| Family law |
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| Family |
Paternity fraud is one form of misattributed paternity [1] or paternal discrepancy. [2] Specifically, paternity fraud is the intentional misidentification of a child's biological father by its mother. [3] Paternity fraud is distinct from other, unintentional misattribution, which may arise from simple error, an accident such as a mix-up during fertility treatment, or a sexual assault.
Research published in 2016 indicated that up to two percent of British fathers unknowingly raising a child who is the biological child of another man. [4]
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%). [5] However, as many of the studies were conducted between the 1950s and the 1980s, numbers may be unreliable due to the inaccuracies of genetic testing methods and procedures used at the time. Studies ranging in date from 1991 to 1999 quote the following incidence rates: 11.8% (Mexico), 4.0% (Canada), 2.8% (France), 1.4% and 1.6% (UK), and 0.8% (Switzerland). [5] These numbers suggest that the widely quoted and unsubstantiated figure of 10% of non-paternal events is an overestimate. However, 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%). [6] [7] [8] Most at risk were those born to younger parents, to unmarried couples and those of lower socio-economic status, or from certain cultural groups. [6]
A 2008 study in the United Kingdom found that biological fathers were misidentified 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 misidentified the biological father; data about why mothers identified the wrong biological father were not available. [6]
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. [9] 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. [10] This ruling was in turn then appealed with the High Court of Australia. [11]
In 2006, Australia's High Court struck down the appeal, upholding the 2005 Victorian Court of Appeal ruling. [12] 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." [13] 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. [14]
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. [15] 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. [16]
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. [17] 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. [18]
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." [19]
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. [20] [21]
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. [22]
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. [23]
If a mother deliberately gives false information to the authorities, which contributes to the erroneous establishment of paternity, she may be fined. [24]
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. [25]
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.
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. [27] A mother is permitted to not state the name of the biological father if she does not know it. [28] Paternity fraud is a form of misattributed paternity. [28]
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. [29]
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". [30]
In 2019, the unnamed former wife of Richard Mason was ordered to pay him £250,000 in compensation for paternity fraud. Mason discovered that he could not have fathered his three grown up children after being diagnosed with cystic fibrosis, meaning he had been infertile since birth. [31]
In 2021, a man from Kingston upon Hull who had already paid £38,000 in child maintenance payments discovered that he was not the father of the girl he had been led to believe was his daughter by his ex-girlfriend and had helped raise for 14 years. The Child Maintenance Service agreed to suspend future payments, but still held him liable for his £2000 arrears. After public outcry and intervention from his local MP Emma Hardy, the CMS reviewed the case and agreed to waive his arrears. [32]
The United States has historically imposed a strong presumption of 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. [33]
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[ clarification needed ] 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. [34] [35]
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. [36] 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. [37]
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. [38] 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. [39]
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. [40] 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. [41] That request was later denied by the California Supreme Court. [42]
In 2002, California Governor Gray Davis vetoed a proposed Paternity Justice Act, which would have provided more protection for victims of Paternity Fraud, citing that the bill could cost the state $40 million in federal funding. [43] 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. [44] [45]
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. [46] The motion was 16 months after their divorce, Florida law (at that time) only allowed the husband 12 months to contest paternity following divorce. [47] 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. [48]
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. [49] 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. [50]
Because the basic facts are little questioned and the case explores differences between extrinsic and intrinsic fraud, other state Supreme Courts, including Iowa [51] and Tennessee, [52] 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." [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]
Medical
Legal
Social
A father is the male parent of a child. Besides the paternal bonds of a father to his children, the father may have a parental, legal, and social relationship with the child that carries with it certain rights and obligations. A biological father is the male genetic contributor to the creation of the infant, through sexual intercourse or sperm donation. A biological father may have legal obligations to a child not raised by him, such as an obligation of monetary support. An adoptive father is a man who has become the child's parent through the legal process of adoption. A putative father is a man whose biological relationship to a child is alleged but has not been established. A stepfather is a non-biological male parent married to a child's preexisting parent, and may form a family unit but generally does not have the legal rights and responsibilities of a parent in relation to the child.
