"Paternity fraud" is a term initially coined by fathers' rights advocates and refers to situations where men are named as a child's biological when the mother knows or suspects that the named father is not the biological father. In many of these cases, the putative father has been paying child support based on the misconception that he is the biological father. Because many laws require putative fathers to maintain support, there are growing numbers of men paying for children not there own and, in some cases, being denied a father's rights such as visitation.
In many states, there is limited opportunity for a man to legally rebut presumption of paternity. Some state laws outright forbid men to challenge paternity especially if he is married to the mother. States also limit the time period where a paternity challenge is allowed or accepts a woman's paternity assertion without giving the alleged father a chance for rebuttal.
Most states require a man to pay child support whether or not he has shown that he is not the biological father. The response is a growing number of paternity fraud cases. In light of DNA technology that firmly establishes either paternity or non-paternity, some states have modified their laws. Florida law now gives men the opportunity to challenge any paternity judgments obligating them to pay child support. In cases where men prove they are victims of "paternity fraud," the law dismisses any any prior financial obligations the challenger owed to the child.
Colorado allows men to challenge the presumption of paternity during certain actions such as a divorce or separation action or an action to pay child support. However, once an order has been entered, the opportunity to rebut is subsequently barred. The law expressly states:
"A presumption under this section may be rebutted in an appropriate action only by clear and convincing evidence. If two or more presumptions arise which conflict with each other, the presumption which on the facts is founded on the weightier considerations of policy and logic controls. The presumption is rebutted by a court decree establishing paternity of the child by another man."
California provides a similar provision:
- § 7612. (a) Except as provided in Chapter 1 (commencing with Section 7540) and Chapter 3 (commencing with Section 7570) of Part 2 or in Section 20102, a presumption is a rebuttable presumption affecting the burden of proof and may be rebutted in an appropriate action only by clear and convincing evidence.
- (b) If two or more presumptions arise that conflict with each other, or if a presumption under Section 7611 conflicts with a claim pursuant to Section 7610, the presumption which on the facts is founded on the weightier considerations of policy and logic controls.
- (c) The presumption under Section 7611 is rebutted by a judgment establishing paternity of the child by another man.
Other states reshaping their paternity laws include Alabama, Arkansas, Georgia, Iowa, Ohio and Virginia where both ex-husbands and out-of-wedlock fathers may end child support through a DNA that they are not the biological father.
In Colorado, Illinois and Louisiana, only ex-husbands are allowed relief only to ex-husbands upon DNA proof. Texas law allows ex-husbands four years from the time of a child's birth to rebut and disprove paternity. Texas allows unwed fathers an unlimited amount of time to disprove paternity.
Despite the number of states modifying their laws, some jurisdictions maintain that a showing of non-parentage does not relieve a man of child support obligations. The policy behind forcing men to care for children not their own is that the best interest of the child has to be considered. If another man cannot step in to support the child, then the non-father must continue his obligations.
Talk with an Attorney
If you believe you are the victim of paternity fraud, you may have legal recourse if you can show DNA evidence that you are not the father. Certain jurisdictions allow you to cease child support upon this showing. Talk with an experienced attorney to determine your rights.