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Can it truly be Father's Day if the DNA says otherwise?

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© St. Petersburg Times, published June 18, 2000

Attention fathers. Maybe the best present you can get yourself for Father's Day is a paternity test to make sure you really are one.

According to research, there are plenty of men out there playing Dad to children who are not their biological offspring, yet don't know it.

Nikki Bass, accreditation programs coordinator for the American Association of Blood Banks, says in 1998 their 43 member labs from across the country averaged an overall paternity exclusion rate of 28.3 percent. That means that, in the cases the labs were asked to evaluate, more than a quarter of the men named as the father turn out to be biological strangers to their children.

Now, for a long time we have been telling men they are responsible for the children they create -- whether as part of a loving marriage and intended family or from a night of pleasure that may result in a lifetime of support payments. It may seem especially harsh to the guy out on the one-night stand, but it's certainly no less harsh on the woman, and society and the law have good reasons to say: If it's your genetics, it's your child, so pay up, regardless of whether you have a psychological or emotional connection to the child (or even remember the mother).

But what if the situation is reversed? What if a woman played the ultimate bait-and-switch and got pregnant by another man but claimed the child is her husband's? Shouldn't that disclosure absolve the husband or ex-husband (often the result of such a revelation) of paying for the food, housing, clothing, and braces for a child who is not his own?

As court after court weighs in on the question, it's apparent that it doesn't really matter who the real father is. If the courts have a man on a string paying support, they're going to keep him hanging.

Take the situation of Gerald Miscovich. Because the 4-year-old child's brown eyes did not match his or his ex-wife's blue eyes, Miscovich became suspicious that the boy was not his own. DNA testing proved his hunch right, and since then, for at least the past eight years, he has had no contact with the boy. But when he tried to extinguish his $537-per-month child support payments on the grounds that he wasn't the boy's father, the courts said "tough."

In 1998, the Pennsylvania Supreme Court affirmed a lower court ruling that, on the basis of the state's marital presumption law, Miscovich should not be given the ability to prove he was not the father with DNA test results.

The marital presumption is an old common law concept designed to keep children from illegitimacy. All 50 states hold out the husband as the legal father of any child born during a marriage, a presumption that makes practical sense and duly promotes stability for children. But a legal presumption shouldn't stand in the way of the truth. If DNA evidence says with more than 99 percent certainty that the guy socked with support obligations is not the real pop, then the law should yield to reality, as painful and as disruptive as it might be.

Though when you say this to a typical family lawyer you get reams of protest.

"There's more to fatherhood than DNA," says Lora Morgan, chairwoman of the American Bar Association's Child Support Committee. "It's cruel to rip away from the child the only father that child has ever had."

Nina Vitek, chairwoman of the Bar's Paternity Committee, agrees. "You have a kid at stake, an innocent third party," Vitek says. "Imagine the can of worms if courts started allowing this. Fathers would be running into court saying "this isn't my child" and wanting a DNA test.

While some men might run to court if they suspect the truth, it isn't accurate to say those men are "fathers." They have merely been deceived into thinking they are. Do we really want the law encouraging and rewarding this fraud by holding men responsible for a stranger's children?

For the men who object, their relationship with their former children is already ruined. So, what the courts and family lawyers are really saying, is they don't want to disrupt the money pipeline.

My guess is that non-fathers would rarely exercise an opt-out even if it were available. I bet many if not most men would willingly stay involved and financially responsible for children they've raised, regardless of the children's genetics. Emotional and psychological bonding with a child can overtake feelings of a wife's betrayal. But the issue here is how the law should respond when a man rejects the notion of remaining involved with a child who is not his.

A ready model is how the law in most jurisdictions treats a step-father after a divorce. A step-father who has not legally adopted his wife's children is not required to pay child support. Without a biological connection, even when the children are bonded to him as the only father they've ever known and even when the family relies on the step-father's income for financial stability, the law treats him as if he's not the real father.

Unfortunately, most courts have rejected this for a deceived father. Instead, they say, if the husband admitted paternity at the time of the divorce -- which is typical boilerplate divorce decree language -- he's lost his right to object, even if he didn't become aware of the fraud until years later.

Sorry, this just isn't fair. It's like saying to an innocent man on death row that DNA evidence proves you're not the murderer but we will ignore it because you didn't raise the issue at the proper time.

Men should be responsible for the children they bring into this world, but not those of the pool guy or tennis pro.

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