Sunday, November 25, 2007

Paternity - Indiana has no disestablishing paternity statute

I try not to editorialize on this blog. Which lead me to hesitate in posting this article. However, if the Bar does not speak up who will?

What is a disestablishment statute? Disestablishment provides a process for setting aside a judgment finding a man is the father of a particular job.

Why is the lack so important? I see the principal danger coming out of the use of paternity affidavits. Check out my earlier post, Paternity Affidavits - A Warning. The paternity affidavits statue is as follows:

Paternity affidavits
IC 31-14-7- Sec. 3. A man is a child's legal father if the man executed a paternity affidavit in accordance with IC 16-37-2-2.1 and the paternity affidavit has not been rescinded or set aside under IC 16-37-2-2.1.
As added by P.L.138-2001, SEC.8.
A man signing the paternity affidavit without consulting an attorney is a fool but not a rare one. Consider the situation of the men in In re the Paternity of E.M.L.G, R.L.J., J.A.J., and N.A.H.. Young, told that they are the fathers of the children, and all the emotions that come with both youth and potential fatherhood.

Now consider what sort of relationship these men will have with the children. What these men will think of a legal system that gives them no relief from a mistake, if not fraud.

As for what other states are doing: Legislation Tracking: Disestablishment of Paternity. Since Indiana politicians detest being at the front of anything, they can take heart that they will not be alone in dealing with what appears to be a national problem.

Yes, it will take the politicians in the General Assembly to act. As the Saint Joseph County case shows, the judiciary has not the means to change the law.


Douglas Richardson said...

From a Victim of no mistake, but fraud.

I. Background Information about a Corrupt System
A. What is Paternity Fraud?
Counterintuitive as it may seem, it is pretty common in our society that men are forced to pay child support for children who are not biologically theirs—even when the courts and the government are perfectly aware that they are not the father. This is paternity fraud, and it typically happens in two ways. The first, which is described in more detail below, involves an unwed mother who can name any man as the father in order to get welfare funds. The state gets more federal funding if there is a father named, so there is a big incentive to have a man listed so that the state can get support from him. There is no requirement that the man actually be the father. All the mother has to say is that the father is John Smith. She needs to offer no proof of even knowing the man, much less demonstrating a biological link between him and the child. She then provides an address for him, which also does not have to be accurate. She gets here welfare check and the state goes after the man to recoup the funds. The men often cannot be reached because the address the mother gave was not accurate, and typically, these men do not even find out about the paternity claim until their wages have been garnished and their time for appeal has expired. This is a fundamental injustice: men who have no notice of what is going on and no chance to disprove paternity have their wages taken from them, and the law will continue to force them to pay child support even if DNA evidence proves the man cannot be the father.
The second form of paternity fraud is what happened in my case. I was married to the mother and believed the child was mine. I fully accepted responsibility for him and was happy to support him. Later I discovered that the child was not actually my son, yet the court still required me to pay child support. This form of paternity fraud involves a man finding out he was not the father of a child he believed to be his own, but the courts still force him to pay child support—even if the biological father is in the picture.

B. Modern-day Slavery
Although it is true that on December 18, 1865, the 13th amendment of the Constitution formally freed the slaves, a different form of slavery remains active today. While pre-Civil War, slaves were “chattel slaves”—slaves whose owners held legal title of them—today’s slaves, though not “owned” by another individual in the same sense, are nonetheless involuntarily pressed into service by the plague of paternity fraud.
Almost no human condition can compare to the experience of the black American chattel slaves, of course, and I do not mean to belittle their plight, the effects of which continue to reverberate throughout our society some one-and-a-half centuries later. Rather, I merely mean to channel the outrage a decent society expresses towards slavery by highlighting its trait of involuntary and uncompensated servitude, a trait it shares with paternity fraud. Paternity fraud forces the victim to forfeit his wages to the fraud’s perpetrator. Refusing to work is not an option, and, as I frustratingly learned, the effects can easily and quickly progress beyond the point of legal recourse. As the 13th amendment prohibited such servitude in all its forms, the deplorable allowance of paternity fraud should not be allowed to stand.

