By Erica Christian
In the wake of his recent passing, radio stations across the world are playing the music of Michael Jackson, commemorating his contributions to pop culture. The next time you find yourself jamming to his hit Billy Jean, I encourage you to pay close attention to the words which describe the situation that is the nightmare many men live today: Paternity fraud.
Paternity fraud occurs when a woman intentionally names a man to be the father of her child when she knows he is not the biological father, often for the purposes of collecting child support. Celebrities are certainly not the only men who face paternity fraud. With the advancement and availability of paternity tests, many men are coming to learn that the children they have paid support for over many years are not their biological child. The devastating revelation leads to many victims, including the non-biological father, the biological father, the families of both men, and most certainly the innocent child.
Men who later learn they are not the biological father of their child often find themselves without relief. If you later learn you are the victim of paternity fraud, it is not as easy as submitting the DNA test results to the court to eliminate a child support order. Depending on the jurisdiction, once the deadlines for contesting paternity have passed and the court has ordered terms for support, you may still be obligated to continue to support the child despite the fact that a DNA test has proven you are not the father. In fact, many states have declared that a DNA test alone is not sufficient to vacate a paternity order. Family courts are courts of equity and if the biological father is not produced, the courts may completely overlook the victimization and turn to the best interest of the child which is to continue to require you to support the child.
Be sure BEFORE you sign
Hearing the words “I am pregnant,” can ignite a wide variety of feelings in a man. He may be overjoyed, terrified, or a combination of the two. For the woman looking to commit paternity fraud, she is hoping that he is filled with the overwhelming sense of responsibility to do the right thing.
In most jurisdictions, genetic testing is not required to establish paternity. Voluntary Acknowledgment of Paternity (VAP) forms are available for fathers to sign at the hospital at the time of the child’s birth. If the VAP is not rescinded within 60 days, the VAP is a binding determination of paternity. Thereafter, the acknowledgment may only be challenged in court on the basis of fraud, duress, or material mistake of fact.
The VAP includes various warnings and disclaimers. It is important that you read the entire document; after all, when you sign the document, you are stating that you read and understood each of the provisions. The VAP includes a waiver of the right to paternity (DNA) testing. By signing the VAP, the man is declaring to all, including child support enforcement, that he is the father of the child. However, the VAP does not establish a father’s parental rights; rather, a father will have to initiate separate custody proceedings to pursue parental or visitation rights.
If you have any doubt in your mind that the child is not yours, you should request a DNA test at the hospital to confirm that you are the father BEFORE you sign the VAP. Many states have laws regarding DNA tests for minor children which require the court to make a determination whether or not the test is in the best interest of the child. If you decide to wait until the child is older and the child recognizes you as dad, the court may make a determination that the DNA test is not in the best interest of the child.
Because there are strict guidelines for rescinding the VAP, if you signed a VAP and do not believe you are the father, contact an attorney immediately.
I Never Signed Anything
Perhaps you did not learn that paternity was established until after you start seeing a deduction for child support out of your paycheck. In some states, paternity can be established by default if the alleged father does not respond to the action which may have been mailed to an address he has not lived at in years. In this situation, the mom stated in court that he was the father and because he was not there to deny it, the default paternity was ordered. Additionally, when a child is born during a marriage, most states have a presumption that the husband of the mother is the father of the child. In each of these cases, the men never had to sign anything stating they were the fathers. Each state has different guidelines for contesting paternity in default paternity actions and in marital presumption cases. If you are in this situation, you should contact a domestic litigation attorney licensed in your state immediately to explore your options.
If you believe you are not the father of the child and the deadline for contesting paternity has passed, there may still be hope. The court may vacate a paternity acknowledgement if you prove fraud, duress, or material mistake of fact. The difficulty in proving fraud, duress, or material mistake of fact to vacate the acknowledgment is that the laws and court rulings of each state vary. As stated previously, a subsequent DNA test may not be sufficient. If you suspect you are the victim of paternity fraud, you should contact a domestic litigation attorney immediately.
In order to succeed under paternity fraud, you have to prove that the mother committed fraud. This is not to be confused with a woman who mistakenly names a father who later turns out to not be the father. The elements of fraud require you to prove that she knew you were not the father, she told you that you were the father, and that you signed the acknowledgment based on her statement. You will need evidence. Did she tell you she knew? Did she write you a letter or email stating she knew? Did she tell anyone that she knew? These are just a few of the questions that you will need answered in order to gather evidence to assemble your case for paternity fraud.
In addition to proving that the child is not yours and that the mother committed fraud when naming you as a father, it is important that you also identify and locate the biological father. The courts are concerned for the financial support of the child; providing the alternative means of support combats the best interest of the child argument. Depending on your jurisdiction, if the biological father is located, you may also be able to obtain an order of restitution requiring him to reimburse you for the amount you have already paid in support.
The decisions in paternity fraud cases vary greatly from state to state. Even if you do not believe you have a case for fraud, if you believe you are not the father of a child you have been ordered to pay support for, you should contact a domestic litigation attorney licensed in your jurisdiction.
Erica Christian is an Associate Attorney in the Milwaukee, Wisconsin office of Cordell & Cordell, P.C. She is licensed to practice law in the state of Wisconsin. She is a member of the Wisconsin Bar Association, the Family Law Section and the Children’s Law Section.