Paying Child Support for Someone Else's Child: How a federal law traps men into paying child support.

Ricky was a junior at a state university (in MD) when his girlfriend sent him a text message saying, “I’m pregnant and we both know who the father is. Abortion is out of the question because I’m past three months.”

Ricky did what a responsible young man should do; he accepted responsibility for the baby.  He went to the doctor’s appointments with his girlfriend and planned for the baby’s arrival.  His parents took his girlfriend shopping for a crib and baby furniture for their grandchild. 

When the baby was born, Ricky was at the hospital with his girlfriend.  He signed the Affidavit of Parentage when the nurse handed to him acknowledging that he was the baby’s father.  He had no clue that he wasn’t the baby’s father until six months later when his parents confronted him. 

His mother told him that they didn’t think the baby looked like Ricky so they had a saliva test done (taking a swab of his saliva and the baby’s saliva and sending them to a lab for comparison).  The DNA test ruled out Ricky as the baby’s father.  Ricky then had his own DNA test done which also showed that he was “biologically excluded” as the baby’s father. 

When Ricky confronted his girlfriend, she acknowledged that he “probably” wasn’t the baby’s father.  His girlfriend agreed to take Ricky’s name off the birth certificate.  Initially, Ricky was disappointed by the news that this wasn’t his baby, but he decided to move on with his life. 

Two months later, a Sheriff’s deputy showed up at Ricky’s house and handed him a Summons and Complaint for child support.  The lawsuit was filed by the County’s Office of Child Support Enforcement (“the OCSE”) on behalf of his (now former) girlfriend.  Ricky thought it must be a mistake. 

After meeting with the woman at the County’s Child Support Enforcement Office (who ignored his pleas that he wasn’t the child’s father), he hired a lawyer to straighten things out.   He gave the lawyer his DNA test results (three different tests) showing he wasn’t the child’s father.  He felt certain that he wouldn’t be ordered to pay child support for someone else’s child.   

At the hearing, the trial judge found that Ricky’s evidence – his DNA tests proving that he wasn’t the father – wasn’t admissible.  Only a court-ordered DNA test would be admissible.  However, the judge ruled that he wasn’t entitled to a court-ordered test.  She reasoned that unless there was another father ready and willing to support this child, then this “father” was on the hook for child support.

I watched in disbelief as the Judge gave her ruling from the bench:

“The law says he’s the father [because he signed the Affidavit of Parentage] and so it becomes his job to explain why it’s in the child’s best interest to have a parent removed from the child’s life.  I will grant you that some of the law is – let’s say—behind the science, but until the legislature does something different . . . here we are.” 

In short, Ricky is stuck paying child support for the next 18 years for a child that isn’t his.  In his closing argument, the attorney for the OCSE added: “you know, if [Ricky] is resentful, then it is time to wake up and get over it.”  He suggested that Ricky raise the child as his own, anyway.

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A court order was entered requiring Ricky to pay $400 each month by wage garnishment -- about ¼ of his take-home pay each month.  Ironically, when his girlfriend told him she was pregnant he quit school and started working because he wanted to be able to support the baby.

I have been practicing Family Law in Maryland for more than 20 years and I had never seen anything quite like the upside-down world where a Court orders men to pay child support for other people’s children.  During that morning, I saw three men who were ordered to pay child support for children who weren’t theirs. 

Later, I found out that this practice wasn’t confined to this County, or to Maryland but it goes on all over the country.  It is part of a federal law whose intent is to collect child support from fathers to off-set the costs of providing support to unwed mothers.

According to the federal law (the Omnibus Budget Reconciliation Act of 1993), to continue receiving federal funds for unwed mothers states must establish “a method by which unmarried fathers could voluntarily acknowledge paternity ‘during the period immediately before or after the birth of a child.’” Davis v. Wicomico Co., 447 Md. 302 (2016) citing Pub. L. No. 103-66, § 13721, 107 Stat. 659 (1993). 

According to one of the drafters, the law is designed to take advantage of “that ‘magic moment’ immediately after birth when ‘many unmarried fathers visit their children in the hospital.’”  If the Affidavit of Parentage is not rescinded within 60 days, then it becomes a final.  In fact, the Affidavit becomes more than final.  It becomes binding for life!

