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How Do We Protect Fathers' Rights After Late, Negative DNA Tests?

Last year, Georgia passed a new law allowing men to ask the courts to set aside a previous determination of paternity if they receive new evidence that they are not the father of the child. The new evidence could be a negative paternity test performed years after the child's birth. When it comes to protecting fathers' rights, however, the law does have a couple of catches.

The first catch is that it is still very difficult to have legal paternity set aside if the man signed an acknowledgement of parentage, agreed to have his name on the birth certificate, or has been acting as the child's father and asserting his parental rights.

The second catch is that while setting aside paternity does serve to end child support obligations, it also legally ends all the father's other rights. What this means is that many men find themselves in the position of learning they are not the biological father of a child they love. They then face the choice of ending their loving relationship with the child or continuing to pay child support for another man's child.

In most states, once a man has been legally determined to be a father, that determination can never be reversed unless fraud is proved. He is the father, with child support obligations and, generally, child custody and visitation rights -- no matter what a later DNA test may reveal.

Strange Legal Results When Legal Paternity Is Conferred on the Wrong Man

In a story last winter in the New York Times Magazine, Professor Ruth Padawer of Columbia University's Graduate School of Journalism profiled a number of men dealing with the surprising legal results of having learned too late that they were not their children's biological fathers.

In one case, Mike L., a loving Pennsylvania father of an 11-year-old daughter, learned he was not his daughter's biological dad when she was seven. He continued paying child support and acting as his child's father until he learned that his ex-wife was getting married. The shocker: She was marrying the biological father. Suddenly, it seemed absurd and unfair that Mike should pay child support when his daughter's "real" father would be living with and caring for her.

Carnell Smith of Georgia founded U.S. Citizens Against Paternity Fraud in 2001 after his own struggle. When his daughter turned 11, Smith had a paternity test as part of a child support modification case. Years before, he had believed his ex-girlfriend when she told him she was pregnant with his child. He was wrong.

Smith's organization has succeeded in getting laws passed in Georgia and Ohio to address the situation. The idea is that a man who steps up to care for a child based on a mistake should never be punished for doing so. The current law encourages fathers to protect themselves by refusing to acknowledge paternity.

Dads in loving relationships with non-biological kids find the law confusing and challenging in another way. It does protect fathers' rights to child custody no matter what the DNA test says. But many feel it calls into question just exactly what a father is.

Related Resources:

  • "Who Knew I Was Not the Father?" (Professor Ruth Padawer, The New York Times Magazine, November 17, 2009)
  • Official Code of Georgia, Annotated §19-7-46
  • Official Code of Georgia, Annotated §19-7-54

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