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Paternity Fraud is occurs when the presumption of, or establishment of, paternity is used to facilitate a fraudulent act or willful deception. Occurrences of paternity fraud usually involve a presumption of paternity against a parent with no genetic match to the child in question. Paternity fraud cases arise within a jurisdiction's relevant court system to address these presumptions.

Types & Causes

 Most cases identified as paternity fraud result from limited or no opportunity for a putative parent to challenge presumptions of paternity. In general these include; the presumption of legitimacy by marriage, determined parentage, default and ex parte judgments, time limits to contest paternity, not allowing a DNA test by restriction, not allowing a DNA test as inadmissible and putative father registries.

Victims are rarely able to claim compensation in the civil court system, and even in countries where paternity fraud is a criminal offense, action is rarely taken against offenders. In 2008 it emerged that even though the United Kingdom government had exposed 4,854 cases of false paternity claims there had not been a single prosecution for the crime. In 2012 the Iowa Supreme Court in ruling to allow a paternity fraud tort to proceed opined that allowing such litigation would help deter these types of cases and fit comfortably within the traditional boundaries of fraud law.

Occurrence

A 2006 scientific review of international published studies of paternal discrepancy found a range in incidence from 0.8% to 30% (median 3.7%, with half of the academic studies on the subject, i.e. eight, yielding rates from  2.0% to 9.6%), suggesting that the widely quoted and unsubstantiated figure of 10% of non-paternal events is an overestimate for men who have not sought paternity testing. However, for men who have sought paternity testing there were higher cuckoldry levels; from 17% to 33% (median of 26.9%). Most at risk were those born to younger parents, to unmarried couples and those of lower socio-economic status, or from certain cultural groups.

Testing

Others, such as the United Kingdom's Human Tissue Act 2004, establish that in virtually all cases only those who have parental responsibility for a child are able to give written consent for a child's DNA to be used as a minor. In cases where a presumption of legitimacy is already established a DNA test might be considered inadmissible regardless of the results or time passed.

Controversy

 New laws and guidelines have been proposed or enacted aided in part, or in reaction to, publicity raised by what most call Father's Rights Groups, especially since the advent of DNA testing. Noted figures include songwriter Bob Geldof, activist Matt O'Connor; (United States) movement pioneer Dr. Alexander Dallek, activist Ned Holstein M.D., M.S., columnist Glenn Sacks; (Canadian) columnist Wendy McElroy; (Australian) activists Ash Patil, Tony Miller OAM; and (India's) Ram Prakash Chugh.

Cases by Country

Australia

Magill v. Magill

 The Victorian County Court in 2002 awarded Mr. Magill $70,000 compensation for damages and economic loss against his ex-wife as a result of DNA testing in 2000 that showed only one of three children he was paying support for were genetically his. That ruling was later overturned in 2005 by the Victorian Court of Appeal finding that "intent to deceive" by the ex-wife had not been proven regarding misrepresentations made by Ms. Magill in birth forms about the childrens' paternity. This ruling was in turn then appealed with the High Court of Australia.

 In 2006 Australia's High Court struck down the appeal upholding the 2005 Victorian Court of Appeal ruling. Chief Justice Murray Gleeson in the 94 page High Court Ruling opined, "Without doubt the appellant's wife deceived him but the hurtful deception was in her infidelity, not in her failure to admit it." Mr. Magill as part of the ruling was also ordered to pay the Child Support Agency's legal fees during the previous 18 months of litigation.

 The 2006 High Court Ruling led to many calls from within Australia for reforms and changes to the Family Law Act and the Child Support Act to help protect men in Mr Magill's situation. By 2008 putative fathers in Australia could begin using DNA testing to confirm paternity regarding support orders after new changes, "section 143 of the Child Support (Assessment) Act", took effect regarding Family Court policies. The Magill case is often cited regarding new law reforms in Australia and is considered a landmark type case.

Canada

Cornelio v. Cornelio

 Mr. Cornelio began paying child support for his ex-wife's twins after the couple separated in 1998. The former couple settled upon a joint custody agreement in 2002 that continued Mr. Cornelio's monetary support for the twins. Shortly afterwards Ms. Cornelio requested a reduction in visitation time along with an increase in support payments that prompted Mr. Cornelio to question the paternity of the twins. A subsequent DNA test revealed that he was not their biological father. A request was made by Mr. Cornelio to be excused from paying further support claiming to be the victim of misrepresentation or fraud when Ms. Cornelio failed to disclose the affair while they were married when he signed the 2002 joint custody agreement.

