Tuesday, February 28, 2006
PATERNITY FRAUD UPDATE
We read hundreds of pages of links, postings, and documents that are sent to us by readers. However, as a general rule we do not post them because most of them are either defamatory or incoherent. One of our readers, however, has referred us to a knightradio.com and a discussion on Paternity Fraud.
Without going into great detail, our reader (Lilly) is the wife of a man who has been ordered to pay child support to an ex-wife despite the fact that no paternity tests have ever been administered. Lily posted some comments to the site and the moderator suggested to her that "your husband submit to a blood test/DNA if he has not already done so to prove that he is in fact not the biological father of the child."
The problem faced by those South Carolina fathers who want to challenge the paternity of children conceived during wedlock is that they are not given the right to require that the child submit to paternity testing. Historically, there were no scientific tests to establish paternity, so South Carolina, like most States, adopted legislation to the effect that all children conceived during coverture and born within a year of the death of the father were presumed to be the legitimate offspring of the husband. This legal fiction, referred to as a "statutory presumption of legitimacy" was enacted based on policy reasons, the theory being that, because no one could really be certain who their father was, it is better for society as a whole to presume that most everyone was legitimate.* With the advent of DNA testing, however, there is no sound policy basis for those who wish to challenge paternity should not be allowed to utilize scientifically reliable tests to do so.
C. An action to establish the paternity of an individual may be brought by:
1) A child;
(2) The natural mother of a child;
(3) Any a person in whose care a child has been placed;
(4) An authorized agency, including, but not limited to, the Department of Social Services, pursuant to the provisions of Chapter 5 of Title 43, and any other person or agency pursuant to the provisions of Sections 20-7-435 and 20-7-840;
(5) A person who claims to be the father of a child; or,
(6) a person who is the presumed, inferred, or alleged legal father.
SECTION 2. This act takes effect upon approval by the Governor.
This legislation never passed. But even if it had, it would not have solved Lilly’s problem. This is because, while new groups of individuals would have been allowed to utilize the Act to prove paternity, the proposed law would not have granted Lilly's husband the right to file an action to disprove paternity.
We read hundreds of pages of links, postings, and documents that are sent to us by readers. However, as a general rule we do not post them because most of them are either defamatory or incoherent. One of our readers, however, has referred us to a knightradio.com and a discussion on Paternity Fraud.
Without going into great detail, our reader (Lilly) is the wife of a man who has been ordered to pay child support to an ex-wife despite the fact that no paternity tests have ever been administered. Lily posted some comments to the site and the moderator suggested to her that "your husband submit to a blood test/DNA if he has not already done so to prove that he is in fact not the biological father of the child."
The problem faced by those South Carolina fathers who want to challenge the paternity of children conceived during wedlock is that they are not given the right to require that the child submit to paternity testing. Historically, there were no scientific tests to establish paternity, so South Carolina, like most States, adopted legislation to the effect that all children conceived during coverture and born within a year of the death of the father were presumed to be the legitimate offspring of the husband. This legal fiction, referred to as a "statutory presumption of legitimacy" was enacted based on policy reasons, the theory being that, because no one could really be certain who their father was, it is better for society as a whole to presume that most everyone was legitimate.* With the advent of DNA testing, however, there is no sound policy basis for those who wish to challenge paternity should not be allowed to utilize scientifically reliable tests to do so.
A few years ago a Bill was proposed that would allow "a person who is the presumed, inferred, or alleged legal father" to bring an action to establish the paternity of the child. The language of the proposed statute was as follows:
TO AMEND SECTION 20-7-952, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO INITIATION OF ACTIONS TO ESTABLISH PATERNITY, SO AS TO INCLUDE THE PRESUMED, INFERRED, OR ALLEGED LEGAL FATHER AS ONE OF THE INDIVIDUALS WHO MAY INSTITUTE SUCH ACTIONS.
Be it enacted by the General Assembly of the State of South Carolina:SECTION 1. Section 20-7-952 C. of the 1976 Code is amended to read:"
TO AMEND SECTION 20-7-952, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO INITIATION OF ACTIONS TO ESTABLISH PATERNITY, SO AS TO INCLUDE THE PRESUMED, INFERRED, OR ALLEGED LEGAL FATHER AS ONE OF THE INDIVIDUALS WHO MAY INSTITUTE SUCH ACTIONS.
