Florida : Dads contest paternity, child support
Sunday Crime Flood
Dads contest paternity, child support
DNA tests often don't sway courts
BY SHARI RUDAVSKY
srud...@herald.com
David Ziskind listens to the tales of Death Row prisoners exonerated by
DNA testing and wonders why the same science that saved them cannot ease
his child-support burden.
Genetic tests tell the Davie man he did not father the youngest of the
three children from his first marriage. But Florida courts consider him
the legal father regardless of biology.
While the science of DNA may have clarified matters for criminal courts,
it has muddied the job for civil courts, which now must try to balance a
child's best interests against information revealed by genetic tests.
Florida, like many other states, considers all children born of a
marriage as belonging to the husband in that marriage, even if after a
divorce the man discovers he is not the biological father of one of the
children.
``The law has not caught up with science, and the science does not take
into account emotion,'' said Evan Marks, a Miami lawyer who specializes
in family law and serves on the state's Commission for Responsible
Fatherhood, a group appointed by the governor to address problems facing
families and to encourage fathers to behave responsibly.
The Florida Supreme Court is expected to rule in coming months on two
cases in which men have asked the courts to let them off the hook for
child support.
In addition, a Miami-Dade legislator plans to propose a law during the
next legislative session that would give unlimited time to unmarried men
to contest a child's paternity. Under current law, an unmarried man who
wants to contest paternity has one year to do so after acknowledging in
writing that he is the father of a child.
The new law, if enacted, may also open the door for divorced men.
POPULAR CONCEPT
Though the courts have been slow to consider DNA evidence in child
support cases, the public has embraced paternity testing. GeneScreen,
one of more than 43 laboratories to offer DNA testing nationwide,
handles more than 75,000 cases a year.
Lifecodes Corp., another nationwide DNA testing service, also has seen
an increase in the number of men and child-support agencies seeking
tests. About 23 percent of those who use the service do so on their own,
paying the $450 fee out of pocket.
Hard numbers do not exist on how many men find themselves in this bind.
But as policymakers grapple with how to handle such cases, they may be
answering some of the most essential questions of familial relations.
``You're left with the question of what's your definition of a father,''
said Judge Chris Altenbernd, an appellate judge on the Second District
Court of Appeal, which covers Tampa and parts of West Florida.
`SOCIAL QUESTION'
Altenbernd, who has written a law review article on the topic, said,
``What does it take to be someone's daddy? That's a really complicated
social question.''
That issue, some say, is what has kept civil courts from using DNA
evidence as the determining factor in establishing child support.
``It's difficult to deny that there is an element of uneasiness in
requiring a man to support a child that is not his biological child, but
what about the kids?'' asks Dave Bruns, a spokesman for the state
Department of Revenue, which handles child-support operations in the
state.
``If the kid is going to be cut off from that financial support, that's
a devastating blow for any child. Who then is going to assume
responsibility?''
For Marks, a far more valuable commodity may also be at stake -- a
father's relationship with a child. Marks advocates deciding cases in
which paternity is questionable on an individual basis.
``These issues are some of the most difficult issues existing in law,''
he said. ``A hard and fast rule would not help the families in need of
guidance. Every case is different.''
But some argue that at least some guidelines need to be established to
ensure that men do not find themselves stripped of all rights.
Rep. Phillip Brutus, a Democrat whose district includes northeastern
Miami-Dade, will introduce a bill during the next legislative session
that would allow a man to question paternity anytime, as long as he is
willing to pay the costs of the challenge. The bill is aimed primarily
at helping wrongly accused unmarried fathers, but it could apply to
divorced men as well.
``I would say any father has the right to challenge,'' Brutus said.
``There's no indentured servitude anymore.''
Tallahassee lawyer Rob McNeely, who also serves on the Commission for
Responsible Fatherhood, views the situation as out-and-out fraud by
women who falsely represent to a man that a child is his. While the law
offers remedies to those who have been defrauded, it does not do so in
paternity cases -- reflecting the notion that society views fathers not
as emotional nurturers but as financial contributors, McNeely said.
``The cultural misperception of fathers as ATM machines is what's
driving the legal debate,'' he said. ``I'm not saying we shouldn't look
at the financial issues. I'm just saying that we shouldn't start
there.''
VOLUMINOUS FILE
Ziskind, whose divorce file encompasses thousands of pages and nine
volumes, feels defrauded by a system that has refused him redress.
The psychologist made his discovery about six years ago as he toyed with
starting a paternity test business. To try the procedure, he sent off
swab samples from himself and his youngest daughter. When he saw the
test results, he thought the science must be faulty. Then he had his two
older daughters tested and concluded that his youngest daughter was
fathered by another man.
Marks, who represents Ziskind's former wife, declined to comment on the
case because it is still in court.
Ziskind, who said he pays about $440 a month in child support, would
prefer to have nothing to do with courts anymore.
``The court is not there for justice,'' Ziskind said. ``If I could get
the court out of my life, I would do it.''
His current wife, Nadine, has made changing the law a crusade. She is
seeking legislation that would require paternity tests in all divorce
cases to prevent situations such as the one in which her husband finds
himself.
As the law continues to evolve, McNeely predicts, men may be able to get
compensation for paternity fraud. ``This is not just a fraud on the man,
it's a fraud on the child,'' he said.
Tampa Bay resident Michael Anderson's case is one of the two to have
made its way to the Florida Supreme Court, where legal precedent could
be set.
Anderson resisted his divorce attorney's recommendation that he have his
2-year-old daughter tested, which some attorneys have routinely started
to suggest. Six months later, however, when he learned that his wife had
never told him she was previously married to a ``family friend'' the two
lived with before they were married, he changed his mind.
The test results showing that he was not the child's father stunned him,
even though she was conceived before he married his ex-wife -- during
their on-again, off-again relationship. In the last five years, he has
paid between $800 and $1,000 a month in child support as his case has
made its way from Hillsborough Circuit Court up to the state Supreme
Court.
``I don't want any money back here. All I want to do is stop. This child
has the right to meet her real father,'' said Anderson, a Tampa police
officer who believes that ``the wheels of justice turn slowly, but they
do turn.''
Anderson's ex-wife maintains that she believes he is the biological
father of her child, said Anderson's attorney, Tom Elligett.
ANOTHER CASE
In the second case, a man known in court papers as ``D.F.'' agreed to
pay child support to his ex-wife in 1988, although he knew he was not
the biological father of their child. In 1997, he asked Pinellas County
Court to stop the payments, but the Florida Department of Revenue
insisted he continue paying.
Men like Ziskind struggle to understand how and why the legal system
could force them to financially support children long after they
discover that the children are biologically unrelated to them.
``Anytime something happens, somebody has to pay,'' Ziskind said. ``I
thought that meant the person who was guilty has to pay. But it doesn't
have to be the guilty person. It just has to be somebody.''
DedNdogYrs
prove someone was the father.) I wonder if this has come up before in court
before DNA.
Dogs & children first.
t.cruise
I saw a story on Dateline NBC, which reflects that some state laws are
assinine. DNA testing showed that a man couldn't possibly be the
father of the child, but the state law in that particular state forces
him to pay child support because he was married to the mother of the
child at the time that the child was conceived and born. Because the
man's income is substantial, he's being forced to pay a couple of
thousand dollars a month to support a child that isn't his.
T.C.