 The Ontario Superior Court of Justice in 2008 ruled against the request to be excused or reimbursed for support payments. Judge van Rensburg in deciding to deny the request noted Mr. Cornelio had wondered at the time of his separation if an affair by his ex-wife had actually been responsible for the twins. "It was not until access was interrupted and Ms. Cornelio commenced proceedings seeking increased child support that the respondent began pursuing this issue," the judge remarked. "The fact of that relationship – even if it has now become strained – is sufficient to require Mr. Cornelio to continue to contribute toward the children's material needs."

United Kingdom

Mr. A v. Ms. B

 The split in 2002 between a couple identified for legal reasons as only, Mr. A and Ms. B, prompted Mr. A to pursue a parental contract to establish his non-married rights as their child's father. Ms. B then requested a DNA test that later showed Mr. A was not the (then) five year old's father. Following the discovery Mr. A then sued Ms. B for damages totaling up to £100,000 as a result of the deceit.

 During 2007 in what was reported as the first known case of its kind to reach trial in Britain, the High Court ruled in favor of Mr. A awarding £7,500 distress damages with another £14,943 for holidays and meals out Mr. A spent on Ms. B, (not the child). The judgment fell short of listed suit amount because the London Court did not allow damages for the child's material costs incurred because of Mr. A's enjoyment of the relationship. The judge, Sir John Blofeld, said he was satisfied that Mr. A's motivation in coming to court was not as a lever for contact with the child but because he did not want "to be taken for a ride".

United States

California, County of Los Angeles v. Navarro

 During 1996 the County of Los Angeles entered a default judgment against putative father Mr. Navarro and ordered him to pay monthly support for Ms. Doe's two children. The complaint to establish paternity filed by the Bureau of Family Support Operations was based on information provided by Ms. Doe naming "Manuel Nava" as the children's father. The agency determined that Mr. Navarro was the father in question and delivered notice to his sister's residence listing Mr. Navarro as "co-resident", notice Mr. Navarro denied ever receiving.

In 2001 Mr. Navarro armed with a DNA test showing he was not the children's father sued the County of Los Angeles asking to be relieved from the support order. The County of Los Angeles opposed the motion, arguing the motion was filed after the six month limit to contest a default judgment and the mother’s mere assertion that he was the father was insufficient to establish extrinsic fraud. The trial court sided with the County and denied the motion. This ruling was then appealed before the California 2nd Appellate Court of Appeal.

 In 2004 the court of appeal reversed the trial court decision ruling in favor of Mr. Navarro and became the first published California case to hold that the statute of limitations did not apply in setting aside an old default judgment against a paternity fraud victim. Immediately after the ruling was issued, the Los Angeles County Child Support Services Department announced that it would request that the case be depublished so it could not be used as a precedent by other men in Mr. Navarro's situation. That request was later denied by the California Supreme Court.

Florida, Parker v. Parker

 As part of their 2001 Florida divorce settlement Mr. Parker was obliged to pay $1200 monthly child support based on Ms. Parker's representations to the court that Mr. Parker was the child's biological father. In 2003 Ms. Parker filed a motion for contempt and a petition to enforce child support against Mr. Parker which prompted a DNA test showing that Mr. Parker was not the child's biological father. The motion was 16 months after their divorce, Florida law (at that time) only allowed the husband 12 months to contest paternity following divorce. Mr. Parker's court ordered payments would total about $216,000 over the next fifteen years.

 Mr. Parker filed a petition for relief claiming that the misrepresentation of paternity had resulted in a fraudulent support order. This was dismissed by both the Trial and then, in 2005, the Court of Appeal as being intrinsic fraud and subject to the Florida one year time limit to contest a dissolution decree, not extrinsic fraud, or a fraud upon the court, that can form the basis for relief from judgment more than a year later. This ruling was then appealed before the Florida Supreme Court who, in 2007, denied Mr. Parker's suit upholding the Fourth District Court of Appeal 2005 ruling.

 During 2006, the Florida statutes changed allowing a DNA test to be considered new evidence to contest a support order after the one year time limit. In it's published opinion the Supreme Court Ruling in 2007 noted the change in Florida Statutes, "which provides the circumstances and procedures under which a male may disestablish paternity and terminate a child support obligation," however the court decided not to considered the applicability of this new statute to Mr. Parker's circumstances, kicking the question of a retrial under the new law back to the Trial Courts.

 Because the basic facts are little questioned and the case explores differences between extrinsic and intrinsic fraud, other state Supreme Courts including Iowa and Tennessee have cited "parker v. parker" when writing opinions of their own for paternity fraud type cases.

