Man Battles 'Paternity Fraud,' Seeks Supreme Court Review
July 7, 2008
(CNSNews.com) - The U.S. Supreme Court this week will decide whether to hear the case of a Georgia man who is being forced to pay child support for a girl who is neither his biological nor adoptive child. Lower courts in Georgia have ruled that the man had plenty of time to find out if he was the father before signing child support agreements, but failed to do so.
"Paternity fraud is the only crime where the victim is persecuted for the actions of the guilty party," said plaintiff Carnell A. Smith, who is under court order to continue paying child support for the 13-year-old girl he believed was his until DNA testing proved otherwise.
"Making men pay child support for children proven by DNA testing not to be theirs is not in the best interests of children and families," said Smith''s attorney, Jeffery M. Leving. "It can also deprive children of ever knowing their true biological fathers."
According to court papers, a then-monogamous relationship involving Smith and the girl''s mother, Toni W. Odom, broke up more than a decade ago when Smith announced he wanted to see other women. Smith and Odom continued dating even while pursuing other relationships, and when Odom became pregnant, she told Smith he was the father.
Smith voluntarily began to pay monthly child support in 1989 and continued until 1998, when a Georgia court raised the monthly payment at Odom''s behest. Even this did not discourage Smith from joining Odom a year later in presenting the court with a "Consent Order of Legitimation and Child Custody," an official acknowledgment of parenthood.
Only later, when Smith decided to get a paternity test, did he realize he was not the father of Odom''s child.
When Smith took his new evidence to court, hoping to be released from court-ordered child support, DeKalb County Superior Court Judge Edward A. Wheeler refused to hear the case, ruling Smith "had knowledge, at the time he was informed of the pregnancy, that the parties were no longer in a monogamous relationship and therefore ... was on notice that he might not be the father."
Smith also knew he could request a paternity test before legally acknowledging parenthood, Wheeler continued, but did not do so. Thus, the court found that Smith did not exercise due diligence in determining paternity of the child and that he only had himself to blame.
The state Court of Appeals and the state Supreme Court subsequently turned down Smith''s appeal, leaving the U.S. Supreme Court as Smith''s court of last resort.
"Whenever there''s an unlawful, unconstitutional taking of money, those monies should be returned," said Leving. "And even if they can''t be returned, there should be a law that they must be returned. Without that, where is the morality in our society in allowing any type of fraud to exist and allowing the wrongdoer to keep the profits of their illegal actions."
Patrick Fagan, research fellow in family and cultural issues for the Heritage Foundation, agrees the legal system has wronged Smith.
"In the area of government''s competence, which is in the administration of courts and justice, the enforcement of contracts and obligations undertaking ... government is clearly being incompetent here," said Fagan.
Ten years ago, DNA tests were not common, Fagan added, so it''s not surprising that Smith did not rush out to get one.
"There is some [biological] father out there who has this obligation to this child and has not been doing it for 13 years, and no one is addressing him. It doesn''t sound like justice to me," Fagan said.
Like Smith, Fagan believes the biological father and mother should be forced to repay Smith. "If there was information withheld by this woman ... then she did him a disservice. The mother clearly should bear something for not filling the man in on what the true situation was."
George Mason University law professor, Daniel D. Polsby, disagrees. Smith had his day in court, and the court made the right decision, Polsby believes.
"This is not counting the votes in Florida ... where you keep at it until you get the results you want," said Polsby. "You get a bite at the apple and you take what you get.
"I''m not saying that reasonable people can''t weigh this differently," said Polsby. "Reasonable people have weighed it and made a decision. And they''ve looked at this guy and said, \lquote pal, the time to raise this was then, not now. The courtroom door is open to you, but you can''t walk through it every day. You''ve got to get yourself together and figure out what your story is, and that''s going to be it.''
"The fairness to this man, which is obviously an important consideration for the courts and for this society, is not the only concern that''s in play here," Polsby added. "We also have to worry about this kid." The state courts are "[coming] down on the side of a different principle and that is, \lquote look, we need some finality in the support arrangements that we have for the minor children in this state.''"
In requesting the Supreme Court to hear the case, Smith''s lawyers argue that while state courts have the power to determine the financial responsibilities of a biological or adoptive father, those courts have no such responsibility over Smith because he is not the father of the child in quesiton.
None of the 50 states require the mother of a child to make full and truthful disclosure about other potential fathers, said Smith. "If you had truth in paternity disclosure [laws] and I see that there''s actually three other guys'' names on here, I don''t think at that point I''m actually walking in the dark."
Supreme Court justices are scheduled to hold a conference Thursday to decide whether to take Smith''s case. Their decision will be made public June 10.
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