October 3rd, 2012 by Robert Franklin, Esq.
Good sense reigned supreme at Tennessee’s highest court Tuesday. By a unanimous vote, the state’s Supreme Court ruled that paternity fraud gives rise to a claim for civil damages. There are some limitations on the court’s holding, but generally speaking, it’s a blow for decency and common sense. Above all, it’s a great leap forward in society’s treatment of men in family matters as human beings deserving of respect and equal treatment.
Way back in 1991 when they were still in high school, Chad Craig and Tina Marie Hodge had a romantic relationship. They broke up for a time, during which she pursued a sexual relationship with another man, Joey Hay. Hodge and Craig got back together, but she never told him she’d had sex with Hay. So, when she discovered she was pregnant, Hodge told Craig the child was his. He asked her if she were certain and she said there could be no other father. That was a lie, but Craig had no reason to know it was. He wanted to do the right thing, so he proposed to her and the couple married. Six months later she gave birth to a son, Kyle. Hodge already had a daughter, and Craig adopted her.
All went well for about 10 years, but, in 2001, Hodge informed Craig that she was seeing and having sex with another man. The two separated and divorced. Hodge got primary custody and Craig paid child support and other expenses for Kyle. Hodge remarried as did Craig, who moved to Georgia.
By the time Kyle was 14, he began saying he wanted to live with his father, so Craig moved back to Tennessee to live near Kyle so the boy wouldn’t have to be uprooted and move to Georgia. The custody and child support orders were duly changed and Hodge started paying Craig child support for Kyle.
But as the boy continued to grow, Craig couldn’t help but notice that he bore no resemblance to him. So one night, while Kyle slept, Craig swabbed the inside of his cheek, and sent the sample, along with one from himself, off to a DNA testing laboratory. Sure enough, the results revealed that Kyle had been fathered by someone else.
Craig was stunned by the news and initially couldn’t figure out what to do, but eventually he confronted Hodge and the two agreed she would break the news to Kyle. When she did, the boy distanced himself from Craig saying that “things are different now.” Soon, Kyle moved back in with his mother and did other things to push Craig away.
Craig asked the court to be relieved of any future child support obligations and, in 2007 received an order to that effect. He then sued Hodge for intentional misrepresentation of his paternity of Kyle.
The trial court agreed that he had the right to sue, found that Hodge had lied and awarded substantial damages including child support paid, and medical and insurance expenses paid post-divorce. It also awarded him $100,000 for emotional distress and ordered Hodge to pay his attorneys fees.
Hodge appealed and the appellate court overturned the entire monetary award even though it found that the lower court was correct in finding that Hodge had intentionally lied about Craig’s parentage.
So Craig took the matter to the state Supreme Court that reversed the appellate court and held that a man who’s been told by a mother that he’s the father of her child can sue her if she’s not telling the truth. From now on, in Tennessee, every woman has a legal duty to tell the correct man he’s the father of her child. If she’s not sure who the dad is, as in Hodge’s case, she’s required to say so.
Now, case law is always limited by the facts of the case. So, for example, this holding only extends to married fathers, but there’s no apparent reason why it’s unacceptable to defraud a married man but acceptable to do so to an unmarried one. So my guess is that, if an unmarried man brings a similar case, it’ll meet with a similar result.
Unfortunately, both Craig and Hodge failed to present certain issues to the Supreme Court that they could have. If they had, the court’s decision would be much more complete than it is, but those are now questions for another day. Most importantly, we don’t know the extent of damages a man in Craig’s situation can claim against a defrauding mother. What we do know is that he can recoup child support, medical expenses and insurance premiums paid on behalf of the child post-divorce. Can he recover punitive damages or those for emotional distress? We don’t know because Craig’s lawyer failed to submit the question to the Supreme Court. Can he recover attorney’s fees paid pursuing litigation? We don’t know that for the same reason.
The reason that the Supreme Court was able to consider such questions for the first time is that the state legislature has never passed a statute either approving such suits or rejecting them. Given that, the way was open for the Court to expand the common law into the area of paternity fraud. But before it did so, the court practically begged the legislature to pass a law on the subject. So, fathers’ and men’s rights advocates in the state need to keep their eyes open and be ready to stop any bill that would reverse the Supreme Court’s decision. In the mean time, they should submit a bill of their own confirming the ruling in Craig vs. Hodge.
So far, six states, Illinois, Kentucky, Minnesota, Oklahoma, Utah and now Tennessee, allow suits against the mother for paternity fraud. Five states reject such a cause of action, California, Florida, Georgia, Nebraska and South Dakota.
For now, the law in Tennessee is settled and settled correctly. Put simply, there is no justification for a mother’s defrauding a man regarding paternity. Opponents argue (a) that the defrauded man suffers no harm and (b) that litigation of the matter would unduly harm the child. Neither claim makes a particle of sense.
Arguments for lying rarely have much power, and this is no exception. The notion that the man doesn’t suffer when he learns that his wife/girlfriend has (a) had an affair with another man, (b) borne his child, (c) lied about who the father is and (d) collected large sums of money from him post-divorce because of her lie, can only be held by someone who doesn’t live in the same world the rest of us do. That a man who spends years loving and raising a child he subsequently learns is not his suffers no emotional distress at the news is too absurd to even repeat.
As to litigation of a paternity fraud case harming the child, it’s less the litigation of the lie than the lie itself that harms. Once a child has been raised all its life by one man he/she believes to be Dad, only to learn at age five, eight, 14, etc. that in fact “Dad” is not really Dad, but a stranger is, the damage has been done, and it wasn’t the defrauded man who did it. Besides, if you want to talk about litigation harming children, we already have plenty of examples of that. It’s called divorce, it’s done over one million times a year in this country, and it’s unquestionably harmful to children, but the law doesn’t prevent parents from divorcing because of that.
It’s always amazed me how selective courts and legislatures are in invoking the welfare of children. Most astonishing is the fact that children’s welfare is most often raised to bar fathers’ rights in particular areas. Paternity fraud is one of those; adoption is another. Let a single father try to stop the adoption of his child and the cry is invariably raised that to allow him to do so would be too traumatic for the child. The result is that children who’ve been with adoptive parents for as little as a few weeks are deemed too fragile to tolerate being parented by their father, even though much social science directly rebuts the notion. But when parents want to divorce – a process well known to be harmful to children – no one says “boo.”
Now that Tennessee has joined the ranks of states that respect men’s rights to be told the truth about paternity, mothers have a very powerful impetus to do just that. When they do, children will benefit because they’ll know from Day 1 who their real father is. They’ll know their biological inheritance which will serve them well all their lives for medical reasons. They’ll never face some drastic change in parentage later in life due to their mother’s lie being discovered. Into the bargain, the actual father will have the opportunity to be a father to his child, to watch him/her take their first steps, say their first words, walk into the schoolhouse the first day. Those and so many other things are important to all parents and shouldn’t be subject to the whims of mothers who, all too often, look only to their own interests.
Thanks to the Supreme Court of Tennessee for doing the right thing. Here’s the S.C. ruling.
And thanks to Tony, JD and others for the heads-up.