Blog

Utah Divorce Advice

What is paternity fraud?

Paternity fraud occurs when the natural mother of a child identifies a man as the biological father of the child, knowing that he is not the father or that there is a good possibility he is not the father. Often, the named father learns that he is not the biological father months or years after the child is born. By that time, the named father has witnessed the birth of the child, bonded with the child and invested in the care of the child through payment of child support.

The natural mother knows how many men she has engaged in sexual relations with and how many men could potentially have fathered her child, while the named father knows only that he engaged in sexual relations with the mother. After learning that a current or former girlfriend or spouse is pregnant, most men feel some sense of responsibility for the child. It is rare for a man to deny that a child is his or to demand that a woman seek genetic testing to determine paternity.

Paternity fraud occurs frequently and negatively impacts the lives of married men and unmarried men, biological fathers and non-biological fathers, and the innocent children who grow up believing a certain individual to be their father. A reported 250,000 men fall victim to paternity fraud every year.

Why does it happen?

Utah law does little to protect men from falling victim to paternity fraud. In fact, the current statutes that govern paternity compound the problem. In Utah, a man is presumed to be the biological father of a child if:

  • He and the mother of the child are married to each other, and the child is born during the marriage;

  • He and the mother of the child were married to each other, and the child is born within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, divorce or a decree of separation;

  • When a marriage is deemed invalid but he and the mother were married in apparent compliance with the law, and the child was born during the invalid marriage or within 300 days after the termination of the marriage;

  • After the birth of the child, he and the mother of the child marry each other, he voluntarily asserted his paternity, and there is no other presumptive father.

A typically pregnancy is 40 weeks or 280 days. A divorce can take years to finalize. Pursuant to current Utah law, a couple could separate and file for divorce. While the divorce is being negotiated and/or litigated, the wife could move forward with a new relationship and become pregnant. So long as the divorce has not been finalized or the birth occurs within 300 days after the divorce is finalized, the husband is legally presumed to be the father of the child.

The burden of establishing sufficient evidence to rebut the presumption of paternity lies with the presumed father. The current or former husband must petition the court for genetic testing. The court may order genetic testing but is also permitted to deny testing and enter a finding that the husband is the father. If the husband does not seek to rebut the paternity presumption before a final Decree of Divorce is entered, he waives his right to do so.

Even when the parties are not and have never been married, the mother controls how paternity is established. When a single mother seeks state benefits, the state of Utah requests that the mother disclose the identity of the person she believes to be the father. The state will enter an administrative order against the identified father for child support and will garnish the man’s wages and tax returns as reimbursement for benefits paid to support the child. The state may also file a petition with the court to establish child support. The presumed father will be required to appear in court and to acknowledge paternity or petition the court for genetic testing. In cases where the parties are not married, paternity can be contested at any time.

What should you do if you are the victim of paternity fraud?

If a child support order or judgment for child support arrears has been entered against you, and you believe that you may be the victim of child support fraud, you should immediately consult with an experienced family law attorney.

A family law attorney can assist you in contesting paternity and avoiding a large child support judgment. If an order has already been entered by the court, the attorney will petition the court to set aside or modify the order. If an order has not yet been entered, the attorney will immediately petition the court for genetic testing. It is important for the attorney to plead sufficient facts to show that you have been a victim of paternity fraud. In addition, the attorney will need to show that it is contrary to the best interests of the child for an order of paternity to be entered. Where a presumed father has established a parent-child relationship and supported a child for a significant period of time, it is possible that the court will order the father to maintain an ongoing relationship and pay ongoing support to the child.

If you can establish fraud, the perpetrator of the fraud may face criminal charges and civil sanctions. In the New Mexico case Barreras v. Trevino, a wife claimed she had a child shortly after she and her husband were divorced. The husband was presumed to be the father and a child support order was entered. After the husband paid $20,000.00 in child support, he learned that the child did not exist. The wife had used blood taken from the parties’ older daughter to obtain fraudulent genetic test results and went as far as to obtain a birth certificate and social security card for the fictitious child. The wife pleaded guilty to fraud and perjury. Employees from the state lab that assisted in the genetic testing were also charged with fraud.

It is, however, rare for criminal charges to be filed in cases of paternity fraud. Women have no legal obligation to disclose the possibility that several men may be the father.

It is also rare, but possible, for a victim to file a civil lawsuit seeking monetary damages for fraud. To establish fraud, a man must show that (1) the woman knew or should have known that he was not the father; (2) the woman falsely identified the man as the father; (3) the woman intended to deceive the man; (4) the man justifiably relied on the woman’s false assertions; and (5) the man suffered injury as a result of the fraud. While it is easy to establish that the man relied on the woman’s assertions and suffered injury as a result, the woman’s knowledge and intent are more difficult to establish.

Stacey Schmidt is lead counsel of the divorce and family law team at Schmidt Law. The family law attorneys at Schmidt Law Firm are experienced in paternity matters and can offer expert advice to men who have fallen victim to paternity fraud. Contact Schmidt Law Firm for a free thirty minute consultation by visiting http://sschmidtlaw.wpengine.com/contact-us/

Leave a Reply