New Mexico, Barreras v. Trevino

 Mr. Barreras and Ms. Trevino divorced in 1999 with Ms. Trevino shortly afterwards gaining a support order for her supposed daughter with Mr. Barreras named as the putative father. In 2004 a New Mexico court ruled that the child Mr. Barreras had up till then paid $20,000 support to Ms. Trevino for did not actually exist. Mr. Barreras sued a DNA testing laboratory in 2006 for falsifying two separate DNA tests for the supposed child by using samples taken from his adult daughter who, along with one of the lab employees, also face fraud charges. Ms. Trevino pleaded guilty in 2008 to charges of fraud and perjury facing twenty-one years prison after already serving federal prison time in Arizona for claiming the non-existent girl on tax returns.

 As part of the paternity fraud Ms. Trevino was able to obtain a birth certificate, medicare card and social security card for the fictitious girl prompting (then) Gov. Bill Richardson to direct New Mexico Department of Human Services to explain how several government agencies became not only unwitting partners in the fraud, but also resisted efforts to correct it. Letters and calls from Mr. Barreras to the New Mexico child support agency about his vasectomy in 1998 were ignored and when the child support enforcement division's order to bring the supposed child in for more paternity tests were not complied with by Ms. Trevino the agency simply closed the case without further investigation.

Tennessee, Hodge v. Craig

In October, 2012 intentional misrepresentation of paternity was recognized by a unanimous Tennessee Supreme Court in Hodge v. Craig, a case where the mother intentionally lied to a man about who the father of the child was. Based on the mother's assurances the couple married but later divorced. The plaintiff dutifully paid child support including medical insurance for the child. Based on physical differences between himself and the child the he obtained a tissue sample and confirmed his suspicions. Damages were awarded in compensation for child support paid for 15 years. The court's decision was based on the common law remedy of intentional misrepresentation; the court distinguished the award of damages from a retroactive modification of child support. The action was for damages; it was not a suit to disestablish paternity.

Other Cases

South Korea

 In 2004 a South Korean man was awarded $42,380 compensation for pain and suffering when a DNA test showed that his ex-wife's paternity claim regarding their child was false. When Mr. Doe, who had married Ms. Doe based on her paternity claim, started a lawsuit against a hospital for switching his child at birth Ms. Doe confessed to having been pregnant with another man's baby.

Spain

 A Court in Valencia, southeastern Spain, ruled in favor of Mr. Doe awarding him €100,000 in "moral" damages after a DNA test showed that after fourteen years of marriage only one of his three children had actually been fathered by him. The ruling was then appealed by Ms. Doe with the Spanish Supreme Court, who in early 2009 increased the amount and ordered Ms. Doe to pay Mr. Doe €200,000 in damages. The judges noted Ms. Doe had, “acted negligently in the conception of her children”, and the concealment of the truth “only added to the pain caused to the husband” who should be compensated correctly.