A final judgment of paternity issued by a court order can be set aside (removed) if there is evidence showing that the paternity finding was mistaken.  However, after an Affidavit of Parentage becomes final it won’t be set aside – even if there is evidence that the parent is not the father. 

The law states that the Affidavit of Parentage should be set aside (or rescinded) after 60 days only if there is evidence of fraud, duress or material mistake of fact.  However, the judge in Ricky’s case skirted this provision of the law by ruling that Ricky’s DNA tests were not evidence of a material mistake of fact since they were not admissible as evidence. Therefore, the Affidavit of Parentage was binding until the court ordered a DNA test.  In a truly bizarre Catch-22, without a court-ordered DNA test, Ricky can’t get a court-ordered DNA test! 

While the Judge hoped that by compelling Ricky to pay support she could get him to become the child’s father.  It is unlikely that Ricky – and other men like him – will raise the children of the women who duped them into paying child support for 18 years.  Meanwhile, the child’s mother has financial incentive to tell the world (including the child) that Ricky is the child’s father -- since he can’t prove that he isn’t the father.

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When the child is four, or six, or ten years old and asks her mother, “where is my father?” How will her mother respond?  It seems likely that she will say that your father (Ricky) doesn’t want to see you -- which is blow to any child’s psyche.  Later, when the child learns that Ricky isn’t really her father but just a guy trapped into paying child support, what is she going to think about her mother? 

Meanwhile, the man who is this child’s biological father has no reason to come forward and be the father this child deserves (assuming he even knows about it).  The law can compel Ricky to pay child support, but it prevents this child from having a father participate in her life.  While the child’s biological father can’t be compelled to participate in her life, paying child support would give him a strong reason to get to know his daughter.  Ricky – and other men like him – will have little motivation to raise someone else’s daughter even if they are ordered to pay child support.

However, there seems to be hope on the horizon for Ricky and other “fathers” like him in Maryland.  Last week, Ricky’s case was heard by a 3-judge panel at the Court of Special Appeals (Maryland’s intermediate-level appellate court).  The 3-judge panel sharply criticized OCSE’s view of Maryland’s law on what it means to sign an Affidavit of Parentage.

Judge Robert McDonald who sits on the Court of Appeals (Maryland’s highest court), analyzed the relevant statute and legislative history in his dissenting opinion in Davis v. Wicomico County (2016).  Judge McDonald wrote:

“’[o]ur Legislature never stated that the ‘decent support of children’ should be imposed upon those who are found, conclusively, not to be the parent . . .’  Denying a paternity test to a person who signed an Affidavit of Parentage runs the risk of doing precisely the opposition of what the General Assembly intended.”  Davis citing Walter v. Gunter, 367 Md. 386, 399 (2002).  (It should be noted that Judge McDonald is an expert in statutory interpretation.)

Although Judge McDonald was writing for the dissent (the losing side) in Davis v. Wicomico County (the leading case in Maryland on this topic), Ricky’s case might change the law in Maryland.  In Davis, three judges of the Court of Appeals (out of 7) dissented.  A fourth judge (Adkins) stated that she would have sided with the dissent (creating a majority) if not for Mr. Davis’ failure to file a timely appeal (he filed his appeal two years after the judgment).  Ricky’s appeal was filed on time and therefore the court can address this issue squarely. 

 During the hearing at the Court of Special Appeals, one of the judges pointed out that according to the OCSE’s view of the law not only are “fathers” like Ricky denied a hearing or any other due process by signing an Affidavit of Parentage but the biological father’s rights to his child are also terminated without any due process.  By signing the Affidavit of Parentage during that “magic moment” following the birth, Ricky cuts off both his right to a hearing as well as the biological father’s rights.  This seems absurd but it is the law at this moment.

Ricky pays about ¼ of his income each month as child support and waits for the Court of Special Appeals to rule on his case.  While Ricky is certainly in a bad situation, the real victim is the child who will likely grow up without a father.  However, the County’s Office of Child Support Enforcement gets $400 every month just as the law intended, at least according to the trial judge and the OCSE.