Reform, or is it?
On May 29, 2008, Colorado Governor Bill Ritter signed Senate Bill 08-183 Concerning the Effect of DNA Evidence On Child-Related Orders. The act will take effect on August 15, 2008. Under prior Colorado law once a paternity judgement or final orders in a divorce had been entered regarding child support a man was required to continue paying regardless of what later genetic evidence revealed.
Getting some relief for paternity fraud victims in Colorado has been a six-year struggle and has resulted in twelve EJF newsletters on the topic of Condoning Slavery Under Color of Law.
State Senator Shawn Mitchell deserves much credit for sponsoring this bill and getting it through the Colorado Senate. We have been harshly critical of Senator Mitchell in the past on this issue but he has demonstrated both the intelligence and integrity to learn from his mistakes and try and help correct the problem.
Why is paternity fraud a problem?
- Since testing for paternity using genetic, or DNA evidence became widely available the laboratories doing such testing have consistently reported that ~30% of the men tested were not the fathers of the children in question. As of 2008 there are roughly 400,000 DNA tests done by laboratories yearly in the United States .
- Currently some 38% of children are borne out-of-wedlock nationally. Reportedly, two thirds of the children in California are now born to unwed mothers. Commonly in such cases the father is not present, is unknown (she was drunk or on drugs), or the mother had several sexual partners during her fertile period when the child was conceived.
- Evidence continues to mount that at least one third of married women have extramarital affairs ,making it impossible to assume a woman's husband is the father of her children.
- Child support enforcement (CSE) agencies have a widespread practice of arbitrarily selecting a man on flimsy or no evidence and imposing a default paternity judgement on him with little or no notice or proof. There are far too many cases of Manuel Nava becoming Manuel Navarro in the doltish hands of CSE bureaucrats eager to earn federal bonuses for making a man a "father" by judicial fiat.
- Only about 12 out of 100 children are born today to a couple who are legally married and remain so until their children reach majority.
Thus the potential for paternity fraud is huge and there is no penalty for a woman who commits it.
As a result there is a roughly one-in-three chance in a paternity case where the woman is asking for child support that the man named, either by the mother or CSE, is not the biological father of the child.
We also encounter far too many cases of married women using false allegations of domestic violence and restraining orders to keep their husbands away from the children when seeking child support in a divorce, often because she knows or suspects her husband is not the father. Again, our experience is that in contested cases where false allegations are used against the husband that there is about a one-in-three chance one or more of the kids aren't his.
Paternity fraud equals slavery
Slavery is defined as the state of a person who is a chattel of another and is a social-economic system under which certain persons - known as slaves - are deprived of personal freedom and compelled to work. Slaves are held against their will and are deprived of the right to leave, to refuse to work, or to receive compensation (such as wages) in return for their labor.
Clearly any man compelled by force to support a child that demonstrably is not seed of his loins, and imprisoned when he refuses, is a slave. Reasonable estimates suggest there are approximately 1.4-1.6 million men so enslaved in the United States today. This is an outrage that begs for redress, but dating back to 1857 in Dred Scott v Sanford, Plessy v Ferguson (1896), Korematsu v United States (1944), and continuing to the present day by forcing a man to pay child support to the biological father of his wife's child, the courts have historically supported slavery
As there is no punishment for a woman who commits paternity fraud, it is the perfect crime.
Remedies provided by SB08-183
As originally introduced, SB08-183 provided that if a man was able to find the mother and somehow get DNA testing done on the children that conformed to the requirements for genetic testing spelled out in Colorado Revised Statutes (CRS) § 13-25-126 showing that he was not the biological father, that an existing order for child support "shall be set aside or modified." No provision was made in the original bill for dismissing arrearages that might have accumulated, although no support was required from the date the motion for modification was filed if the modification was granted.
Provisions were included in the bill to exempt cases where the man knowingly accepted responsibility even though he wasn't the biological father, where he had adopted the child(ren), or the woman used artificial insemination to conceive.
That bill made it through the Colorado Senate intact but ran into problems in the House despite the able support of its sponsor in that chamber, Rep. Nancy Todd. The most egregious of the problems was an amendment introduced by Rep. Bob Gardner that leaves the determination of continuing a man's slavery to the discretion of the court. To wit, the child support order will only be modified or dismissed if, and only if "the court determines that it is just and proper under the circumstances and in the best interests of the child." As noted above, the courts have a long, sordid history of supporting slavery, and there can be little doubt that they will continue to do so today.
