Paternity fraud

Paternity fraud, also known as child identity fraud,[1] misattributed paternity[2] or paternal discrepancy,[3] is a type of fraud that occurs when, in a non-paternity event, a mother names a man to be the biological father of a child, when she knows or suspects that he is not the biological father. Paternity fraud is not a criminal offence in the United Kingdom[3] although making a false statement on a public document is. As of 2008 nobody had been prosecuted in a case involving paternity fraud.[4] A mother is permitted to not state the name of the biological father if she does not know it.[5] Paternity fraud is a form of misattributed paternity.[5]

New laws and guidelines have been proposed or enacted aided in part, or in reaction to, publicity raised by father's rights groups, especially since the advent of DNA testing.[6][7] The term has been given significant coverage by US activists and authors Tom Leykis,[8] Ned Holstein[9] and Glenn Sacks.[9][10]

Occurrence

Research published in 2016 indicated that one in 50 British fathers is raising a child which he thinks is his own but actually is the biological child of another man, and whose birth reflects the high incidence of female infidelity, between 5 and 27% in women under 30.[11]

A 2005 scientific review of international published studies of paternal discrepancy found a range in incidence, around the world, from 0.8% to 30% (median 3.7%).[12] However, as many of the studies were conducted between the 1950s and the 1980s, some numbers may not be reliable due to inaccuracies in the scientific testing methods and procedures used at the time. The latest studies, ranging in date from 1991 to 1999, quote the following incidence rates: 4.0% (Canada), 2.8% (France), 1.4% and 1.6% (UK), and 11.8% (Mexico), 0.8% (Switzerland).[12] These numbers suggest that the widely quoted and unsubstantiated figure of 10% of non-paternal events is an overestimate. However, this number may have been inaccurately circulated due to the following: in studies that solely looked at couples who obtained paternity testing because paternity was being disputed, there are higher levels; an incidence of 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.[13]

A 2008 study in the United Kingdom found that fathers were wrongly identified in 0.2% (1 in 500) of the cases processed by the Child Support Agency. Of that 0.2%, those resolved with DNA paternity testing between 2004 and 2008 showed that between 10 and 19% of mothers had deliberately named the wrong father; none of the women were prosecuted.[13]

In 2012 the Iowa Supreme Court in ruling to allow a paternity fraud tort to proceed as they fall "within the traditional boundaries of fraud law", but advised caution in bringing cases, as they would be "hard to prove, emotional and embarrassing".[14]

Cases by country

Australia

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.[15] 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.[16] This ruling was in turn then appealed with the High Court of Australia.[17]

In 2006 Australia's High Court struck down the appeal, upholding the 2005 Victorian Court of Appeal ruling.[18] 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."[19] 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.[20]

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.[21] 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.[22]

Canada

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.[23] 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.[24]

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."[25]

Switzerland

On 5 January 2015, the Federal Supreme Court of Switzerland (decision 5A_619 of 2015[26]) 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.

United Kingdom

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.[27]

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".[28]

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.[29] 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.[30]

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.[31] 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.[32]

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.[33] 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.[34] 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.[35] The motion was 16 months after their divorce, Florida law (at that time) only allowed the husband 12 months to contest paternity following divorce.[36] 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.[37]

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.[38] 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.[39]

Because the basic facts are little questioned and the case explores differences between extrinsic and intrinsic fraud, other state Supreme Courts, including Iowa[40] and Tennessee,[41] 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 until then paid $20,000 support to Ms. Trevino for did not actually exist.[42] 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.[43] 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.[44]

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.[45] 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.[46]

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 he obtained a tissue sample and confirmed his suspicions. Damages were awarded in compensation for child support paid for 15 years.[47] 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.[48]

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.[49]

See also

Medical
Paternity testing
Medical ethics
DNA profiling
Non-paternity event
Genealogical DNA test
Reproductive rights
 
Legal
Equitable fatherhood
Lord Mansfield's Rule
Paternity (law)
List of country legal systems
U.N. Convention on the Rights of the Child
Tort
Civil law
Common law
Reproductive coercion
Putative father registry
 
Social
Shared parenting
Men's rights
Men's movement
Fathers' rights movement
Virginity fraud
Female promiscuity

