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Paternity Case Marks Progress for Defrauded
Fathers
On August 31st, a small but precedent-setting
lawlibrary.rutgers.edu/courts/appellate/a6130-02.opn.html
case was decided in the Superior Court of New
Jersey. The plaintiff discovered he was not the
biological father of his eldest 'son', now in his
30s. The court affirmed the duped dad's legal right
to sue the natural father for the cost of raising
the 'child' and removed some limitations imposed by
a lower court.
The precedent: for the first time, New Jersey
has extended a clear statutory deadline for filing
on paternity cases. For the first time, a
biological parent may be forced to pay child
support for an offspring emancipated over 15 years
ago.
The significance: family courts are beginning to
reflect a growing impatience with paternity fraud;
perhaps this is in reaction to a shift in societal
attitudes.
Predictably, the pathbreaking New Jersey
decision raises more questions. For example, if a
deliberate fraud was perpetrated for thirty years
by both the biological mother and father, why is
only the father held liable?
The answer -- right or wrong -- lies in the
www.nj.com/news/ledger/jersey/index.ssf?/base/news-1/1125553544143310.xml&coll=1
facts of the case, which are as follows.
In 1957, RAC -- the duped dad -- and BEC were
married; in 1980, they divorced. Three children
resulted, including DC born in 1969. (Court
documents reveal the parties only through
initials.)
The mother was "virtually sure" that PJS was
DC's father but she did not disclose this to her
husband. Instead, PJS became the child's godfather.
Upon divorce, RAC fulfilled the obligations of both
child support and educational expenses for DC, all
the while maintaining a close, loving relationship
with the three children.
In 1996, DC -- then 27-years-old -- was about to
wed. The mother revealed her paternity fraud to DC
because his natural father had a pronounced family
history of muscular dystrophy, a condition which
could be genetically transmitted. She promised to
inform RAC of the deception but waited three
additional years to do so.
In September 2000, the sadly-enlightened RAC
filed a complaint against PJS, which also named the
mother and included a demand for DNA testing. PJS
was the biological father and a judgment of
paternity was entered against him in June 2002.
In February 2003, RAC was awarded $109,697 for
child support reimbursement up to DC's 22nd
birthday. The reimbursement excluded legal expenses
and money spent on DC's education between the ages
of 22 and 25. The judge also dismissed RAC's claim
for "fraudulent concealment and intentional
infliction of emotional distress." This effectively
barred a cross-complaint against the mother.
RAC appealed.
PJS countered with a technicality, albeit an
important one. The time limit for initiating a
paternity fraud suit had expired under www.njleg.state.nj.us/bills/BillView.asp
New Jersey's Parentage Act before RAC had brought
the original suit. The relevant lis.njleg.state.nj.us/cgi-bin/om_isapi.dll?clientID=73224812&Depth=4&advquery=%229%3a17-45%22&headingswithhits=on&infobase=statutes.nfo&rank=%20%20&record={1372A}&softpage=Q_Frame_Pg42&wordsaroundhits=10&zz=
passage states, "No action shall be brought under
[the Parentage Act] more than 5 years after
the child attains the age of majority."
Thus PJS claimed RAC's suit was invalid. RAC
answered that information on paternity was
concealed until the time limit had expired. In
other words, PJS and the mother had "conspired" to
prevent the very possibility of a legal remedy.
The Superior Court agreed with RAC…but only
so far. The deadline for filing was waived. The
Superior Court fell back on the intention of the
Parentage Act rather than its specific wording. The
Act was not intended to facilitate fraud; thus, the
court extended the principle of www.answers.com/main/ntquery;jsessionid=2c34lmp3vhifu?tname=equitable-tolling&curtab=19_1&hl=statute&hl=limitations&sbid=lc04a
"equitable tolling" to paternity fraud. This
principle states, "a statute of limitations will
not bar a claim if despite use of due diligence the
plaintiff did not or could not discover the injury
until after the expiration of the limitations
period."
The claim for legal fees was sent back to the
lower court for reconsideration. But the claims of
"fraudulent concealment" and "emotional distress"
were denied, as was the filing of action against
the mother.
Why was the mother exempted? The court found,
"BEC owed plaintiff nothing for the support of DC"
because she had also paid her fair share. Moreover,
"the act of adultery…does not violate any law"
and was mitigated by the joy and benefit "plaintiff
enjoyed from the love and affection" of the "child
he thought was his."
I am uncomfortable with this reasoning.
Adultery is not and should not be against the
law; consenting adults have an absolute right to
have sex together without government interference.
The sexual act may be immoral or otherwise unsavory
but it should not be illegal.
But making an innocent third party legally and
financially responsible for the consequences of
that sex act is an entirely different matter. And
the mother must have perjured herself on several
legal documents during the divorce and child
settlement arrangements when she attested to RAC's
fatherhood.
At least two questions bear on whether the
mother should be liable. The first: should the law
intrude into family matters? The second: if the law
becomes involved, should fraud be tolerated?
My ideal society includes explicit contracts
into which people voluntarily enter before becoming
parents; DNA testing might be a standard provision.
The law (or other third party) would become
involved only as an arbiter of disputes or as a
rescuer in cases of physical abuse.
That society doesn't exist. People resist
parental contracts and the law inevitably becomes
involved in competing claims over children.
And, when a legal proceeding occurs, intentional
fraud should be punished. BEC -- along with the
natural father -- committed intentional fraud.
The New Jersey decision is beneficial in
granting increased recognition to the plight of
paternity fraud. But an obvious problem remains.
Two people committed fraud. Only one of them bears
any liability.
©2010, Wendy
McElroy
* * *
Wendy
McElroy is the editor of ifeminists.com
and a research fellow for The Independent Institute
in Oakland, Calif. She is the author and editor of
many books and articles, including her latest book,
Liberty for Women: Freedom and Feminism in the
21st Century. She lives with her husband in
Canada. E-Mail.
Also, see her daily blog at www.zetetics.com/mac
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