Be it enacted by the General Assembly of the State of South Carolina:SECTION 1. Section 20-7-952 C. of the 1976 Code is amended to read:"
C. An action to establish the paternity of an individual may be brought by:
1) A child;
(2) The natural mother of a child;
(3) Any a person in whose care a child has been placed;
(4) An authorized agency, including, but not limited to, the Department of Social Services, pursuant to the provisions of Chapter 5 of Title 43, and any other person or agency pursuant to the provisions of Sections 20-7-435 and 20-7-840;
(5) A person who claims to be the father of a child; or,
(6) a person who is the presumed, inferred, or alleged legal father.
SECTION 2. This act takes effect upon approval by the Governor.
This legislation never passed. But even if it had, it would not have solved Lilly’s problem. This is because, while new groups of individuals would have been allowed to utilize the Act to prove paternity, the proposed law would not have granted Lilly's husband the right to file an action to disprove paternity.
*There were some exceptions to the rule, or ways of overcoming the presumption of legitimacy.
Comments:
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I do not understand why Lilly has not tried to get South Carolina to adopt the Revised UNIFORM PARENTAGE ACT. (Click here for an article on Utah’s adoption of the Act.) Its adoption may not help her, but it would appear to change the law so as to allow husbands standing to challenge the marital presumption of paternity.
Dennis
Dennis
# posted by 
: 5:05 PM
: 5:05 PM
http://www.nccusl.org/Update/DesktopModules/NewsDisplay.aspx?ItemID=133 is the link for the referenced article--or at least we thik so.
We do not know why Senator McConnell withdrew the Bill unless that he agrees that it is flawed. But, we do think that South Carolina ought to join five other states and adopt the Uniform Parentage Act.
Whether or not McConnell thought the proposed Bill was flawed, it was in fact flawed and would have accomplsihed very little of a positive nature. By the same token, there are already laws in place that provide sanctions against attorneys and litigants who pursue frivolous suits. So there is no need to pass new legislation to address this "problem" in family court. Rather, there is a need to enforce the law as it exists. We hear you loud and clear--we just do not always agree with you. We think Dennis also hears you loud and clear, but may have a slightly narrower focus.
In our opinion, the proposed legislation would not have allowed "a man falsely accused of paternity to initiate an action to" disprove paternity. Adoption of the Uniform Parentage Act--which we favor--would correct the defect in the current law. (For more information on the subject, read Geske v. Butler.) And, while the existence of rebuttable statutory presumptions in the paternity context may offend the Constitution, they have withstood many legal challenges.
On an editorial note, please feel free to challenge our ideas, but please do not engage in personal attacks--there are no legislators here.
On an editorial note, please feel free to challenge our ideas, but please do not engage in personal attacks--there are no legislators here.
You have misconstrued our position.
We did not say that the right to challenge rebuttable reesumptions offends the Constitution. Rather we said that some people have argued that the existance of the rebuttable presumptions offends the Constitution.
In your husband's case, he has no way of effectively challenging the paternity of the child of his ex-wife. This is because South Carolina does not allow paternity test results to be used to disprove paternity (essentially the holding in Butler v. Geske)and the current statute does not grant him standing to bring a paternity action under these circumstances.
Adoption of the McConnell/Ford Amendment would grant standing, but would not change the evidentiary proof requirements necessary to overcome the presumption that the legal husband of a woman giving birth is the biological father of the child. Another step is needed.
Bear with us and we will post the Butler v. Geske citation in a day or so.
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We did not say that the right to challenge rebuttable reesumptions offends the Constitution. Rather we said that some people have argued that the existance of the rebuttable presumptions offends the Constitution.
In your husband's case, he has no way of effectively challenging the paternity of the child of his ex-wife. This is because South Carolina does not allow paternity test results to be used to disprove paternity (essentially the holding in Butler v. Geske)and the current statute does not grant him standing to bring a paternity action under these circumstances.
Adoption of the McConnell/Ford Amendment would grant standing, but would not change the evidentiary proof requirements necessary to overcome the presumption that the legal husband of a woman giving birth is the biological father of the child. Another step is needed.
Bear with us and we will post the Butler v. Geske citation in a day or so.
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