C. Why Paternity Fraud Occurs
Although defining a child’s “best interest” is an inexact science, most would agree that a child’s best interest involves physical well-being and financial support. Determining who should ensure that well-being and provide the support requires establishing the child’s parentage. If the mother is married, the child is presumed to be the mother’s husband’s; however, if the mother is unmarried she has the broad power to name a father on the birth certificate.
In order to alleviate strains on the welfare system, the state desires to find a father. Thus, the state has made it frighteningly simple for an unwed mother to announce a father of her choosing. Because the mother is not bound to provide accurate information, the alleged father often does not receive notice of the paternity claim, and the window of time to challenge it expires. Frequently, men don’t even find out about any of this until their wages are garnished and it’s too late. Paternity fraud also occurs in cases like mine, when a man believes he is the father only to later find out he is not, but still has to pay for the child.

D. The Government’s Motivation
Many members of the public too readily accept the motives of the government and the courts at face value, believing that these institutions have no interests in mind other than those of the child. A closer look, however, reveals a far less compassionate financial motive.

If Michigan complies with Title 4D of the Social Security Act, it may receive a federal grant to fund its child support program. In order to encourage compliance, the
Federal government links the child support grant with the Temporary Assistance to Needy Families (TANF) grant. These conditional grants create an incentive for Michigan to collect as much child support as possible, calling into question the level of scrutiny given to the propriety of child support obligations. When single mothers receive welfare, legal, even if not biological, fathers forfeit much of their child support payments to the state in order to reimburse it for its assistance. The net effect of this scheme is that the more child support the state can award, the more revenue it can reap. Given that there are of approximately 800,000 custodial divorced parents in Michigan who receive Title 4D benefits, the state has much to gain by finding men to pay.
The citizens subject to this abuse must demand its end. Well-intended welfare reform is being used to against those it was supposed to help. Furthermore, the judicial system is fueling this abuse with unchecked awards of child support and an often-inaccessible appeals process.

E. The Actors
The child support system is a self-perpetuating machine of corruption fueled by greed and power. The foot soldier of the system is the attorney. Although I would highly recommend obtaining the advice of counsel for anyone going through this process, one must keep in mind that the attorney depends on conflict and animus for his or her livelihood. Furthermore, an attorney will not likely raise more than a token challenge to a judge’s authority or reputation, realizing that his or her career may depend on a good working relationship with that judge. This consideration may conflict directly with the interests of the client, and by extension the interests of the child. Although grievance procedures are available, my experience has shown them to be completely ineffective.
Another actor in the system is the Friend of the Court (FOC). The FOC is a statutorily enacted agency created to assist the court in family law cases by, among other things, investigating custody, parenting time, and child support collection, and making recommendations to the judge, to whom the FOC directly reports. Of these duties, the FOC tends to focus heavily on the child support collection, virtually never missing an opportunity to prosecute a “deadbeat.” By contrast, the FOC rarely intercedes upon learning of violations of parenting time. The reason is clear: enforcing child support generates revenue for the state, but enforcing parenting time does not.
Moreover, the FOC does not place nearly as much emphasis on delivering the support as it does collecting it. Michigan has almost $20 million in support funds that it has not delivered to recipients due to an inability to contact them. If the child’s best interest were truly its chief concern, however, the FOC would redouble its efforts to locate the recipients. Moreover, it would enforce the custodial parents’ legal duty to keep such information on file. As the FOC’s superior, the Chief Judge has the power to make this happen; yet it has not been done.

F. The Grievance Process
Anyone wishing to file a grievance against the FOC must do so with the director of the FOC who has 30 days to respond. Having a grievance heard by the very office that is the subject of the grievance presents obvious conflicts of interest.
Although the complainant can proceed beyond this level by appealing to the Chief Judge, this does little to assuage the conflict concerns since the FOC acts pursuant to the Chief Judge’s orders.
The state has attempted to address some of these issues, though not with great success. Governor Granholm recommended that each county in Michigan implement a citizens advisory committee as an alternative forum for complaints, but not all counties have followed this recommendation. Furthermore, the FOCs are supposed to assign each grievance a case number in order to better track the complaint, but instead of performing this task diligently, many FOCs liberally dismiss complaints and take no further action. There is some oversight; for example, each year a senate committee reviews grievances filed against the FOC in order to assess the FOC office.
For a while, some progress was made in holding the FOCs and judges accountable, including establishing independent oversight boards that were privy to closed FOC meetings. After controversial revelations, however, the oversight boards have been excluded from FOC meetings. Complainants may still file grievances against judges, but the state-employed attorneys require very high standards of proof to implicate a judge, and so these grievances rarely produce quantifiable results.

