Arizona: They’re not the Dads, but They Still Must Support Mom’s Kids

March 3rd, 2013 by Robert Franklin, Esq.
Our old friend paternity fraud was in the news last week, this time appearing in Arizona.  And, as is so often the case, the law is foursquare on the side of the defrauding mother.  Dad’s got no rights despite the fact that he was led by fraud to play the role of father to a child who turned out not to be his.  Read about two cases here (KLTV, 2/28/13).

Phoenix resident Chris Ybarra is one duped dad in question.  A few years ago, his girlfriend gave birth to a son and Chris, stand-up guy that he is, acknowledged paternity and had his name placed on the child’s birth certificate in the blank marked ‘Father.’  A year went by and the couple had already separated, but Chris paid child support and cared for the boy believing him to be his.  But about that time, it started becoming obvious that something was fishy.

“We had that bond through his first years and he called me ‘daddy,’” said Valley resident Chris Ybarra.

Ybarra loved his son Kyler. But when Kyler turned 1 year old, Ybarra said he began to worry that maybe Kyler wasn’t his after all.

“I have dark features,” Ybarra said. “He had blond hair and blue eyes and he started looking nothing like me.”

Ybarra didn’t tell his girlfriend about his suspicions. They had already broken up. Instead, he took his son to get a DNA test. And his suspicions were confirmed.

“It was just really hard for me to wrap my head around that the kid I had been caring for isn’t even mine,” Ybarra said.

So Ybarra went to court to be absolved of parental responsibilities, but the court said ‘no.’  His ex-girlfriend had done that thing so many mothers do; she’d fooled Chris long enough for the courts to deny him any say in his own parental rights and duties.  It’s an often told tale.  If she wants him out of the child’s life, all a mother has to do is conceal the existence of the child and, in many jurisdictions, a biological father will have to jump through flaming hoops to get any kind of contact.  And that of course is if he ever learns it’s his.

By the same token, if she wants a particular man to be the father, all she has to do is have sex with him and, unless he’s very mistrusting and quick to act, he’ll be on the hook for a child who’s not his.

Either way, a mother who’s even a reasonably skillful liar can completely decide what rights and duties the man has, if any.

Chris Ybarra knows that now, but few men do.  Another such example is Ken Smith who’s been fighting for years to be relieved of child support obligation to a child who’s not his.  He’s in the same fix Ybarra’s in – out of luck.  Amazingly, yet another man who doesn’t know the law on paternity fraud in Arizona is State Senator Rick Murphy.

Sen. Rick Murphy, R-Peoria, said he had never heard of this dilemma until CBS 5 Investigates told him.

“It’s something I plan to look into,” Murphy said.

He questions whether the women who allegedly lied to these men should be held criminally responsible.

“There should be something in the law that recognizes that they should not be locked into paying child support to a mother that has essentially defrauded them,” Murphy said. “I think it’s not appropriate for a court or anybody else to force that to continue.”

I think criminal penalties for paternity fraud are a bad idea.  If you make judges send mothers to prison for paternity fraud, most prosecutors and judges will balk.  After all, what good does it do a child for his/her mother to serve time?  My guess is that convictions would be few and far between.

More importantly, sending Mom to prison wouldn’t improved Dad’s (or non-Dad’s) situation in the least.  The problem with paternity fraud as it’s currently practiced is that it allows mothers to decide fathers’ rights and obligations.  In Ybarra’s case, the mother decided Ybarra should be the father even though he’s not, and the actual father should not be the boy’s dad even though he is.

In the case of the real biological dad, who’s unknown to everyone but Ybarra’s ex, Arizona law seems to run afoul of the Constitution as it applies to parental rights.  Supreme Court precedents clearly hold that states may not diminish or terminate a parent’s rights absent a showing that he/she is unfit.  Obviously, that hasn’t happened in the case of the father of the child Ybarra’s required to support.

