Once a father, not always a father

Four years after his wife left him and took their two-year-old daughter, Kaitlin, Daniel Connors received a shock from the child's doctor. A routine blood test showed Kaitlin wasn't his biological daughter. A later DNA test confirmed it.

"I feel I should have a choice in how I go forward in supporting this child," says Mr. Connors, now divorced. Over the years, he's paid $88,000 in child support. He's now unemployed, badly in debt, and facing contempt charges for not paying $18,000 in child support in the past year.

If DNA testing can exonerate convicted criminals, why shouldn't DNA testing free men like Connors from responsibility in cases of court-ordered support for children they didn't biologically father? It's one of the many moral, legal, and ethical questions that courts and communities are twisting themselves into pretzels to answer.

A California measure now making its way through the state legislature would give judges far more discretion than they now have to end child-support mandates on the basis of new testing. The law passed California's Assembly earlier this month by an overwhelming margin – 57-3, and is being considered by the senate.

Connors thinks it would give him – and thousands like him – a fighting chance.

"I don't want to cut this child off of all support," says Connors, an organ transplant specialist who says he went heavily into debt because of his daughter's medical bills. "But my financial situation has changed and the courts won't even hear my case."

"This bill will give courts discretion in ending the nightmare of child support if a man proves he is not the father. Until it's passed, the court has no such power," says Stan DiOrio, chief counsel for Assemblyman Rod Wright (D) of Los Angeles, the bill's sponsor.

The movement to end the centuries-old legal doctrine of child support – after biological fatherhood is disproved – is gaining momentum. New laws have been enacted in Alabama, Alaska, Arkansas, Illinois, Iowa, Louisiana, Maryland, Georgia, and Ohio, and activists are pushing for change in at least five other states.

Legal experts say California is giving momentum to the movement – as well as some much-needed clarity and uniformity to what the National Conference of State Legislatures calls a "hornet's nest of public-policy issues."

California's proposed law provides latitude to judges rather than "hard and fast" rules other states have set up, says Paula Roberts, of the Center for Law and Social Policy, which tracks such legislation. She notes that an early version of the bill would have exonerated all men from child-support payments if paternity were disproven. But the current version allows judges to consider other factors – such as established relationships, family settings, financial arrangements, and emotional details.

"Once you get into litigation over these matters, you realize the answers are not as simple and clear as the participants believe it is," says Ms. Roberts.

Among the complicating issues are how to deal with the financial future of such children and the liability of the state to return past payments. Also, the new laws could alter the res judicata doctrine, a foundation of the US legal system that holds once a judgment is obtained, complainants have either no recourse to change it, or a limited time to challenge it.

Under the California provision, men would have three years from the time they find out they are not the father to get a DNA test and take it to court. The stipulation is being fought by parent, family, and youth groups because of the emotional, psychological, and financial devastation it could cause a child who has an established bond with the father.

Fathers in California now have two years from the date of a child's birth to challenge paternity. The new law would allow challenges of fatherhood well after children are raised and have established relationships.

This creates "significant uncertainty in the lives of many children," says Valerie Ackerman, of the National Center for Youth Law in Oakland, Calif. "It subverts the system by giving an incentive for men to delay in investigating and presenting the relevant facts early in the process."

One particular concern about the new laws is what could happen emotionally to a child whose father decides to have a DNA test and is still found to be the biological father. Another concern is for men themselves: Mothers can deny parental rights to men who are not the biological father. Also of concern is the sudden financial liability assumed by states that allow men to end child support payments. Children cut off "could end up costing millions in welfare support from the state ... not to mention the legal liabilities when such men sue to recover hundreds of thousands in past payments," says Roberts.

Whatever the moral, legal, and ethical consequences the new laws offer a chance of fairness, says Carnell Smith, founder of the national group Citizens Against Paternity Fraud. "Truth is something that ought to be permissible in court cases where men have been lied to."

But men's motives are often not as simple as wanting to sever financial responsibility. For Connors it is more. "I also have the concern that Kaitlin learn the truth about her real biological father," he says, because blood relatives could possibly help her with organ donations or bone-marrow transplants.

"I don't mind helping this child," Connors says, "but I have no choice. And that, because someone lied to me and defrauded me many years ago, is not fair."