Paternity Fraud

Paternity fraud is more common than you might think. It occurs when a mother misidentifies, either intentionally or accidentally, who the biological father of her child is. Through this, a man usually signs an affidavit or birth certificate agreement as proof of paternity, instead of ordering a DNA test. 

Paternity Fraud Could Go On For Years

Paternity fraud could go on for years, with a father continuing to pay child support, despite not being the biological father. It is crucial for a father to have proper genetic testing performed prior to accepting paternity. With the increased reliance on DNA testing, combined with a stronger degree of accuracy, a potential biological father will likely not be able to challenge paternity years down the road. 

The Court Will Decide Whether Child Support Payments Will Continue Once Paternity is Questioned

In cases of paternity fraud involving child support payments, it seems logical that payments should cease once it is determined that paternity had wrongly been established. However, it is at the Court’s discretion to decide whether payments should continue. The court looks to various factors in determining whether a father who is not the biological parent of a child, but has accepted paternity, should continue to make support payments. The factors include, but are not limited to:

  • The period of time that father has supported the child,
  • The role of the father and whether he has acted as the child’s father,
  • The child’s current age and how many more years of support are needed,
  • Whether ending the child support order would lead the child to become dependent on the state for financial care, and
  • The best interests of the child. 

Once Paternity is Accepted, A Father is Barred From Challenging Paternity

Once paternity is accepted, a father is barred from challenging paternity when a final decree of divorce states he is the father. This was seen in Slagle v. Slagle, a 1990 case from Virginia. It is important to note that this standard applies only when paternity has been judicially determined, through either a paternity order or a divorce decree. 

The Only Times That Paternity Can Be Challenged Are When There is a Reason to Doubt the Quality, Extensiveness, or Fairness of Procedures Followed

The only times that paternity can be challenged are when there is a reason to doubt the quality, extensiveness, or fairness of procedures followed in prior litigation. Additionally, a new scientific discovery could be a potential challenge to paternity once it has been established. Would the aforementioned 1990 case, Slagle v. Slagle, have a different outcome if it had occurred during the 2000s, when DNA testing had made drastic improvements, rendering a 99% accuracy rate? If the ability to test DNA existed at the time in which a potential father claimed paternity, and he chose not to have a DNA test performed, for any reason – cost, time, etc. – he is barred from challenging paternity.  

What Happens When Paternity is Induced by Fraud? 

In a recent case, a father had claimed paternity; relying on statements made by mother that provided clear and convincing evidence that he was the father. The couple has since divorced. In a fit of rage, the mother told the father, in an excited utterance, that the child (who is now in her thirties) was not his. The father had paid child support for the child for years. He now wanted to challenge paternity based on a change in material fact. The mother had fraudulently informed him that the child was his, when in fact it was not. 

The father could not be reimbursed for his support payments, but he was able to have his name removed from the paternity certificate and divorce decree, thus leading to an ounce of justice in an unfortunate situation.

An effective tactic in determining whether fraud was in fact used to induce paternity, counsel could ask the father, on cross-examination, a series of questions that resemble the following:

  • Had your wife made any excited utterances of this sort before?
  • You had doubt about whether you were the father?
  • You have entered into decrees establishing paternity over the years?
  • But still didn’t have it tested?
  • You relied solely on mother’s word, despite knowing there was trouble within the relationship?

This would be a legitimate line of questioning in a case in which paternity was now being challenged, years later, because of an excited utterance made by the mother. 

It is Best to Advise Clients to Determine Paternity Before Entering an Order for Paternity or Divorce, Because the Only Time It Can Be Changed is With New Material Facts  

Unfortunately, it is difficult to get reimbursed for child support payments, even if paternity tests conducted years later reveal that the man who made the payments is not the father. Additionally, paternity fraud is not considered a punishable crime. It is best to advise your client to determine paternity before entering an order for paternity or divorce, because the only time it can be changed is with new material facts.  

What Happens When Paternity Has Not Been Judicially Determined?

If paternity has not been judicially determined through either a paternity order or a divorce decree, a father can retract his claim for paternity. This was seen in Dunbar v. Hogan, a 1993 Virginia case. A father who discovered that he was not a child’s biological father after he entered a declaration of paternity was not barred from contesting paternity since no judicial determination had ever been made. 

In summary, it is best to advise your client’s to have a DNA or genetic test performed before establishing paternity, as paternity fraud is a common occurrence in the state. 

Special thanks to co-author and fellow researcher, Hayden-Anne Breedlove for her contribution with this article. Hayden-Anne Breedlove anticipates graduating from the University of Richmond School of Law in May of 2019.

H. Van Smith
Trusted Virginia Family Law Attorney Serving Richmond to Williamsburg