II. My Story
A. The Fraud
As I relate my story, you will see the various components of the system that I have described in action. My story spans 20 years and has culminated in ludicrous results, forcing me to reimburse the state for welfare that the mother of another man’s child fraudulently received and compelling me to pay child support to the child’s biological and custodial father. This did not happen as the result of unrelated coincidental misfortunes, but rather from a systematic corruption that infects Michigan’s legal system. What is worse is that my story is not an isolated anomaly, but one of many such atrocities that ruin lives each day.
When I was 19 years old I married my girlfriend. Two months later, I was a father, and a proud one at that. Soon thereafter, my wife gave birth to a second child—like the first, a boy. In our fifth year of marriage, however, we decided to split up. In almost no time at all, the mother reunited with an old flame. Initially, my wife filed for divorce. Later, I would file as well, but not until I had learned some shocking information about the children.
In the early stages of the divorce proceedings, the mother and the boys moved in with her ex-boyfriend. This act raised my suspicions, and they were confirmed when my ex-wife’s eldest son informed me that the ex-boyfriend was his real father (his mother told him as much). Despite this information, the court refused my several requests for a DNA paternity test because the mother testified repeatedly under oath that I was the biological father.
The court was less than sympathetic to my plight. My original counsel advised me that if I wanted to contest paternity, I needed to request a stay to seek new counsel. I immediately did so and obtained new counsel. The new attorney was unable to attend the judgment on such short notice, however, and I had to petition the court myself. Three times I asked for a stay to determine paternity and for representation, and three times I was denied. Over my objections, the judge entered the divorce judgment.
The judge patronizingly added that his children were adopted yet he loved them as his own. What difference, he seemed to imply, does paternity make?
After the initial proceedings had concluded, the court honored my request for a paternity test on the condition that its results be used only for medical purposes and not for legal purposes. The test was done and I awaited the results. In the meantime, my attorney appealed my case to the appellant court on the grounds that the judge had abused his discretion in denying my earlier requests in light of the disputed paternity.
Also during this period, my ex-wife declared her intention to isolate me from the two children, although the ex-boyfriend and biological father of the oldest son still refused to officially acknowledge his paternity. In furtherance of that effort she offered me a settlement, via our attorneys, that would eliminate my required child support and health insurance payments in exchange for my forfeiture of all visitation rights for both children. The FOC had brokered this deal and my attorney advised me to accept it and petition later to reinstate my visitation rights.

Against my better judgment and swayed by the specter of complete alienation from my son if I continued to fight, I accepted the deal. We went to court to finalize the settlement. The judge asked the mother if the settlement reflected the outcome she wanted, and she indicated that it did. But instead of asking me the same question, he accused me of wanting to sell my children, and began crossing terms off of the settlement. When he finished, he had eliminated my visitation rights and reinstated my child support and health insurance obligations for my ex-wife’s son. Somehow, I had gone from an unfavorable settlement to an unconscionable “agreement” that required me
to pay a father to support his own son but prohibited me from ever seeing that child (or my own child).
B. The Aftermath
Over the years following the decision, I had to develop coping mechanisms to deal with the anguish of alienation from my son and the burden of paying child support for another’s child. I learned to live with the child support and health insurance payments by thinking of them as taxes that came out of each paycheck—as a forgone conclusion of money I would never see. But I could not come up with any clever device for coping with the separation from my son or his brother. I would often find myself wondering what they were up to, how they were doing in school, and what they looked like. I also wondered what they were being told about the source of the money their mother received each month.

Eventually I remarried. At first, I was adamant that we would not have any children. My past experience had cut deeply and, although it seemed well outside the realm of possibilities in this relationship, I could not bear the thought of reliving the experience. As the passage of time assuaged my pain, however, I learned that this relationship was different. My lovely wife and I have now been together for 14 years and have a wonderful three-and-a-half year old son.
Although the pain healed somewhat, my curiosity about how this could have happened remained strong. I had paid over $80,000 in child support, and my employer had been billed almost $70,000 for child health care premiums. I had to investigate.

