Judge Crafts Unique Remedy in Paternity Fraud Case

March 8th, 2013 by Robert Franklin, Esq.
A state judge in Virginia recently came up with a novel approach to the problem of paternity fraud and child support.  In fact, it’s one I’d encourage other judges to consider when ruling in similar situations.  Read about it here (NBC12.com, 2/28/13).

It seems that Dwayne Parsons and Janitha Saunders had a child 13 years ago.  As happens so often, Saunders either told Parsons he was the dad or allowed him to believe it.  Whatever the case, what she didn’t do is tell him the truth – that either he or another man could be the father.  So Parsons signed the birth certificate as the father.

Just how much time Parsons and Saunders spent together, if any, isn’t clear, but at some point a child support order was issued against Parsons.  He paid some support, but not all of it and so a debt accrued – about $23,000 in all.

But then a funny thing happened to Janitha Saunders on the way to the bank.  Parsons found out he’s not the child’s father.  DNA tests revealed he has no biological relationship to the girl.  So Parsons went to court asking to be relieved of any further child support obligations and his debt to Saunders.

That’s when the judge did a creative thing.  First, he ruled that Parsons is no longer required to make child support payments for a child who’s not his, which is not unusual depending on the state in which the case is heard.  But when it came to the past indebtedness, the judge was hamstrung by the Bradley Amendment.  That’s the federal law that prohibits state judges from retroactively modifying child support orders.  Once in place, those orders can only be altered prospectively.  So Parsons still owes the $23,000 and the judge had no choice but to order him to keep paying.  And so that’s what Parsons will do – for 1,917 years.

That’s right, the judge ordered Parsons to repay what he owes at the rate of $1 per month, with no interest added on.

And that’s what I like about the judge’s solution to the problem of how to fashion an order that complies with the law, but that also feels fair, i.e. doesn’t reward the mother for lying to the man (and the child and whoever the father is) for so long.

Obviously the judge sympathized with Parsons’ predicament.

In court, the judge explained that there are “certain aspects of the law that seems grossly unfair.”

That’s putting it mildly.  But leave it to Parsons’ current fiancee to spell it out for Saunders who still doesn’t seem to have a clue about her multiple wrongdoing.

“If you made a mistake, you made a mistake, but don’t carry that lie throughout all these years, because you’re not only messing up other people’s lives, but what about that child, has anybody thought about how she feels about it,” said Green.

Good question, but the obvious answer is ‘no.’  Saunders never thought about the child’s take on growing up believing one man is her father and then finding out that was all a lie perpetrated by her mother.  What the girl’s response to that has been remains a mystery, but it can’t be good.

For her part, Janitha Saunders claims she can’t see anything wrong with what she did.

“I’m good, I’m good, I take care of mine, I’m good, I just took care of her for 13 years I don’t need anyone to take care of her, I’m good,” said Saunders.

Hmm. Strictly speaking, that’s not true.  If she didn’t need any help, why’d she accept child support from a man she knew might not be the father?  But more importantly, Saunders defines “taking care of her” to include lying to her daughter about her paternity, a fact that’s led to this situation.  Who is the girl’s father?  Has Janitha Saunders coughed up that information yet?

Parsons says he’s learned his lesson and it’s one he wants other men to learn as well.

“Unfortunately the law is the law, my message to everybody is if you’re unsure, about you being the father of the child, do not sign that birth certificate – that’s a well lesson learned,” said Parsons.

I’m sure Parsons means well, but I remain unconvinced.  In the first place, it can’t be easy for a man who’s at the hospital with his wife/girlfriend for the birth of “his” baby, to say “Nope, I’m not signing anything until I’ve had genetic testing done to make sure I’m the dad.”  The word “creep” comes to mind.  It’s just not realistic to ask a man to do that.

Second, doing so places the burden of paternity acknowledgement precisely where it shouldn’t be.  As in all cases of paternity fraud, Parsons knew he’d had sex with Saunders, but he didn’t know she’d had sex with someone else.  Likely that someone else didn’t know she’d had sex with Parsons.  The only person who knew all the facts relating to the paternity of her child was Saunders, and that’s exactly where the law should place the responsibility for paternity establishment.  If there’s a possibility that one of two or more men could be the father, the woman should have a legal obligation to say so.  That way, DNA testing can be done either at birth or before and the correct father can take up his rights and responsibilities from the start.

But to my knowledge, no state does that.  They allow women to lie about paternity and then, when the lie is discovered, attempt to correct years of misinformation, wrong relationships and misplaced rights and obligations after the fact.  If nothing else, it’s an astonishingly inefficient and ineffective approach to a fairly common problem.  Just look at Dwayne Parsons’ situation.  Can anyone tell me this couldn’t have been handled better?  If Saunders had come clean 13 years ago, none of this would be happening today.

As I see it, states can take one of two approaches.  The first is to conduct genetic testing on every newborn.  Any of those results that show the dad is someone other than the guy who thinks he’s the dad will result in finding true father.  If he can’t be found (for example, if the mother doesn’t know who he is), then the child grows up without a father.  If the results show the man who thinks he’s the father is the father, well and good.

There are those who say that’s too expensive, but DNA tests ordered by Connecticut courts cost fathers $30.  DNA testing should be part of every birth and charged to the parents or their insurance companies that should be required by law to cover them in their policies.

The great virtue of universal testing of all children is certainty.  No more surprises for children, no more exchanging one “father” for another, no more establishing a loving bond between a man and a child only to have it destroyed sometime later in the child’s life.  And no more child support orders for men who aren’t fathers.  Into the bargain, maybe just maybe, if women knew their children would be tested at birth, they’d start telling the truth about paternity.

Another approach would be to establish in law the principle that no man should have parental rights established or duties imposed without an opportunity to ascertain, via DNA testing, whether he’s the father or not.  So, if a mother decides to keep a child secret from the father, he shouldn’t be accruing a support obligation all that time.

The problem with that second alternative is that it really doesn’t do much to prevent paternity fraud.  It helps to protect men’s right to know about their paternity, but that’s about it.  It’s not as good as universal genetic testing, but it’s better than the status quo.

For the time though, we’re stuck with what we have, which is a hodgepodge of state laws that, for the most part, require nothing of the mother and, often as not reward lying.  Tell the truth or don’t, it’s all the same to those states.  Predictably, they end up with unfair, hurtful and confusing situations like Dwayne Parsons’ and Janith Saunders’.  A few permit lawsuits for paternity fraud, and apparently Virginia is one of them.

Parsons says he still hopes to get back the thousands of dollars he paid in child support. He said he plans on taking the child’s mother to court.

I wish him the best of luck.