See also

References

1. Draper, Heather (2005). "Paternity fraud and compensation for misattributed paternity". Journal of Medical Ethics. 33 (8): 475–480. doi:10.1136/jme.2005.013268. PMC 2598159. PMID 17664309.
2. American Law, West's Encyclopedia of (2008). "Legal Presumption of Legitimacy". Free Dictionary.
3. Canada, 2007. "Doe v. Alberta, 2007 ABCA 50 (CanLII)". Doe v. Alberta .PDF. {{cite news}}: |first= has numeric name (help); External link in |location= (help)CS1 maint: location (link)
4. Australia, 1975. "Family Law Act 1975 - SECT 69Q". {{cite news}}: |first= has numeric name (help)
5. Welsh, Matt (February 2004). "Injustice by Default". Reason. USA.
6. Rankin, Bill (24 July 2009). "Wronged 'deadbeat dad' may be free of child support". The Atlanta Journal-Constitution. Atlanta, USA.
7. Sarkar, Julian (23 February 2010). "A Misandrist Mistake". The Dartmouth. New Hampshire, USA.
8. Masterson, Kathryn (1 April 2007). "DNA tests a boon to `duped dads'". The L.A. Times. California, USA.
9. DW Staff, ziw (2004). "Who's Your Daddy?". Deutsche Welle News. Germany.
10. Wintour, Patrick (31 July 2008). "One in 500 fathers wrongly identified by mothers in Child Support Agency claims". The Guardian. United Kingdom.
11. Press, Associated (2 June 2012). "Iowa court allows paternity-fraud lawsuit". Telegraph Herald. Dubuque, Iowa.
12. Anderson, K. G. (2006) Evidence from Worldwide Nonpaternity Rates. Current Anthropology, 47, 3 pp. 513-520. http://www.journals.uchicago.edu/doi/abs/10.1086/504167
13. Saad, G. (2009). Who’s Your Daddy? Global Nonpaternity Rates. Psychology Today. Retrieved 1027/2012. http://www.psychologytoday.com/blog/homo-consumericus/200911/who-s-your-daddy-global-nonpaternity-rates
14. Bellis MA, Hughes K, Hughes S, Ashton JR (2005). "Measuring paternal discrepancy and its public health consequences". J Epidemiol Community Health. 59 (9): 749–54. doi:10.1136/jech.2005.036517. PMC 1733152. PMID 16100312. {{cite journal}}: Unknown parameter |month= ignored (help)CS1 maint: multiple names: authors list (link)
15. "Human Tissue Act 2004, part 1 section 2, "Appropriate consent": children". Parliament of the United Kingdom. April 2006.
16. Sealey, Geraldine (2 October 2002). "Duped Dads Fight Child Support". ABC News.
17. Kasindorf, Martin (2 December 2002). "Men wage battle on 'paternity fraud'". USA Today.
18. "Florida man owes $10,000 for child who's not his". CNN. Florida. 11 July 2007.
19. Rawe, Julie (19 January 2007). "Duped Dads Fight Back". Time Magizine. United States.
20. Lake, Richard (8 December 2003). Las Vegas Review "Movement targets `paternity fraud'". Review-Journal. Las Vegas, Nevada. {{cite news}}: Check |url= value (help)
21. Geldof, Sir Bob (1 January 2008). "These cruel child laws". Daily Mail. London, England.
22. Archive, News (26 April 2008). "O'Connor halts mayoral campaign". BBC News. London, England. {{cite news}}: |first= has generic name (help)
23. Teed, Dexter H. (15 September 1931). "Ex-Husbands Start Hot Fight on Alimony Racket". The Capital Times p.2. Madison, WI.
24. Hill, Gladwin (3 April 1939). "Divorce Reform League". Herald Journal. New York.
25. "Ned Holstein, M.D., M.S., is co-founder and chaiman of the board for Fathers & Families".
26. Russell, Jenna (19 June 2011). "Ned Holstein, 67, of Newton, battles for divorced fathers' rights". Boston Globe. Boston, Massachusetts.
27. Archive, News (10 November 2004). "Fatherhood activists protest TV commercial mocking dad". USA Today. New York AP. {{cite news}}: |first= has generic name (help)
28. Ruttenberg, Cecily (19 July 2006). "Who's Your Daddy?". MetroActive. California, USA.
29. McElroy, Wendy (18 November 2003). "Fathers Protest Unjust Custody Laws". Fox News. Fox News.com.
30. "Ash Patil is president of Fathers4Equality".
31. Release, Press (7 September 2007). "Australian Dads in Dark About Recent Family Law changes". PRWEB. Australia.
32. "Tony Miller is a co-founder of Dads in Distress, Awarded Medal of the Order of Australia (OAM) for the provision of support services for separated families 2010 Queen's Birthday Honours, Tony Miller".
33. Archive, News (14 June 2010). "North coast residents get Queen's Birthday recognition". ABC News. Australia. {{cite news}}: |first= has generic name (help)
34. "Ram Prakash Chugh is given credit for starting the Men's rights movement in India".
35. Sen, Ayanjit (30 April 2003). "Wife gets divorce from nagging husband". BBC News. Delhi, India.
36. Archive, News (9 November 2006). "Paternity fraud 'dad' loses appeal". The Age. Australia. {{cite news}}: |first= has generic name (help)
37. Gregory, Peter (18 March 2005). "Appeal blow for man who paid maintenance for another's children". The Age. Australia.