C. The Investigation
I began to request records from the FOC office. Even as a person with no legal training, I knew something was terribly wrong. My instincts led me to involve the media, who seemed to share my skepticism. They were more successful at obtaining documentation that I could not access. Several outlets aired revealing exposés that all asked the same question: how did this happen?
I began receiving a good deal of positive feedback from the public. My phone rang constantly and I received many letters expressing outrage and support, with some urging me to crusade for other victims of paternity fraud. Even a state senator, during a television interview, agreed that my case raised serious concerns and one must strain to fathom the judge’s reasoning.
In the meantime, I filed a motion to erase all debts owed to the mother and the biological father. This time, the court ruled in my favor. Furthermore, I was granted visitation to see my biological son, whom I had not been allowed to contact in over 15 years.
As my investigation moved forward, I began to learn just how out of the loop the FOC and the court had kept me. For example, I discovered that the mother, having abandoned both children to the eldest’s father’s care, had petitioned the court to redirect my child support payments to the father. Moreover, the court granted the request without any regard for the requirement that it notify all parties within 30 days to allow an opportunity for objections. Rather than notifying me within 30 days, the court allowed me to find out through my own personal investigation many years later.
Based on this information and a FOC bureau memorandum I discovered, that directed FOC offices and Chief Judges to adhere to the 30-day notice requirement, I filed a grievance against the FOC. Shortly thereafter, the State Inspector General’s office contacted me concerning an investigation into the mother’s welfare fraud. Apparently, as I was paying for her child’s health care, she was also receiving duplicative health care payments from other providers. Furthermore, the FOC knew that the mother had received payments from providers but shirked their duty to inform me, which would have allowed me to stop my payments.
The more I learned, the more I wanted to dig deeper. With this new welfare fraud information, I filed another grievance against the FOC. I wondered how the FOC could award the mother, and then the father of the eldest son, sole custody in light of these revelations.
The FOC should have known these facts, and yet it still concluded that living with these two, completely cut off from me, was in the best interest of the children—even my biological child. This, however, paled in comparison to what I learned next.
Recall that the mother and the FOC conspired to redirect my child support payments to the biological father without notifying me. This took place around 2001, soon after the court allowed the mother to abandon the children to the biological father, whose legal status was no more than “live-in boyfriend.” My research, however, uncovered the father’s felony complaint and arrest warrant from only four years prior. He had been convicted of a felony with a firearm and assault with a dangerous weapon.

Ironically, the state’s main witnesses included my ex-wife, some of her girlfriends, and the father’s own son. The episode involved the father returning home intoxicated and abusive. He brandished a rifle and took his own family hostage, destroying property and breaking windows. The son testified that the father told them they would all die. The police surrounded the home, and the father surrendered after a lengthy standoff.
Certainly, the court had access to these records, yet this felon is the man whose parental duties I had been subsidizing all those years. He is the man who the court deemed fit to raise my son and his. He is the man to whom the court awarded my son, entrusting him to keep my son and forbidding the boy from ever seeing me.

The FOC proved as unhelpful in the grievance process as it was in the proceedings. My first complaint went unanswered well past the 30-day limit. So did my second complaint. I filed a third grievance with the Chief Judge who, along with the FOC bureau, assured me an answer was forthcoming. After the time limit for all three grievances had come and gone, I received notice that each was outside the scope of the grievance process.
I appealed my denials to the Chief Judge, and once again received a negative response, this time with the word “DENIED” in all capitals. I also appealed to the FOC to try to stop my wage garnishment, which the state was using to reimburse the mother’s fraudulent health insurance payments. Although the state was aware of the fraud, they refused to stop my garnishment, meaning that I was forced to pay the state for money it had already been reimbursed. I have refused to pay, but to this day, the state continues to pursue my wages, placing a garnishment against my tax returns.

What Can Be Done?
III. A. The Problem
I do not claim that the entire government and court system in the state of Michigan is infested with corruption. Small pockets of corruption exist, however, and can ruin lives when they fester in chokepoints that cut off all recourse for people like me.
The Michigan court system does not operate autonomously, nor do the executive and legislative branches. Ultimately, the United States Constitution governs each to some degree. When the state denies its citizens of due process, the federal government must act to restore justice.

Sam Hasler said...

I almost rejected this rather long comment. Why?

First, it has nothing to do with Indiana. Then I thought it does show how different things are in different states.

Secondly, it shows that ignorance of the legal system can turn into a dislike of the system. I hope readers of this blog recognize they have rights to appeal which this fellow did not. I hope they recognize the need for attorneys in tricky cases.

I still regret publishing it as it does contain outright balderdash concerning "paternity fraud" but anyone reading the topics under my heading of paternity will know that.

Which leads to the third reason for publishing this comment - as a warning that things can go wrong if you do not know what you are getting into. I hope this blog educates people, dispels the mysteriousness of the legal system.

My readership - what there is - appears to be solely lay people. From what I see of the searches bringing people to this blog, most people are not looking for information as much as the answer to their specific question. Not a very good way to use this blog - or any other. You should look around - check out the subject archives. Answers might lie in an article but not in the form of your Google query.