References

  1. ↑ What is Paternity Fraud?
  2. ↑ Paternity fraud and compensation for misattributed paternity Published by the Journal of Medical Ethics August 2007, pages 475-480
  3. 1 2 Should we be doing more to expose paternity fraud? Published in The Telegraph, 4 September 2015
  4. ↑ DNA testing: One in 500 fathers wrongly identified by mothers in Child Support Agency claims Published in The Guardian, 1st August 2008
  5. 1 2 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.
  6. ↑ Rawe, Julie (19 January 2007). "Duped Dads Fight Back". Time Magazine (United States).
  7. ↑ Lake, Richard (8 December 2003). "Movement targets `paternity fraud'". Review-Journal (Las Vegas, Nevada).
  8. ↑ Paternity Fraud by Tom Leykis
  9. 1 2 "Ned Holstein and Glenn Sacks: Bill would give 'duped dads' some fairness under the law". dailynews.com. 1 June 2011. Retrieved 18 March 2013.
  10. ↑ Ruttenberg, Cecily (19 July 2006). "Who's Your Daddy?". MetroActive (California, USA).
  11. ↑ One in 50 British fathers unknowingly raises another man's child Published by The Telegraph, April 6, 2016
  12. 1 2 Bellis MA, Hughes K, Hughes S, Ashton JR (September 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.
  13. 1 2 Wintour, Patrick (31 July 2008). "One in 500 fathers wrongly identified by mothers in Child Support Agency claims". The Guardian (United Kingdom).
  14. ↑ "Iowa court allows paternity-fraud lawsuit". Telegraph Herald (Dubuque, Iowa). Associated Press. 2 June 2012.
  15. ↑ Archive, News (9 November 2006). "Paternity fraud 'dad' loses appeal". The Age (Australia).
  16. ↑ Gregory, Peter (18 March 2005). "Appeal blow for man who paid maintenance for another's children". The Age (Australia).
  17. ↑ "Dad loses child support case". The Sydney Morning Herald (Australia). Australian Associated Press. 31 October 2006.
  18. ↑ Australia, High Court of (9 November 2006). "Magill v Magill". Aust LII (AUS).
  19. ↑ Cummings, Larissa (11 November 2006). "Where are honesty and justice?". The Daily Telegraph (Australia).
  20. ↑ Broadcasting Corporation, Australian (11 November 2006). "High Court rejects father's deceit claim". ABC News (Australia).
  21. ↑ News, Australian (16 November 2006). "DNA test rights proposed for duped dads". The Australian (Australia).
  22. ↑ Bissett, Kelvin (11 November 2008). "Paternity tests prove hundreds of men duped". The Telegraph (Australia).
  23. ↑ Makin, Kirk (9 April 2009). "Man who didn't father twins must pay child support". The Globe and Mail (Canada).
  24. ↑ Yutangco, Precious (8 January 2009). "Man must pay support though twins not his". The Toronto Star (Canada).
  25. ↑ Ontario, Superior Court of Justice (22 December 2008). "Cornelio v. Cornelio, 2008 CanLII 68884 (ON SC)". Ontario, Canada.
  26. ↑ Herzog, Sabine (9 February 2015). "5A_619/2014: Berechnung der einjährigen Frist zur Anfechtung der Vaterschaftsanerkennung" [Calculation of the one-year period for contesting paternity recognition]. swissblawg.ch (in German). Retrieved 23 March 2015.
  27. ↑ Iggulden, Amy (4 April 2007). "Lover must pay broker for claiming son was his". The Telegraph (London, United Kingdom).
  28. ↑ McVeigh, Karen (3 April 2007). "Stockbroker wins £22,000 damages for paternity deceit". The Guardian (London, United Kingdom).
  29. ↑ Appeal, Court of (30 June 2004). "County of Los Angeles v. Navarro". scholar.google (California, United States).
  30. ↑ McElroy, Wendy (14 July 2004). "Paternity: Innocence Is Now a Defense". Fox News (United States).
  31. ↑ "Law aids paternity fraud victims". Washington Times (United States). 15 January 2005.
  32. ↑ 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). External link in |work= (help)
  33. ↑ Writer, Staff (18 August 2004). "Court asked to ‘depublish’ child-support ruling". Washington Times (United States).
  34. ↑ Carmel, Sileo (1 November 2004). "California agency will seek to depublish paternity ruling". American Association for Justice (Trial Magazine).
  35. ↑ Fourth District., Florida Court of Appeal (30 November 2005). "Parker v. Parker, 916 So. 2d 926". scholar.google (Florida, United States).
  36. ↑ "Court backs deadline for challenging paternity". Tampa Bay Times (Florida, United States). Associated Press. 2 February 2007.
  37. ↑ Florida, Supreme Court of (1 February 2007). "SC05-2346 Parker v. Parker". 2007 Florida Supreme Court Decisions (Court Opinion).
  38. ↑ Senate, Florida (20 June 2006). "Florida Statutes, Title 43, Ch.742, Sec.18". 2012 Florida Statutes (Florida, United States).
  39. ↑ Richey, Warren (9 February 2007). "Dad wasn't dad after all, but still owes child support". Christian Science Monitor (Florida, United States).
  40. ↑ Iowa, Supreme Court of (1 June 2012). "Dier v. Peters". scholar.google (Iowa S.C., United States).
  41. ↑ Tennessee, Supreme Court of (1 October 2012). "Craig v. Hodge". Tennessee State Court News (Tennessee S.C., United States).
  42. ↑ Horner, Mark (6 December 2004). "Where's the Baby?". KOB-TV Eyewitness News (New Mexico, USA).
  43. ↑ Jojola, Jeremy (10 September 2007). "Child support fraud case lands in 2 courtrooms". NBC News (United States).
  44. ↑ "Trevino pleads guilty to fraud, perjury". Clips Syndicate (NBC News, USA). 1 August 2008.
  45. ↑ McElroy, Wendy (17 December 2004). "Agency Culpable in Child Support Scam". Fox News (New Mexico, United States).
  46. ↑ Carlson, Carolyn (12 December 2004). "Ex-husband Paid $20,000 To Support Nonexistent Daughter". ABQ Journal (Albuquerque, New Mexico).
  47. ↑ Joanna L. Grossman (16 October 2012). "When Your Daddy Is Not Really Your Daddy: A Man Successfully Sues His Ex-Wife for Paternity Fraud Damages". Justia.Com. Retrieved 16 October 2012.
  48. ↑ "Tina Marie Hodge v. Chadwick Craig M2009-00930-SC-R11-CV". Tennessee State Courts. 1 October 2012. Retrieved 16 October 2012.
  49. ↑ Bernbaum, Brian (11 February 2009). "Woman Ordered To Pay For Having Another Man's Baby". CBS News (South Korea).

External links

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