Bill Would Give ‘Duped Dads’ Some Fairness Under the Law

By Ned Holstein, MD and Glenn Sacks

The Arnold Schwarzenegger paternity case has revealed a large flaw in California family law, one which, ironically, Schwarzenegger attempted to fix while Governor. The flaw? Schwarzenegger fathered a child with Mildred Patty Baena, who was married to Rogelio Baena at the time. Under California law, Schwarzenegger wouldn’t be obligated to pay a dime in child support—but deceived husband Rogelio Baena would be.

Currently the only person who can be held legally responsible to support the child is the mother’s then-husband, who is presumed to be the father because the child was born into the marriage. Judges routinely (and at times apologetically) saddle such "duped dads" with stiff child support orders. In one paternity fraud case, Arthur Gilbert, presiding judge of the Second District, Division 6 Court of Appeal, wrote:

"I reluctantly concur with the majority. Once again I vent my frustration over the state of [California] law in paternity cases…I would reverse the judgment—if I could. But I cannot…[I] suggest the Legislature reconsider…Is anyone listening?"

This year, Senator Roderick Wright (D-Inglewood) introduced SB 375, which would end the marital paternity presumption.

This ancient presumption is anachronistic and destructive, and has led to horrendous injustices. In some cases, a divorced man must pay child support for the child of his ex-wife and her paramour—and pay it into the household where the paramour and the ex-wife, the two biological parents, now live! In others, there’s "father shopping"—if mom can get more child support out of her ex-husband than her ex-boyfriend, then he’s "dad."

The most common scenario is this: a husband does not learn that the child of his marriage is not his child until after the limited window for challenging paternity has closed. After the couple divorces, the mother minimizes or withholds visitation, sometimes citing the father’s non-paternityas a justification. Yet dad is still forced to pay child support—for children who are not his, and with whom he is not allowed to have a relationship.

DNA testing is cheap and widely available—why do we still employ archaic legal presumptions to determine paternity? Moreover, we respect women’s biological ties to their children, as hospitals make substantial efforts to ensure that newborns go home with the right mother. Why shouldn’t men’s desire to ensure biological ties be similarly respected?

Getting the biological parentage wrong can have serious and damaging medical consequences for children. Current California law declares that there is a compelling state interest in determining paternity for all children. SB 375 would instead declare that there is a "compelling state interest in determining biological paternity for all children."

Legislation to encourage accurate paternity identifications for medical reasons has been supported by many prestigious medical institutions, including the Massachusetts Medical Society and the Massachusetts Department of Public Health. In March, over 50 physicians signed a letter to Senator Wright emphasizing that "good patient care includes accurate family histories," and urging California to "employ reasonable means, including DNA testing, to accurately determine children’s paternity."

Medical schools and medical journals continuously urge physicians, particularly pediatricians, to investigate their patients’ family histories. The U.S. Surgeon General has launched a major national initiative to encourage all American families to learn more about their family health histories. Having an accurate family history can be vital to diagnosing and treating many diseases which afflict children, including cystic fibrosis and childhood cancers.

Despite this, legislative progress has been sluggish. In 2002, then-Governor Gray Davis vetoed Wright’s AB 2240 to address paternity fraud. In 2004, Schwarzenegger signed AB 252, which offered relief to one class of paternity fraud victims, those with default paternity judgments.

While California has been slow, this month Texas Governor Rick Perry signed a bill which would allow relief for "duped dads" and lead to proper identification of parentage. Texas family court judge David Hanschen, expressing frustration over a paternity fraud case in his court in which the limited time allowed for challenging paternity had expired, recently wrote:

"The ultimate victims of [current] laws are ignored—the children. To decide a child cannot know who his real parents are because an arbitrary amount of time has passed is manifestly unjust…the truth doesn’t have a statute of limitation."