A parent is either the progenitor of a child or, in humans, it can refer to a caregiver or legal guardian. The gametes of a parent result in a child, a male through the sperm, and a female through the ovum. Parents are first-degree relatives and have 50% genetic meet. A female can also become a parent through surrogacy. Some parents may be adoptive parents, who nurture and raise an offspring, but are not biologically related to the child. Orphans without adoptive parents can be raised by their grandparents or other family members.
Child support is an ongoing, periodic payment made by a parent for the financial benefit of a child following the end of a marriage or other similar relationship. Child maintenance is paid directly or indirectly by an obligor to an obligee for the care and support of children of a relationship that has been terminated, or in some cases never existed. Often the obligor is a non-custodial parent. The obligee is typically a custodial parent, a caregiver, or a guardian.
Paternity law refers to body of law underlying legal relationship between a father and his biological or adopted children and deals with the rights and obligations of both the father and the child to each other as well as to others. A child's paternity may be relevant in relation to issues of legitimacy, inheritance and rights to a putative father's title or surname, as well as the biological father's rights to child custody in the case of separation or divorce and obligations for child support.
DNA paternity testing is the use of DNA profiles to determine whether an individual is the biological parent of another individual. Paternity testing can be especially important when the rights and duties of the father are in issue and a child's paternity is in doubt. Tests can also determine the likelihood of someone being a biological grandparent. Though genetic testing is the most reliable standard, older methods also exist, including ABO blood group typing, analysis of various other proteins and enzymes, or using human leukocyte antigen antigens. The current techniques for paternity testing are using polymerase chain reaction (PCR) and restriction fragment length polymorphism (RFLP). Paternity testing can now also be performed while the woman is still pregnant from a blood draw.
Deadbeat parent is a pejorative term referring to parents who do not fulfill their parental responsibilities, especially when they evade court-ordered child support obligations or custody arrangements. They are also referred to as absentee fathers and mothers. The gender-specific deadbeat father and deadbeat mother are commonly used to refer to people who have parented a child and intentionally fail to pay child support ordered by a family law court or statutory agency such as the Child Maintenance Service.
The Baby Richard case was a highly publicized custody battle that took place over Danny Kirchner, a young child whose adoption was revoked when his biological father, Otakar Kirchner, won custody in a case that was decided in 1995 by the Illinois Supreme Court. The child became known as "Baby Richard" in widespread media coverage.
The Dannielynn Hope Marshall Birkhead paternity case, a.k.a. Birkhead v. Marshall, was a high-profile legal battle that revolved around the paternity of Anna Nicole Smith's daughter, Dannielynn. Larry Birkhead, Smith's former love interest, filed a lawsuit against Howard K. Stern, Smith's live-in partner who was listed as the father on the birth certificate, seeking to establish his paternity rights. Dannielynn stood to inherit a substantial fortune if Smith's estate succeeded in its ongoing legal battle to claim inheritance from her late husband, an affluent oil tycoon. Given its significant implications and media coverage, the case involved various legal proceedings and garnered substantial public attention. G. Ben Thompson, a former boyfriend of Smith's who worked as a real-estate developer in South Carolina, claimed that pregnant Smith approached him to inform him that he was the father of her unborn child, but he balked telling Smith that was impossible because he had a vasectomy.
Aetna Health Inc. v. Davila, 542 U.S. 200 (2004), was a United States Supreme Court case in which the Court limited the scope of the Texas Healthcare Liability Act (THCLA). The effective result of this decision was that the THCLA, which held Case Management and Utilization Review decisions by Managed Care entities like CIGNA and Aetna to a legal duty of care according to the laws of The State of Texas could not be enforced in the case of Health Benefit plans provided through private employers, because the Texas statute allowed compensatory or punitive damages to redress losses or deter future transgressions, which were not available under ERISA § 1132. The ruling still allows the State of Texas to enforce the THCLA in the case of Government-sponsored (Medicare, Medicaid, Federal, State, Municipal Employee, etc., Church-sponsored, or Individual Health Plan Policies, which are saved from preemption by ERISA. The history that allows these Private and Self-Pay Insurance to be saved dates to the "Interstate Commerce" power that was given the federal Government by the Supreme Court. ERISA, enacted in 1974, relied on the "Interstate Commerce" rule to allow federal jurisdiction over private employers, based on the need of private employers to follow a single set of paperwork and rules for pensions and other employee benefit plans where employers had employees in multiple states. Except for private employer plans, insurance can be regulated by the individual states, and Managed Care entities making medical decisions can be held accountable for those decisions if negligence is involved, as allowed by the Texas Healthcare Liability Act.
