May 23, 2014 by Robert Franklin, Esq.
“The law is a ass.”
Mr. Bumble, Oliver Twist
Last Friday, the Nebraska Supreme Court ruled that a man who is not the father of a child must continue paying to support the child even though the original order of support was brought about by “fraud, duress or mistake of material fact.” The dissent summed up the currents state of Nebraska law on the subject of child support occasioned by paternity fraud this way:
The majority has effectively held that all adjudicated fathers signing an acknowledgment before 2008 have no procedure to overcome the “res judicata” effect of the paternity decree and prove that they are not the acknowledged child’s biological father. Under the majority opinion, a man who is not the child’s father can be coerced to make future support payments to a man who is the child’s father, even upon a demonstrated falsehood. This result demonstrates that without a remedial procedure in place, hospital acknowledgments of paternity easily become a child support system that is unconcerned with actual paternity.
Just so.
Back in 1994, Shirley M., a resident of Nebraska gave birth to a son, B.M. She told Brian F. he was the father and repeated the claim to the hospital, the Bureau of Vital Statistics and eventually a court of law. Based on her claim, Brian F. signed an acknowledgement of paternity form and was ordered by a court to pay $50 per month child support. Brian was living in Minnesota and did not attend the court hearings.
In 2009, the state took the child from Shirley M. who then stated the child had been fathered by another man. Apparently, that other man was given custody of the child, although the Supreme Court opinion isn’t clear on the subject. That alerted Brian F. that he probably wasn’t the child’s father and he filed a pro se motion to be relieved of his obligation of support.
At the same time, the state requested Brian F.’s support order to be modified upward and, in part because Brian was unable to attend the hearing, it was increased to $359 per month.
The trial court read Brian’s pro se filings to be alternatively a request to modify his child support order or to disestablish him as B.M.’s father. Genetic testing was performed that showed Brian to not be the child’s father, and the trial judge issued an order declaring him such and relieving him of further child support obligations.
The Supreme Court reversed the trial court for reasons that are too bizarre and byzantine to fully explain. If scraping your fingernails on a blackboard isn’t painful enough, you can read the opinion here.
In a nutshell, the Court ruled that (a) Brian filed the wrong form, but, (b) had he filed the right one he’d have lost anyway. As the dissent succinctly pointed out, Brian and every man in the state like him has no legal recourse. An unmarried man signed an acknowledgement of paternity form prior to 2008, has no legal way to be relieved of paying child support despite the absolute certainty that he’s not the father.
Stated another way, the State of Nebraska is yet another one whose laws actively encourage paternity fraud. As the Supreme Court sees it, Brian should have known to contest paternity at the time his rights and duties were being adjudicated, i.e. in 1995. Having failed to do so then, he can’t now. According to those justices, any man wrongly identified by a court as the father of a child prior to a change in the law in 2008, has no recourse. Many states allow litigants to attack previous judgments at any time based on the equitable concept that a judgment brought about by fraud, duress or mistake of material fact were wrongly issued in the first place and therefore void. Apparently Nebraska has no such law.
As of now, Brian F. must pay the father of B.M, who now seems to have custody. The actual father has never paid a dime to support his child, but now receives Brian’s support despite Brian’s not being the child’s father and never having played that role. Apparently, Shirley M. is paying no child support despite being the child’s non-custodial parent.
Mr. Bumble was right. But I have a few suggestions for making the law less of “a ass.” First, men who father children should be the children’s fathers. If a child is biologically half a man’s, that man should have rights and duties to the child. Concomitantly, if he doesn’t father a child, he should have no rights or duties to the child. I know that’s a concept that’s far too simple for most lawyers and judges to grasp, but consider all the time, energy and public resources that would be saved if all paternity law began with those two related ideas.
I read family law from states around the country and countries around the world and am continually struck by certain things. One is just how complex those laws make fathers’ rights and duties. This becomes all the more clear because they invariably stand in stark contrast to the laws on mothers’ rights and duties. Where is the law that says an unmarried mother must jump through all the legal hoops an unmarried father must, just to secure her parental rights? Legal procedures, acknowledgements of parenthood, genetic testing, motions to file, lawyers to hire? Mothers don’t have to do any of that, so why should fathers?
Why not genetically test every child and every man named as its father when the child is born? Why not establish paternity that way, the certain way? And once that’s done, why not give the man parental rights and the obligations that go with them? It’s simple, it’s reasonably quick and most importantly, it’s certain. No more paternity fraud, no more multiple “fathers,” no more lawsuits, no more claims by outraged men who’ve been duped into paying for children who aren’t theirs. Along with everything else, just reading the Nebraska Supreme Court’s opinion in Brian F.’s case makes it clear just how much time and judicial resources have been expended in deciding Brian’s case, and it’s not over yet. The Court remanded the case to the trial court. Brian may still have the opportunity to prove his case for a downward modification.
In the same vein, states should require their child support enforcement agencies to pursue only actual fathers, i.e. not men who aren’t the fathers of children in need of support. One of the salient, albeit barely mentioned by the Supreme Court, features of Brian’s case is the fact that the state has known for at least five years who the true father is and yet it continued pursuing Brian, the man it knew is not the father, for support. At any time in the proceedings, including now, the state could have simply discontinued legal action against Brian, and sought support from the actual father. Or, now that the child is in the care of his biological father, it could do the unthinkable and demand support from Shirley M. But no, it’s got a fraudulently obtained order against Brian and that’s what it’s seeking to enforce.
Finally, states should do yet another unthinkable thing; they should place a legal duty on mothers to correctly identify the fathers of their children. After all, in all but the rarest of cases, women know with whom they’ve had sex, and, if they’ve done so with more than one man near the time of conception, they should be legally required to identify each such man. That way, at birth, each man and the child could provide specimens for DNA analysis and the issue of paternity would be forever decided, not just legally, but factually.
No man should either gain or lose parental rights because a woman couldn’t be bothered to tell the truth about the paternity of her child.
These are easy-to-apply concepts. If enacted into law, they’d make everyone’s life much simpler, more predictable and less stressful. Into the bargain, they’d significantly reduce the need for state resources to untie the Gordian Knot of paternity fraud that benefits no one and harms at the very least two men (the actual father and the fraudulently-named man) and one child who believes one man is his/her father only to find out later in life that a stranger is.
But no. We’d rather the courts be expensive, unpredictable and unfair than require basic honesty of mothers about one of the most important thing in any man’s, and any child’s life. It’s just how we roll.
What’s that again, Mr. Bumble?
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