Paternity fraud is once again in the news, as the state of Tennessee is on the brink of becoming a trend-setter state with proposed legislation that would allow for the disestablishment of parentage. Paternity fraud is the popular name for the situation where a man is “duped” into fatherhood for a child that is not biologically related. The big issue with paternity fraud is that a man is forced to pay child support for these children even after DNA evidence proves that he is not the biological father. The majority of states rely on an English common law doctrine that creates a presumption of fatherhood when a child is born during a marriage or 300 days after divorce. The current purpose of this doctrine is to prevent the state welfare system from paying to support the child.
While the mother-child relationship is generally established at birth; the father-child relationship is harder to establish. When the common law doctrine of paternity was first established over 500 years ago, there was no scientific test that could prove paternity. With the advent of DNA testing, the old presumption has become antiquated. The majority of states have failed to reevaluate their paternity laws and have kept the old presumption in place.
Tennessee is currently considering a law that would allow for the disestablishment of parentage. The proposed bill would amend the current law and allow a man to escape child support obligations if he can show through DNA evidence that he is not the biological father. The new paternity law would not allow reimbursement for child support that has already been paid and would only apply to future child support payments. In addition, the law would not allow disestablishment of parentage in three situations. These are:
1. If the father legally had adopted the child. 2. If the father has entered into a voluntary acknowledgement of paternity. 3. If at the time a child support order was granted by a court, the man had actual knowledge that he was not the father.
If the paternity fraud bill becomes law, Tennessee would be one of a handful of states that allows a man to stop paying child support when he can prove he is not the biological father. Attempts to change the presumption of paternity have met with strong resistance from groups in many states. The majority of the arguments against changing the law address that if the duped dad is let off the hook for child support, it is the child that becomes the victim. Opponents to the new law submit that the child’s best interest should be the only concern.
Supporters of the paternity fraud bill argue that fraud should never be rewarded. They point out that these cases often arise because the woman has concealed a sexual relationship from her husband. They submit that the current law excuses the woman’s conduct and creates a new victim.
Scott Justice is an attorney practicing family law in Tennessee. He is the author of Tennessee Divorce and Family Law located at http://www.justiceondivorce.com
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