38. Associated Press, Australian (31 October 2006). "Dad loses child support case". The Sydney Morning Herald. Australia.
39. Australia, High Court of (9 November 2006). "Magill v Magill". Aust LII. AUS.
40. Cummings, Larissa (11 November 2006). "Where are honesty and justice?". The Daily Telegraph. Australia.
41. Broadcasting Corporation, Australian (11 November 2006). "High Court rejects father's deceit claim". ABC News. Australia.
42. News, Australian (16 November 2006). "DNA test rights proposed for duped dads". The Australian. Australia. {{cite news}}: |last= has generic name (help)
43. Bissett, Kelvin (11 November 2008). "Paternity tests prove hundreds of men duped". The Telegraph. Australia.
44. Makin, Kirk (9 April 2009). "Man who didn't father twins must pay child support". The Globe and Mail. Canada.
45. Yutangco, Precious (8 January 2009). "Man must pay support though twins not his". The Toronto Star. Canada.
46. Ontario, Superior Court of Justice (22 December 2008). "Cornelio v. Cornelio, 2008 CanLII 68884 (ON SC)". Ontario, Canada.
47. Iggulden, Amy (4 April 2007). "Lover must pay broker for claiming son was his". The Telegraph. London, United Kingdom.
48. McVeigh, Karen (3 April 2007). "Stockbroker wins £22,000 damages for paternity deceit". The Guardian. London, United Kingdom.
49. Appeal, Court of (30 June 2004). "County of Los Angeles v. Navarro". scholar.google. California, United States.
50. McElroy, Wendy (14 July 2004). "Paternity: Innocence Is Now a Defense". Fox News. United States.
51. Writer, Staff (15 January 2005). "Law aids paternity fraud victims". Washington Times. United States.
52. Court of Appeal, California (30 June 2004). "County of Los Angeles v. Navarro, Cal: Court of Appeal, 2nd Appellate Dist., 8th Div. 2004". Case Law County of L.A. v. Navarro. California, United States. {{cite news}}: External link in |work= (help)
53. Writer, Staff (18 August 2004). "Court asked to 'depublish' child-support ruling". Washington Times. United States.
54. Carmel, Sileo (1 November 2004). "California agency will seek to depublish paternity ruling". American Association for Justice. Trial Magazine.
55. Fourth District., Florida Court of Appeal (30 November 2005). "Parker v. Parker, 916 So. 2d 926". scholar.google. Florida, United States.
56. Press, Associated (2 February 2007). "Court backs deadline for challenging paternity". Tampa Bay Times. Florida, United States.
57. Florida, Supreme Court of (1 February 2007). "SC05-2346 Parker v. Parker". 2007 Florida Supreme Court Decisions. Court Opinion. {{cite news}}: External link in |location= (help)CS1 maint: location (link)
58. Senate, Florida (20 June 2006). "Florida Statutes, Title 43, Ch.742, Sec.18". 2012 Florida Statutes. Florida, United States.
59. Richey, Warren (9 February 2007). "Dad wasn't dad after all, but still owes child support". Christian Science Monitor. Florida, United States.
60. Iowa, Supreme Court of (1 June 2012). "Dier v. Peters". scholar.google. Iowa S.C., United States.
61. Tennessee, Supreme Court of (1 October 2012). "Craig v. Hodge". Tennessee State Court News. Tennessee S.C., United States.
62. Horner, Mark (6 December 2004). "Where's the Baby?". KOB-TV Eyewitness News. New Mexico, USA.
63. Jojola, Jeremy (10 September 2007). "Child support fraud case lands in 2 courtrooms". NBC News. United States.
64. Clip, TV News (1 August 2008). "Trevino pleads guilty to fraud, perjury". Clips Syndicate. NBC News, USA.
65. McElroy, Wendy (17 December 2004). "Agency Culpable in Child Support Scam". Fox News. New Mexico, United States.
66. Carlson, Carolyn (12 December 2004). "Ex-husband Paid $20,000 To Support Nonexistent Daughter". ABQ Journal. Albuquerque, New Mexico.
67. Joanna L. Grossman (October 16, 2012). "When Your Daddy Is Not Really Your Daddy: A Man Successfully Sues His Ex-Wife for Paternity Fraud Damages". Justia.Com. Retrieved October 16, 2012.
68. "Tina Marie Hodge v. Chadwick Craig M2009-00930-SC-R11-CV". Tennessee State Courts. October 1, 2012. Retrieved October 16, 2012.
69. Archive, News (1 June 2004). "Court:woman must pay husband for baby". Associated Press. South Korea. {{cite news}}: |first= has generic name (help)
70. Bernbaum, Brian (11 February 2009). "Woman Ordered To Pay For Having Another Man's Baby". CBS News. South Korea.
71. Smith, Graham (18 February 2009). "Adulterous woman ordered to pay husband £177,000 in moral damages". Daily Mail. Spain.
72. Topics, News (18 February 2009). "Adulterous Spanish woman told to pay husband €200,000 in damages". The Telegraph. Spain. {{cite news}}: |first= has generic name (help)

External links

• Template:DMOZ

• Child support
• Fathers' rights
• Children's rights
• Family law
• Paternity
• Reproductive rights
• Fraud