The Chad Craig/Tina Marie Hodge paternity fraud case is going to the Tennessee Supreme Court. Read about it here (The Tennesseean, 8/21/11).
Back in 1991, Hodge became pregnant and Craig figured the child was his. But just in case, he asked Hodge and she assured him he was the child’s dad. So Craig did what any responsible father would do; he stood by Hodge and helped raise the boy they named Kyle as his own.
Still, when the boy was 14, Craig couldn’t resist his growing uncertainty. The boy just didn’t look like him. So one night as the boy slept, Craig swabbed the inside of his cheek and sent that and a similar swab of his own cheek to a DNA testing laboratory. Sure enough, the results came back negative; Chad Craig’s “son” was not his son.
In fact, he’d been fathered by a man named Joey Hay with whom Hodge had had a relationship that she refused to divulge to Craig, even when he asked her. Craig didn’t tell the boy about his discovery, but did tell Hodge who then told Kyle. To Kyle, that meant he was no longer Craig’s son and moved out of his house to live with his mother.
Craig sued Hodge for paternity fraud and won in the lower court that awarded him about $26,000 in child support paid and $100,000 for emotional distress. The appellate court overturned the award saying that the Bradley Amendment foreclosed a recovery of child support because the law prohibits “retroactive modification of a child support order.” The $100,000 award was also struck down because Tennessee law doesn’t permit damages for emotional distress to be awarded in cases of misrepresentation.
The linked-to article gives a pretty fair idea of the arguments on all sides of the case. First, Hodge claims that she didn’t commit fraud because she didn’t know who the father was. Both the trial and appellate courts have mad short shrift of that.
The simple fact is that she alone among all people in the world knew with whom she’d had sex. Therefore she knew who the possible fathers were. As in any case of fraud, failure to disclose a material fact can be fraudulent. And failure to tell a man that another man might be the father of the child is, in the words of Tennessee Juvenile Magistrate Scott Rosenburg, a “very material fact.”
The arguments against a cause of action for paternity fraud just aren’t very convincing. Hodge argues to the Supreme Court what’s the law in three states – “that such cases are harmful to the child and too private for courts to deal with.”
That’s just silly. Courts deal with the most “private” of things all the time, including medical decisions, abortion decisions, religious decisions, etc. Besides, if there’s a legal doctrine that courts shouldn’t touch certain areas of human behavior because they’re too private, I haven’t heard about it.
Would such a suit be harmful to a child? Possibly, but it’s a strange set of priorities that promotes the mother’s original deception with all its capacity to hurt the child, her husband and her paramour, over the right of a defrauded man to be compensated for the undeniable wrong done to him.
Alaska, Illinois and Kentucky are among the states that have decided paternity fraud is no different than any other fraud and that compensating paternity fraud victims outweighs the potential harm to children.
An Illinois court opinion pointed out that not allowing such cases would be to let deceitful mothers off the hook for lying about a child”s paternity. The court wrote “that public policy does not serve to protect people engaging in’ such behavior and that it would not allow a mother “to use her daughter to avoid responsibility for the consequences of her alleged deception.’
There’s much to be said after all for honesty and much to be said against dishonesty. Any state that prohibits a defrauded man from pursuing a civil remedy for the wrong done to him stands on the side of wrong against right. It stands for lying, fraud and deception against telling the truth.
Moreover, allowing men to sue for paternity fraud would do two of the things civil suits are meant to do – compensate the victim and discourage others from engaging in the wrongful behavior. That’s Magistrate Rosenburg’s position, and I agree.
“With this kind of cause of action, maybe everyone will be a lot more careful,’ Rosenburg said. “It would almost put an affirmative duty on women to disclose sexual relationships in the period of potential conception. That could be the ultimate outcome of this case.’
It should do exactly that. Again, it’s the woman, and only the woman, who has the information necessary for the men to make informed decisions. She knows with whom she had sex and they don’t. Therefore if there’s any possibility that any of two or more men may be the father, she should be required to say so. If she does, they can do DNA testing and sort the matter out before years have passed and relationships formed.
To do anything else is, once again, to place men’s parental rights in the hands of women. In this case, as in every paternity fraud case, two men and a child have all been hurt for one reason – because Tina Marie Hodge didn’t have the moral fiber, the common decency, the simple honesty to tell one simple truth. “I’m not sure who the father is” may be hard to say, but it sure beats the alternative, as Craig, Hay and the boy can all attest.
That brings us to yet another silly argument, that of lawyer Karla Hewitt.
Nashville family lawyer Karla Hewitt, however, said Craig and similarly situated fathers share some of the blame and shouldn”t wait years to raise questions.
“I mean, he obviously had doubts about the child”s parentage, or he wouldn”t have asked the mother if she was sure it was his,’ Hewitt said. “He should have marched right down to the lab when the baby was born and gotten the DNA test. I think he sat on his rights in that regard.
No, this is not the man’s fault. This is the mother’s fault. She has the knowledge and a moral (and I’d argue a legal) obligation to divulge facts known only to her. The idea that the man has an obligation to figure out her deception, but the woman has none to refrain from deceiving is too silly – and, yes, too misandric – to even think about.
The final argument that the court of appeals swallowed hook, line and sinker, is that for Craig to recover the amounts he was fraudulently led to pay in child support would be a retroactive modification of a child support order just doesn’t make sense. He’s not modifying anything at all. He’s suing for damages for an intentional civil wrong, the way countless people do every day in different circumstances.
And that of course is the main point. For some reason all those opposed to Chad Craig’s being compensated for Tina Marie Hodge’s 14-year deception of him believe that, for some reason, paternity fraud is different from all other civil wrongs. They want us to believe that mothers, alone among all other people, should be allowed to lie to men about one of the most important things in their lives – their children. The Tina Marie Hodges of the world want the law to protect that deception, to create a little zone of safety for them alone in which they’re free lie with out consequences.
We’ll see what the Supreme Court of Tennessee does. But however this case comes out, the real way to deal with paternity fraud is to make sure it doesn’t happen in the first place. We can do that any time we want to by the simple expedient of genetically testing every child at birth. That would cost money, but it would save it in the long run by entirely stopping all future paternity fraud and all the litigation that goes with it.