The "best interest of the child" has long been a feminist mantra as to why paternity fraud should be condoned and continued. However, other than emotional rhetoric, these sob sisters have never advanced an argument as to how enslaving a man will result in, or maintain a bond with a child he probably has never known, or whom he is prohibited from seeing by restraining orders or distance. I have addressed my outrage with this amendment previously and at a public meeting on June 3, 2008, I pointed out to Rep. Gardner that during his first term he had endorsed slavery, promoted adultery, and driven another nail in the coffin of marriage. I then asked him what he planned to do if he won a second term? To his credit he recognized the problem and pledged to address the issue of paternity fraud if reelected.
The final bill, as passed by the Colorado House, and reconciled in committee, does contain a provision that the court "...may vacate or deem as satisfied, in whole or in part, unpaid child support obligations arising from or based on the order determining parentage." But, again that is left to the kindness of the judge's discretion and it isn't at all clear whether that provision will conflict with the federal Bradley Amendment that does not allow judicial discretion in dismissal of child support obligations and arrearages.
While no assistance is offered a man to locate mother and child, whom he often has never heard of before CSE began garnishing his wages, he is only given two years from the entry of the original child support order in which to challenge it. It is not uncommon for CSE to take more than two years to find a man after a default paternity order is entered and this bill will give CSE an incentive to delay notification in some cases for two years and a day.
However, as SB08-183 was introduced in large measure at the behest of current victims of paternity fraud in Colorado, if their child support order was, or is entered prior to August 15, 2008, they have until August 15, 2010, to file a motion to modify or set aside their obligations if they can find the mother and chid(ren) and get a DNA paternity test done that satisfies the requirements of CRS § 13-25-126 (and lots of luck, slave).
Motions to modify child support in Colorado for children who are not yours can be filed anytime after August 15, 2008, when SB08-183 goes into effect.
Paternity determinations in the modern world
SB08-183 is at most a stopgap measure that provides some relief primarily for current victims. But paternity fraud is a crime that should not be allowed to happen, and the law should certainly not encourage it as it presently does.
What then would be desirable to prevent the continuation of these destructive practices that pit men against children to the detriment of all?
At present we have the worst of all worlds:
- Many mothers don't get the child support they need.
- Many women and children are placed in dire circumstances when their husband is hit with a bogus child support order.
- Many men are ordered to pay support for children that are not theirs and jailed when they don't.
- Many children are cut off from contact with their biological fathers, which often has dramatic negative effects on their mental and physical health.
- And CSE has built itself a massive and corrupt empire based on falsehoods from every side and frequently keeps child support money it collects for its own use.
The problem is to find a balance that ensures biological fathers will support their children while putting an end to the widespread practice of naming the man with the deepest pockets as "father," or enslaving cuckolded husbands to support their wife's adultery.
Standing
First, and foremost, in conformance with ancient principle paternity should be unchallenged by the courts or any other government agency for any reason. Today paternity usually goes unchallenged unless, and until the mother seeks child support. To preserve the principle is to say that only the mother of the child(ren) shall have standing to bring action for child support or to challenge paternity for any reason.
Experience with CSE makes it all too clear that those fumbling bureaucrats are all too willing to name any man as a father in order to reap incentives and bonuses from federal and state programs. Cases where a man sterile from birth is given a default judgement of child support, military men who are saddled with child support despite the fact they were deployed during the time conception occurred, cases where the child doesn't even exist, has died, or has been placed in foster care or adopted, but CSE still demands support payments are daily stories.
Thus, CSE should be limited to collections where a woman has won a court case for child support against a man and a DNA paternity test has conclusively demonstrated that he is the biological father.
Presumption of innocence
As noted above there is roughly a one-in-three chance that a man in a paternity case, or a contested divorce where custody is an issue, is not the biological father of one or more of the woman's children (if they exist).
Therefore, the law should require that no child support for any child be ordered unless and until genetic evidence proves beyond reasonable doubt that the man is the biological father, unless the man has formally adopted the child.
SB08-183 makes an exception for children conceived "by means of assisted reproduction." I would not make that exception in the law for the reason that "assisted reproduction" covers a multitude of methods that a woman may undertake with or without her partner's knowledge or consent. Thus, limits should be placed on support for children conceived by artificial insemination or other methods of "assisted reproduction." Before child support can be ordered in such cases it must be established in court that the man had prior knowledge and had given written, notarized consent to accept legal responsibility for any child(ren) resulting from such procedures. Using semen obtained from a friend, neighbor, or other donor should not entitle a woman to child support from her husband or lover without his knowledge and prior consent.
Note that this leaves unsettled the issue of whether a semen donor should later be liable for child support. I suggest such donors should be specifically excluded by statute from child support obligations unless they adopt the child(ren). And current terminology for "assisted reproduction" might easily include adultery with the wife banging a friend or neighbor to deliberately get pregnant.
