DNA raises new dilemmas for fatherhood

Three years after his divorce, Morgan Wise went for a blood test for medical reasons. The results were shocking: It turned out that the three boys he called "son" weren't his.

Outraged, and armed with DNA evidence, the Texas railroad engineer went back to court to fight his $1,340-a-month child-support payments.

Across the United States, men increasingly are arguing that they shouldn't have to pay child support if genetic testing proves they are not fathers.

'I am your father and I will always be your father.' - Morgan Wise, telling boys he's not their biological dad

At least two states are considering legislation that would take DNA tests into account when determining child support. The moves come as DNA-based paternity tests in the US have tripled - to 248,000 in 1998.

But so far, courts haven't been overly sympathetic to men like Mr. Wise.

Underlying the debate is the fundamental question of what constitutes fatherhood. Is it the man whose genes a child shares, or the one who rocked the child to sleep at night?

"It gets at the question: What makes a father? Is it genetic heritage or is it relationship?" says John Sampson, a law professor at the University of Texas at Austin and a member of the National Commission on Uniform State Laws in Washington.

Most states still operate under a 500-year-old English common-law doctrine that says a man is presumed to be the father of any child born to his wife during their marriage.

And while DNA may be making a place for itself in criminal courts, it is being soundly rejected in family courts. Last week, for example, an Ohio man was jailed for refusing to pay child support after DNA proved he wasn't the father. And in Pennsylvania recently, the state Supreme Court ruled that a man cannot present DNA evidence to rid himself of child support, saying "family interests" outweigh the ordering of such tests.

"Most of these judges won't even deal with DNA," says George Stern, an Atlanta lawyer and past president of the American Academy of Matrimonial Lawyers. "I really don't have a problem with that. I think the court system is trying to protect the best interest of the child."

The National Commission on Uniform State Laws is in the process of revising its parentage law. A 1973 law adopted by 19 states allowed judges to consider blood tests as evidence up to a child's fifth birthday. But the commission is now backing away from that position, recommending that DNA evidence be allowed only before a child turns 2.

If a man acted as a child's father during marriage, he should continue to do so even after the marriage has ended, Mr. Sampson says. "Let's say it turns out my wife is unfaithful, so I say: 'Good luck, kid. You don't have a daddy anymore.' It seems to me that might hurt their feelings a little bit," he says.

The full commission won't vote on the revisions until the end of July, and it must be approved by the American Bar Association and individual state legislatures before it becomes law.

Cases around the US

Some states aren't waiting for guidance. Bills have been introduced into both the Pennsylvania and Ohio legislatures that would allow DNA testing to be considered in child-support cases.

In Ohio, Dennis Caron is spending 30 days in jail for failing to pay child support on a boy he says is not his own. After he and his wife were divorced in 1992, she hinted that he might not be the father. A DNA test proved it, and he stopped the $530 monthly child-support payments in 1997 after his ex-wife refused to let him see the boy, he says.

Mr. Caron testified in front of the Ohio Senate Judiciary Committee in February in support of a bill that would allow men to stop paying child support and sue to recover past payments if DNA tests prove they are not the father.

In Pennsylvania, Gerald Miscovich found out through DNA testing that he was not the father of their son when the boy was 4, three years after he and his wife separated. He continues to pay $537 in monthly child support. His ex-wife has since moved out of state.

He asked the US Supreme Court to consider his case after the state Supreme Court sided with the mother. It refused.

State Sen. Michael O'Pake (D), minority chairman for the Senate Judiciary panel, said the proposed legislation will bring Pennsylvania into the 21st century.

"The present law in Pennsylvania unfairly forces men who are not fathers to pay child support for their wives," he said. The bill passed the judiciary panel and is awaiting a vote by the full Senate.

'I'll always be your father'

Back in Texas, Wise says that after a hard conversation with the boys - in which he had to explain DNA, biology, and the facts of life - one asked: "How come you're not our father?"

Wise answered simply: "I am your father and I will always be your father. And you will always be my boys. But the thing is, another man helped make y'all."

To his mind, that man should be footing the bill.

"People are angry at me for trying to buck the system. They are acting like I am the bad guy," he says. "But when we were married, I [worked hard] so my wife could stay home. She cheats on me ... and lies to me about the kids. Who's the bad guy here?"

The national organization Dads Against Discrimination is supporting many of the efforts, and is trying to get similar legislation passed in its home state of Oregon.

"Some of these guys really have a legitimate beef," says Victor Smith, president of Dads Against Discrimination. "We have a healthy disrespect for fathers. It's socially ingrained in our society."

When the courts simply assume that the husband is the father and won't consider DNA evidence, that can mean child support for 20 years. "I know of no other incidents in society where you're allowed to make an assumption on $100,000 debt," he says.

But women's groups say that in recent years, the divorce process has become less acrimonious, and if DNA tests are allowed, that would cause a lot of bitterness.

"It's not a matter of the courts favoring women, but a desire to protect children from abandonment," says Joan Entmacher, vice president and director of family economic security at the National Women's Law Center in Washington.

"I don't think there is any question that DNA testing is a valuable tool. But the controversy is not about testing per se, but about how and when you can ... challenge paternity that's been accepted for many years and relied upon by the child."

In addition to the National Commission on Uniform State Laws, the American Law Institute is also revising its paternity law. Ms. Entmacher says both these groups have come to recognize that "parenthood has more than biology to it, and that you've got to consider the impact on the children."

(c) Copyright 2000. The Christian Science Publishing Society

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