Paternity fraud

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.[8] 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 children's paternity.[9] This ruling was in turn then appealed with the High Court of Australia.[10]

In 2006 Australia's High Court struck down the appeal, upholding the 2005 Victorian Court of Appeal ruling.[11] 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."[12] 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.[13]

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.[14] 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.[15]

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 child support for the twins.[16] Shortly afterwards Ms. Cornelio requested a reduction in visitation time along with an increase in support payments. Mr. Cornelio became suspicious of 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 child support, claiming to be the victim of misrepresentation or fraud when Ms. Cornelio failed to disclose the extramarital affair when he signed the 2002 joint custody agreement.[17]

The Ontario Superior Court of Justice in 2008 ruled against the request to be excused or reimbursed for child support payments. Judge van Rensburg, in deciding to deny the request, noted that 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."[18]

The default in Finnish law as of 2018 is that the husband is the acknowledged father of the child who is born into wedlock (or to a deceased husband). Only if the wife agrees, can that initial determination be set to something else. However, from 2016 the general right the mother to solely allow or prevent the parental investigation was abolished. The default and immediately forcing juridical assumption of paternity of a husband was not changed in the latest 2015 act.

A man can bring up a later legal action to annul his paternity, disregarding of the resistance of his wife. The legal action for annulment may be brought in the district court by a man whose paternity has been determined on the basis of either marriage or by some other authoritative decision. However, the ruling of the court can be pretty much anything and the UN declaration of children's rights are not followed.[19][20]

A man who has officially acknowledged paternity relinquishes his rights to further actions if he, knowing the woman had a sexual intercourse with another man, or that she has used foreign sperm for fertilization, has stated in writing following birth of the child that the child is biologically his.[21]

Otherwise legally binding prebirth acknowledgment of a man must be rejected, if either the health care staff of the child supervisor do have a founded suspicion that the man is not a father of the child, or he is for any reason not capable to understand what he is doing when acknowledging the paternity.[22]

If a mother deliberately gives false information to the authorities, which contributes to the erroneous establishment of paternity, she may be fined.[23]

In 2004, a South Korean man was awarded $42,380 compensation for pain and suffering when a DNA test established that his ex-wife's paternity claim regarding their child was misattributed. When Mr. Doe, who had married Ms. Doe based on her paternity claim, began a lawsuit against a hospital for switching his child at birth, Ms. Doe claimed to having been pregnant with another man's baby.[24]

On 5 January 2015, the Federal Supreme Court of Switzerland (decision 5A_619 of 2015[25]) decided on a case wherein a plaintiff challenged the paternity of his (alleged) daughter. The plaintiff had his sperm examined in November 2009. As a result of the examination, the plaintiff’s fertility was found to be 3%. The court contended that the alleged father should have started investigating his paternity as a consequence of that finding. The plaintiff actually had his non-paternity confirmed via DNA evidence in 2013 upon failure of his marriage. The court held that the one year time limit under Swiss civil code article 260c for filing an action lapsed due to the plaintiff’s (the alleged father’s) inactivity for more than two years. The Federal Supreme Court of Switzerland thus confirmed the ruling by the first instance and dismissed the appeal. It follows that the plaintiff’s financial obligations as to his (alleged) daughter will not change.

In the United Kingdom, paternity fraud, like adultery, is not a criminal offence[2] except in the case of the lineage of the children of the British monarch under the Treason Act 1351 where the adulterers are punishable as adultering against the lineage of the King with the King's "companion, ... or the wife of the King's eldest son and heir". Knowingly making a false statement on a public document is a criminal offence, including naming someone who is not the biological father. As of 2008, no individual has been prosecuted in a case involving paternity fraud.[26] A mother is permitted to not state the name of the biological father if she does not know it.[27] Paternity fraud is a form of misattributed paternity.[27]

The split in 2002 between a couple, identified for legal reasons as 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 of up to £100,000 as a result of the deceit.[28]

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".[29]

The United States has historically imposed a strong presumption of marital paternity and has also imposed barriers to paternity challenges once paternity has been legally established. Since the advent of DNA testing, laws and guidelines have been proposed or enacted that may allow for a paternity challenge by a legal father who later determines he is not a child's biological father, or by a biological father who learns that somebody else has been named on a child's birth certificate as the child's father.[30]

Paternity fraud activist Carnell Smith has raised awareness about the problem of men paying child support for children that aren't theirs. He has successfully lobbied the Georgia state legislature to expand the time frame in which paternity tests could be administered.

Mandatory paternity testing is available in Georgia and is necessary in order to obtain a child support order in the state, the law differentiates between legitimacy and paternity and child support orders can only be ordered after a paternity test.[31][32]

In the case of County of Los Angeles v. Navarro, in 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.[33] 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", a notice Mr. Navarro denied ever receiving.[34]

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.[35] 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.[36]

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.[37] 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.[38] That request was later denied by the California Supreme Court.[39]

In 2004, California Governor Arnold Schwarzenegger signed in to law AB 252, which allows men who prove they are not the biological father more resources to fight paying child support; the law expired in 2007.[40][41]

In the case of 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.[42] The motion was 16 months after their divorce, Florida law (at that time) only allowed the husband 12 months to contest paternity following divorce.[43] 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.[44]

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.[45] In its 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 consider 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.[46]

Because the basic facts are little questioned and the case explores differences between extrinsic and intrinsic fraud, other state Supreme Courts, including Iowa[47] and Tennessee,[48] have cited Parker v. Parker when writing opinions of their own for paternity fraud type cases.

In 2012 the Iowa Supreme Court in ruling to allow a paternity fraud tort to proceed as it "fits comfortably within the traditional boundaries of fraud law.", and that "It is supported by common law standards for fraud and is not contrary to public policy or the statutory policy of this state." [49]

In the case of 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 until 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.[50] Ms. Trevino pleaded guilty in 2008 to charges of fraud and perjury, and was sentenced to twenty-one years in prison. Trevino served 16 months in federal prison in Arizona for claiming the non-existent girl on tax returns.[51]

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.[52] 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.[53]

In the case of 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 he obtained a tissue sample and confirmed his suspicions. Damages were awarded in compensation for child support paid for 15 years.[54] 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.[55]