Proof of existence
A number of cases have come to the attention of the EJF where the mother is collecting support for a child that never existed, has died, been placed in foster care, adopted, or given to other relatives. Also, cases where the woman is not the mother of the child for whom she is claiming support are known.
Therefore, when a woman files a claim for child support the first step should involve the court (a) determining the child(ren) exist and are in the custody and care of the mother, and (b) obtaining genetic evidence from the mother and the children under the conditions of CRS § 13-25-126 to establish their relationship. Once those conditions are satisfied the court would then order the man named in the case to submit to a genetic test, again under CRS § 13-25-126, to prove his relationship, or lack thereof with the child(ren). That leaves the question of paternity undisturbed unless, and until a mother brings action in court on her own behalf and of her own volition.
That would also bring to an end the default paternity judgements that range from a minimum of 30% to 70-80% of all such orders, and that are so beloved and useful to the CSE agents of tyranny in collecting their incentives and bonuses. Currently all CSE need do in many cases is name a man, any man, in any state, get a default judgement, and that man wins "fatherhood" with little or no recourse. And his wages are automatically garnished, which is often the first time he is aware that he is a "father."
Another necessary requirement is for CSE to periodically, e.g., once a year, verify the mother still has the child(ren) in her care and custody. When and where that cannot be confirmed child support payments should automatically stop. Too often mom fobs the kids off on some relative, usually a grandmother, and keeps the child support to support her drug and alcohol problems. Child support payments used to pay for meth don't benefit anyone. And since more than one woman has claimed child support in multiple states , and from different men, for the same child(ren), CSE should be charged with comparing claims with other states as well as internally.
Father/child(ren) bonding
Consistently the feminist presentation for keeping men enslaved and paying support for children proven not to be theirs, and too often the result of the man's wife's adultery, is that relieving him of child support would destroy the father/child bond. That claim is fallacious on many levels but if the bond between a man and a child is so important then, at a minimum, shared parenting between a biological father and his child(ren) must be enshrined in the law with penalties comparable to non-payment of child support for interference with visitation.
Also, it is the experience of the Equal Justice Foundation that many men bond very closely with children they have not sired. The problem here is with the legal and moral issue of enslaving men to pay for their wife's adultery or for children of women they often don't even know.
If the bonds of slavery were not an issue it is much more likely that men who have regarded children as their own would continue to love and support them as best they could. That is especially true if they had regular contact with them rather than the flurry of DV charges, restraining orders, and false abuse claims so commonly used now by wives and lovers to keep men away from children so that DNA paternity testing cannot be done.
What have we missed or forgotten
The tabulation above of what the law should be revised to include and remove is certainly incomplete. We need to hear from others how best to deal with paternity fraud and child support issues.
This is not a gender issue as paternity fraud as often impacts women and their children as it does men from what we've seen.
So we need fairly simple, but relatively foolproof and just methods of ensuring that men support children they sire but makes it virtually impossible for women to commit paternity fraud.
Send us your ideas! The Equal Justice Foundation will keep fighting but don't expect a miraculous, overnight cure for all these issues. Besides, the Colorado legislature isn't even in session until next January.
Conclusions
Current law does nothing to deter or punish paternity fraud, nor does it offer any assistance to victims of this travesty. Some relief is offered by the current legislation, SB08-183, to those enslaved by this crime if, and only if they can locate the woman committing the fraud and somehow get DNA paternity tests done under the strict standards of the law within a two year period. And that presumes no restraining order against him exists. But no assistance in obtaining their freedom is offered to these slaves, who number about 1.5 million in the United States , and over 20,000 in Colorado.
Current law thus endorses slavery and rewards adultery, and the only escape far too many find from this injustice is suicide. Nor does the law provide any inducement for men to marry and sire children, to the great detriment and ultimate destruction of our society.
Clearly much remains to be done and we can only hope that Colorado State Senator Shawn Mitchell and Rep. Nancy Todd will renew their efforts in the coming year, and that Rep. Bob Gardner will live up to his pledge if reelected. We also call on the other sponsors of SB08-183, state Senators Cadman, Gibbs, Gordon, Schultheis, Ward, and Wiens, and Representatives Labuda, Mitchell V., Roberts, and Stafford to join together again to overcome the injustices inherent in current law.
Many shibboleths must fall if the pyramid of paternity fraud is to tumble. But the institution of marriage depends on honesty and integrity and will not continue under laws that encourage fraud and reward adultery. And history clearly demonstrates that we cannot count on judges to do anything but sustain the extant slavery, now in the name of "the best interest of the child."
Charles E. Corry, Ph.D., F.G.S.A.
