Connecticut Advances Due Process Rights for Putative Fathers

In Connecticut, courts have procedures to establish paternity that give men actual due process rights.  This good and fairly thorough article describes what happens on “Paternity Thursday” in New Haven (New Haven Independent, 8/2/11).

In cities like Hartford and New Haven, there are enough cases to establish paternity that the courts have set aside a special magistrate and a special day of the week to hear them all.  On the Paternity Thursday reported on, 56 cases were heard in three hours.  That’s about three minutes per case, but despite the short time, something important happens; the men whom mothers have named as fathers of their children actually receive an opportunity to either accept the designation or contest it. 

If they contest it by requesting DNA testing, the cost is a mere $30.  If the accept it, the magistrate, David Dee, carefully explains the consequences and encourages them to reconsider.  That is, he tells them that it’s advisable to get paternity tested rather than simply assuming the mother’s  claim to be true.

That’s because, once paternity is established, either by genetic testing or by acknowledgement by the man, Connecticut law only allows the matter to be revisited (reopened) in the case of “fraud, duress or material mistake of fact.”  In short, it’s next to impossible for a man to change his mind at a later date and get the court to order testing.  Once he agrees, he’s stuck with his decision.

The whole process applies only in cases of children born to single mothers.  How do those cases get to Magistrate Dee’s court?  The article doesn’t say, but my guess is that the mothers have filed for child support or the state has paid some form of benefits to her or the child and is seeking reimbursement from the father.

So, on Paternity Thursday, men named as father show up in court along with mothers.  The first time a man is in Dee’s court, he’s asked if he wants testing done.  If he does, samples are taken, he pays his $30 (or nothing if he’s indigent), and is scheduled to return to receive results of the testing. 

If he doesn’t want testing done, Dee admonishes him to reconsider, but if he’s adamant, an order will be issued establishing his paternity.

If the man doesn’t show up, a default judgment will be issued against him, establishing his paternity and assessing an amount of child support.

That’s it in a nutshell.  The good news is that these guys have an opportunity to be tested.  That’s in marked contrast to the process in many states in which Attorneys General seem to stop at nothing to deny men the opportunity to learn for certain whether they fathered the child in question or not. 

My recent posting about Keddrick Clemons in Texas is a perfect example.  There, the Texas AG’s office knew to a certainty that Clemons wasn’t the father, but lied to the him and the judge for the sole purpose of tagging him with support for a child who wasn’t his. 

So the men get an actual chance to have DNA testing done.  That includes the fact that it’s cheap and in some cases free.  I’ve argued long and hard for mandatory testing of all children at birth and one argument I hear often against it is the cost.  My response is that it’s cheaper than the alternative which is years of litigation and heartache.  Now we know states can do testing much cheaper than it’s done in private labs.

Not only that, but the outcome of the testing actually matters.  That is, if the test comes back negative, the named man has no obligations to the mother or the child.  That’s as it should be, but time and again, genetic testing has no such effect.  Until very recently in Texas, if a man got divorced without doing genetic testing, the child was legally his irrespective of its DNA.  Later results showing him to not be the dad made no difference.  The same is true of default judgments of paternity in which any man anywhere can be established to be the father and woe betide him who resists.

That’s the good news.  The bad news is that, as far as the article shows, there’s nothing to prevent the fraudulent taking of default judgments against men who aren’t the father and may have nothing in common with him apart from a name.  The article doesn’t say what the safeguards are against those orders, so that expedient for states to falsely establish “paternity” apparently still exists.

Also, notice that the assistant attorney general handling all these cases in Dee’s courtroom works for the state.  She also works for the mothers.

“We do our very best to make sure everyone”s rights are considered,’ Assistant Attorney General Amy Guido said during a break between representing the state”s and the mothers” interests in all 56 cases heard Thursday.

Notice too that the entire process assumes that the state’s interests and the mothers’ are the same.  If they weren’t, one attorney couldn’t represent them both; she’d have a conflict of interest.  That means that their interests are assumed to be antithetical to those of the fathers.

And that in turn makes a difference.

One case was titled Sarah Pena v. Orlando Colon. Pena came to court with a man other than Colon, who never appeared. When her case was called, Pena quickly accepted the results of an independent May 10 paternity test that established someone other than Colon as the father. Assistant AG Guido did not oppose the motion to open the paternity judgment or the finding that Colon was not the father.

So what happened was that Pena named Colon as the father.  Somehow his paternity was established (otherwise there’d be no reason to reopen the case).  That was probably done by default judgment since he “never appeared.”  Then testing got done on the guy she’s with in court and it turned out Colon wasn’t the right man after all.

In that case, reopening the case was simplicity itself; the AG’s office agreed, the mother agreed and the other party, Colon, wasn’t present, so the case was reopened.  No problem.  Gone were the all-but-insuperable obstacles of “fraud, duress or material mistake of fact.”  Or, more likely, the state and the mother agreed that she made a material mistake of fact and so the case can be reopened.

Notice that that happens easily because Mom and State are on the same side.  But what would have happened if Colon had wanted to reopen the case and contest the finding of paternity? 

“The threshold is very high,’ Assistant Attorney General Guido said. A paternity test proving that the man is not the biological father is often not enough.

So when Mom gives the nod to the assistant AG to reopen the case because she likes the guy who’s been found to be the father, the case is reopened without a blink.  If the man who’s been found to not be the father wants to do the same, all of a sudden “the threshold is very high.”  Funny how that works.

It doesn’t have to be this way.  The guys don’t have to be given a choice.  The state has an interest in figuring out exactly who fathers are and who they’re not.  So do children. 

There’s not a reason in the world why this first court hearing has to be a court hearing at all.  It’d be better and cheaper for it to be nothing more than an appointment for a mouth swab.  Once that’s done and the results received, the man will either be established as the father or let go.  If it’s the latter, the mother will have to provide another name and the process will be repeated.

That should be what happens in all the cases in which the putative father didn’t appear at the hospital for the birth of the child.  If he did, he should be tested there and paternity either established or not.

As this article shows, genetic testing of all kids and supposed fathers at birth would save a lot of time, money and anguish.  In the meantime, at least Connecticut gives some guys a chance to establish with certainty the facts about their paternity.  It’s better than a lot of states do. 

It’s also not nearly good enough.

Thanks to Ron for the heads-up.

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