Monday, January 23, 2012

Billie Jean and Child Support

"She says I am the one, but the kid is not my son."

-- Michael Jackson, "Billie Jean"

Many times, in legal cases that involve children, a party finds it advantageous to dispute paternity.  Sometimes the father wants to sing, like Michael Jackson, "The kid is not my son," especially when there is child support money to be paid.  Other times, the mother wants to dispute fatherhood, such as when the supposed father wants custody or visitation.  Depending upon the case, it may be difficult or impossible to raise the issue of paternity.

In many ways, paternity should be an easier situation than the law makes it.  The law on paternity mostly predates genetic testing, and it has not kept up with changing technology.  Now it is so easy and so inexpensive to determine paternity accurately, the law should take more advantage of DNA testing.  Last year, the General Assembly passed some amendments that made genetic testing easier; these amendments became effective on January 1.

Prior to these amendments, it was not clear how to get DNA testing after the fact, or even if it were possible at all.  Rule 60 of the Rules of Civil Procedure imposes strict requirements for overturning established orders, including paternity orders.  Now, the General Assembly has created three motions:  To set aside paternity, to set aside affidavit of parentage, and for relief from child support order.  The motions are written to work together.

With all of these new motions, the first step is to establish the necessity for the motion.  Parties cannot file these motions at will.  If the motion is not filed in good faith, the moving party could be charged with the other party's attorney fees.  The moving party has to establish that the original order was obtained by fraud, duress, mutual mistake, or some other excusable neglect.  It is uncertain how high the court will set this bar.

After the moving party establishes a basis for one, the court can order DNA testing.  Parties who do not cooperate in the genetic testing can be found in contempt.  If DNA testing proves that the party is not the biological father, the court can (but does not have to) make the mother pay the cost of the test.

The motion or claim for relief from child support only suspends pending child support payments under a few circumstances.  If the recipient of the child support is the mother, then the child support payments are not suspended.  If the recipient is a third party or the State, then the payments are suspended.  For this reason, motions should be filed as soon as possible, to avoid child support arrearages accruing.

The motion or claim for relief from child support order must be "filed within one year of the date the moving party knew or reasonably should have known that he was not the father of the child."  The other two motions do not appear to have time limits on them.  However, it would be best to file all of these motions as soon as possible, to avoid a possible common-law defense of laches.

The General Assembly intentionally limited the effect of the new amendments.  The amendments do not overturn the old legal presumption that a child born to a married woman is the child of the husband.  A party cannot file a motion or claim for relief from child support order if he knew that he was not the father when he acknowledged paternity, adopted or legitimated the child, or prevent the biological father from exercising his rights.  Nevertheless, it seems reasonable that many parties will avail themselves of this new motions.

The bottom line question for many people will be, what happens to the money?  Any child support due and payable as of the date of the motion is still due and payable, even if the moving party turns out not to be the father.  Any child support paid to the State is gone.  Only if the mother used fraud or duress in obtaining the original order can she be required to repay the already-paid child support.

If you are involved in a case where paternity is an issue, give me a call.

You can read SL2011-0328 on the General Assembly's web site.

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