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September 08, 2005

Shred of Justice

King sent me this story, about a court case that, maybe, is starting to set some things straight that desperately need it.

The way "Family Court" law is currently set up, a woman basically needs only to tell a court who her child(ren)'s father is for the court to accept it as fact; the alleged father, in most states, has a short time to respond (sometimes, as in California, absurdly short; thirty days).

This has led to some amazing miscarriages of justice. A few years ago, I commented on the case of Tony Pierce - proprietor of one of my favorite blogs - who ended up in the California child support machine:

Tony Pierce remembers vividly the exact moment in November 2000 when the state of California began trampling on his life. "There was a loud angry pounding at my door at five o’clock in the morning," he recalls. "Very scary."

It was a female police officer with a complaint accusing him of being the father of an 8-year-old girl in Contra Costa County, east of San Francisco. "I’m like, ‘Great! I’m definitely not the father of anybody,’" he says.

Read the whole story in Reason Mag - it's great background for why this case is so important. And if it doesn't leave you wanting to strangle some government bureaucrat, you should check your pulse.

Anyway.

The case, with the New Jersey Supreme Court, makes at least some headway in redressing these sorts of cases - at least the ones where active fraud is involved.

Which was in fact what happened with the case at issue, which sounds like a treatment for an episode of a soap opera:

In 1957, RAC — the duped dad — and BEC were married; in 1980, they divorced. Three children resulted, including DC born in 1969. (Court documents reveal the parties only through initials.)

The mother was "virtually sure" that PJS was DC's father but she did not disclose this to her husband. Instead, PJS became the child's godfather. Upon divorce, RAC fulfilled the obligations of both child support and educational expenses for DC, all the while maintaining a close, loving relationship with the three children.

In 1996, DC — then 27-years-old — was about to wed. The mother revealed her paternity fraud to DC because his natural father had a pronounced family history of muscular dystrophy, a condition which could be genetically transmitted. She promised to inform RAC of the deception but waited three additional years to do so.

In September 2000, the sadly-enlightened RAC filed a complaint against PJS, which also named the mother and included a demand for DNA testing. PJS was the biological father and a judgment of paternity was entered against him in June 2002.

The first court granted RAC reimbursement of almost $110K in child support - but refused to grant legal fees, and (more importantly) punitive damages for fraud and emotional distress and (naturally) didn't address the mother's complicity in the fraud.

The biofather/fraudster appealed, saying the deadline for filing paternity claims (five years after reaching the age of majority) had passed. RAC countered that, naturally, the existence of the fraud had been actively concealed from him until nine years after the boy had reached majority.

The Superior Court of New Jersey agreed that the fraud made the five year deadline impossible, and sent the case back to the lower court to re-evaluate the question of legal fees.

Wendy McElroy - an excellent writer who I've quoted many times in this space - wrote the article, and summarizes the ups and downs of this case:

I am uncomfortable with this reasoning.

Adultery is not and should not be against the law; consenting adults have an absolute right to have sex together without government interference. The sexual act may be immoral or otherwise unsavory but it should not be illegal.

But making an innocent third party legally and financially responsible for the consequences of that sex act is an entirely different matter. And the mother must have perjured herself on several legal documents during the divorce and child settlement arrangements when she attested to RAC's fatherhood.

The whole thing is worth a read - and, generally, good news.

But there's so much more work to be done. More in coming days.

Posted by Mitch at September 8, 2005 09:03 AM | TrackBack
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