Paternity Fraud - When a mother lies about who the child's real father is

2012-02-16 15:46

Who’s your real daddy? – Paternity Fraud

A couple of months ago the KCTV television network in Kansas City in the United States ran a story of a priest of the Catholic Church who fathered a child of another man’s wife and how the husband was suing the area Catholic Diocese, alleging that the Catholic Church covered up sexual misconduct between the priest and the man's wife. The husband learned last year on his son's birthday that the son he had raised was actually fathered by the priest about five years earlier and alleged that church officials committed fraud and kept silent about the sexual misconduct.

A week ago associated press ran a story of a man by the name of Eric Fischer who had grown suspicious of whether he was really the father of his youngest daughter. He secretly got a sample of the girl's hair, took one from his own head and sent them to a lab for DNA testing, he was right. The girl was the product of a love affair between his wife and her business partner. Now, five years later, a State Supreme Court in the USA has ruled that Fischer could proceed with a lawsuit demanding that the girl's biological father pay him $190,000 half the cost of raising her. DNA tests are increasingly accessible to suspicious fathers and when those suspicions are confirmed, the idea of repayment raises complicated questions about what's in the best interest of the child that is caught in the middle.

In a recent case dealt with in South Africa two people were convicted for submitting the wrong blood samples to a Doctor to determine paternity of a child. In this case the accused tampered with blood samples in an endeavour to show that the accused was not the child’s father.

Paternity fraud can be described as a paternal discrepancy, in which a mother names a man to be the biological father of a child, for self-interest, when she knows that he is indeed not the biological father.

There are many potential victims in paternity fraud cases, these victims include: the non-biological father who pays erroneously maintenance, the child that is deprived of a relationship with his/her biological father, and the biological father who is deprived of a relationship with his child. Extended victims include the child’s and the non-biological father’s families. In particular, financial hardship may have resulted for the non-biological father’s due to the maintenance and child support that he pay as well as the effect thereof on his other children and spouse in cases in which the man was forced to make maintenance payments for another man’s child.

In Australia, mothers are now being forced to pay back thousands of dollars to men they wrongly claimed fathered their children following a contentious reform of child support laws.

In the UK, single mothers are deliberately naming the wrong man as the father of their child when making maintenance claims. Child Support Agency figures show that nearly one in five of the contested paternity claims it handled a year ago cleared the man originally named as the father. The figures for 2007-2008, obtained under the freedom of information rules, show that out of 3,474 DNA paternity tests ordered, 19% named the wrong man.

In the United States it is estimated that almost 30% of DNA paternity tests, excluded the man as the father of the child in question.

The South African Children’s Act confirms in Section 36 a presumption in respect of a child born out of wedlock (parties who were not married to each other). The presumption is that the person whom had sexual intercourse with the mother at any time when that child could have been conceived will be presumed to be the biological father of the child in the absence of evidence to the contrary which raises reasonable doubt.

A question that arises is whether someone can be forced to undergo a paternity test. Most recently in YM v LB the South African Supreme Court of Appeal had been given an opportunity to provide judicial clarity on the law relating to court-ordered blood testing of potential parents refusing to voluntary submit themselves (and/or the minor child) to such testing, but the Court most unfortunately elected to side-step the issue based on the facts of the matter.

It is not suggested that the court was necessarily wrong in its final decision, but it was hoped that it would provide guidelines as to this issue of compelling adults and children to undergo blood tests to determine paternity.

The true biological paternity of a child is of the utmost importance in South Africa children’s law as it determines the parental responsibilities and rights of parties, including contact, care and the duty to maintain the child until the child becomes self-supporting.

Unfortunately, it is not unknown for a woman to lie about whom she had intercourse with, resulting in two legal consequences:

(a)   the husband is legally regarded as the father of the child with the accompanying rights and obligations; and

(b)  the biological father is denied his parental rights and responsibilities that he may have had or have obtained automatically vis-à-vis his biological child.

In YM v LB, the Supreme Court of Appeal found that where the paternity of the child has been shown on a balance of probabilities, scientific tests on a child should not be ordered. In this matter paternity was not really in dispute as both parties (at various times before the attorneys joined the show) believed that the man in question was the father of the child. The mother’s maternity was obviously never in doubt.

The court made the following observations:

(a)          that as paternity is determined on a balance of probabilities, the man is not entitled to demand scientific proof;

(b)          that in relevant instances, the court has the inherent power as upper guardian of all minor children to order such tests if it is in the best interests of the child.

The basis of a paternity matter is that the applicant will have to show that such a test would be in the best interest of the child. This in itself is extremely difficult as there seems to be no research done in South Africa as to the impact on a child that learns, at a much later stage, that his/her presumed father was not the biological father. One may argue that paternity testing may have a negative short-term impact on the family as it may reveal relationships that were previously unknown. In disputed paternity claims the emotional trauma of uncertainty definitely taints the relationships between the parents and sometimes also the relationships between the probable father and the child.

Trauma such as this can be easily be resolved through testing.

It is impossible to accurately estimate just how widespread paternity fraud is. One may assume that there are a plethora of men in South Africa who are currently raising another man’s child; blissfully unaware of the devastating truth. For each of these men, the truth will only be revealed if the woman who duped them decides to confess, or for some reason, a paternity test is taken.

A real problem however is to compel someone to undergo such a test in legal terms as evidenced by the cases dealt with above. It remains to be seen how our courts will deal with this issue in future. Fact is that naming the wrong father, could result in criminal prosecution, if proven that the mother concealed the truth deliberately.

Want to publish your reaction to this blog or share your views? Click here.

Bertus Preller

Family Law Attorney

Abrahams and Gross Inc.

Twitter: @bertuspreller

Web: http://www.divorceattorney.co.za

 Facebook: https://www.facebook.com/divorceattorneys

Tel: 021 422 1323

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