Nguyen v. INS, 533 U.S. 53 (2001), was a United States Supreme Court case in which the Court upheld the validity of laws relating to U.S. citizenship at birth for children born outside the United States, out of wedlock, to an American parent. The Court declined to overturn a more restrictive citizenship requirement applying to a foreign-born child of an American father and a non-American mother who was not married to the father, as opposed to a child born to an American mother under similar circumstances.
Extrinsic fraud is fraud that induces one not to present a case in court or deprives one of the opportunity to be heard or is not involved in the actual issues. More broadly, it is defined as:
fraudulent acts which keep a person from obtaining information about his/her rights to enforce a contract or getting evidence to defend against a lawsuit. This could include destroying evidence or misleading an ignorant person about the right to sue. Extrinsic fraud is distinguished from intrinsic fraud, which is the fraud that is the subject of a lawsuit.
In the United States of America, the putative father registry is a state level legal option for unmarried men to document through a notary public any woman they engage with in intercourse, for the purpose of retaining parental rights for any child they may father.
Until 2017, laws related to LGBTQ+ couples adopting children varied by state. Some states granted full adoption rights to same-sex couples, while others banned same-sex adoption or only allowed one partner in a same-sex relationship to adopt the biological child of the other. Despite these rulings, same-sex couples and members of the LGBTQ+ community still face discrimination when attempting to foster children.
Adoptive Couple v. Baby Girl, 570 U.S. 637 (2013), was a decision of the Supreme Court of the United States which held that several sections of the Indian Child Welfare Act (ICWA) do not apply to Native American biological fathers who are not custodians of a Native American child. The court held that the procedures required by the ICWA to end parental rights do not apply when the child has never lived with the father. Additionally, the requirement to make extra efforts to preserve the Native American family also does not apply, nor is the preferred placement of the child in another Native American family required when no other party has formally sought to adopt the child.
Forced fatherhood or imposed paternity, occurs when a man becomes a father against his will or without his consent. It can include deception by a partner about her ability to get pregnant or use of contraceptives, birth control sabotage, paternity fraud and sexual assaults of males that result in pregnancy.
Recognition is the process in some jurisdictions whereby a man is recognised as the father of a child in situations of no presumption of paternity, generally because the mother is unwed. Historically, the Roman law principle of mater semper certa est causes the action was not available to mothers, but the introduction of in-vitro fertilisation has changed that to change. Recognition is an act that confers legitimacy on the child.
Chafin v. Chafin, 568 U.S. 165 (2013), was a United States Supreme Court case in which the Court held the appeal of a district court's decision to return a child to his country of residence is not precluded by the child's departure from the United States. It arose from the divorce proceedings of Mr. and Ms. Chafin; she wanted their daughter to live with her in Scotland, while he wanted her to remain in the United States with him.
Fertility fraud is the failure on the part of a fertility doctor to obtain consent from a patient before inseminating her with his own sperm. This normally occurs in the context of people using assisted reproductive technology (ART) to address fertility issues.
Donald Lee Cline is a former American medical doctor of obstetrics and gynecology and convicted felon. Between 1974 and 1987, Cline sired over 90 children without disclosing himself as the sperm donor to his patients. As of May 11, 2022, Cline has been confirmed as the biological father of 94 doctor-conceived offspring.
Michael H. v. Gerald D., 491 U.S. 110 (1989), was a case decided by the Supreme Court of the United States involving substantive due process in the context of paternity law. Splitting five to four, the Court rejected a challenge to a California law that presumed that a married woman's child was a product of that marriage, holding that the due-process rights of a man who claimed to be a child's biological father had not been violated.
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