into financial prison and forced to pay child support when DNA excludes them as the father. Countless men and their families have been victimized and devastated by this very serious social problem. I have met and represented many of them myself."

Given the desperate need for our federal government to claim that welfare reform has been a success, it is doubtful that they will ever question how many paternity fraud cases there really are, or do anything about correcting the errors even if they did find out.

But what about the real “best interest of the child?”

Any person has the right to know who their real parents are. It is important to one’s sense of self and to one’s knowledge of genetic predispositions to illness. These are far more important than letting Mommy wallet shop so she and the state can cash-in.

Terri Lynn Tersak is the President and CEO of True Equality Network.

Teri Stoddard writes on issues affecting today’s families serves as True Equality Network’s Senior Equal Parenting Analyst.

David Heleniak is a civil litigation attorney in New Jersey and Senior Legal Analyst for the True Equality Network.