Now, it’s true that parental rights don’t come strictly from biology (although parental obligations do).  The Supreme Court has also said that a single father must demonstrate his commitment to parenthood before he’s imbued with parental rights under the Constitution.  What that means as a practical matter is that, once again, a father’s rights reside firmly in the mother’s hands.  If she allows him to demonstrate his commitment, he’s in like Flint.  If she doesn’t, too bad for him.  The Supreme Court’s rulings clearly presume that fathers – at least single fathers – are all doing their best to duck their responsibilities.  So they have to prove their worth.  If Mom doesn’t allow it, well, somehow, that’s not her fault, it’s his.

One of the seminal cases on the subject, Lehr v. Robinson makes this perfectly clear.  The dissent in that case spelled out the many things the single father tried to do to establish and develop a relationship with his child.  The mother went through some extraordinary machinations to avoid the man and thwart contact with his child.  It was very clear that the father’s “failure” to demonstrate his commitment by being a real parent to his child was entirely her doing.  And that was perfectly fine with the Court.  According to the Court, parental rights are “far more precious than property rights.”  They’re “fundamental rights,” preceding even those rights established by the Constitution.

It’s just that, if you’re a single dad, you don’t get to exercise your rights if Mom doesn’t happen to want you to.  Let’s be clear; in no other area of American law does one free adult have the power to grant or deny rights to another free adult.  Nowhere.  The Supreme Court should overrule Lehr and other precedents that permit mothers to grant or withhold fathers’ rights at their discretion.

Of course the standard rejoinder to every claim of fathers’ rights is that it’s the children who are important and fathers should take their lumps and like it.  Indeed, that’s pretty much the point made by one attorney in the Ybarra case.

“The court has to think of the children first and foremost in those situations,” said Steve Wolfson, a family law attorney.

Wolfson admits it’s difficult to undo a paternal relationship, even if a person proves through DNA to not be the parent.

“If a lot of time has gone by, if bonds between that father or mother have already been established with the children, the court may be less likely to disturb that order,” Wolfson said.

Who could argue?  If the child sees Ybarras as his father and Ybarra’s always played that part, what sense does it make to upset that arrangement?  Doing so would only hurt and confuse a little boy.

So the argument goes, but of course it’s bunk.  It only comes up when a father claims some sort of power to make decisions about his own parental rights.  As I’ve said before, locating the biological father, performing genetic testing to make sure he’s the right guy and letting him take up his obligations isn’t so difficult.  In fact, states Attorneys General do it many times a day, every day of the week.

So what about the child’s well-being?  Well again, we take fathers from children as a matter of course.  We replace them with fathers they’ve never seen before, also as a matter of course.  And we do all this regardless of the child’s age, the depth of his/her attachment to the man who’s played the part of Dad or Dad’s parental fitness.  It’s called divorce and remarriage, and court’s never hesitate to allow just those things.

Does Mom want a divorce?  She gets one.  Does she want custody?  She gets it.  Does she want to marginalize Dad in the child’s life?  Most courts don’t lift a finger.  Does she want to remarry?  She does so.  All of that is well known to be detrimental to children’s emotional and psychological well-being.  Sometimes it’s bad for them physically as well, since Mom’s boyfriends and stepfathers are much more likely to abuse a child than is a biological dad.

So isn’t it interesting that one of the few times the issue comes up of a child’s attachment to a father figure is when that father figure wants out of the situation that was arranged by Mom without his knowledge or consent?  Let a defrauded dad like Ybarra or Smith demand a say in his own parental role and all of a sudden, we’re told that the child is too fragile to permit it.  Who asks about the child’s emotions and psyche when Mom decides she’d like to trade Dad in on a newer model?  Not a soul.

There’s a simple fix to the problem of paternity fraud.  Mothers should not be allowed to decide fathers’ rights or duties.  A man in Ybarra’s situation should be allowed to opt out of his role as parent.  If he opts in, as many defrauded dads do, her dishonesty must weigh heavily against her in deciding custody.  All things being equal, she should lose primary custody to him.  In the meantime, the biological father should be located and given an opportunity to step up to the plate.  If the child ends up with two daddies, so be it.  It’s nothing that doesn’t happen when Mom remarries anyway, so what’s the problem?

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