Paternity Establishment and Paternity Fraud in Tennessee Child Support, Not Just One Man’s Nightmare
Paternity fraud is as likely to occur in Tennessee as it is in any other jurisdiction where child support is sought by the mother. Unfortunately, such deviousness is not just one man’s nightmare. Paternity fraud happens all too often and, once paternity is established, child support will be ordered by the court. If paternity goes unchallenged, then expect long-term legal and financial consequences for the man ordered to support another man’s offspring.
Watch Out for the Presumption of Paternity in Tennessee Law
To fully appreciate the potential for paternity fraud, we first discuss Tennessee’s presumption of parentage law. Under T.C.A. § 36-2-304, there are many ways a man can find himself paying child support, whether he is or was married to the child’s mother or not. If one of the following occurs, then the man is presumed to be the child’s father:
● The man was married to the woman when the child was born.
● The child was born within 300 days (10 months) following the couple’s divorce. Think about that for a moment.
● The child was born before the couple’s illegal, void, or voidable marriage.
● The child was born after the couple’s illegal, void, or voidable marriage and the man acknowledged paternity in writing (which was then filed in the putative father registry). Or he consents in writing to have his name entered on the birth certificate. Or he promises to support the child or the court orders him to pay child support.
● The minor child resides with the man who “openly holds the child out as [his] natural child.”
● DNA genetic testing shows the man is likely the biological father by at least a 95% statistical probability.
The presumption of parentage is rebuttable and may be challenged in court. But it requires legal action on the man’s part, there is no automatic elimination of the presumption. The standard of proof required to rebut the presumption of paternity is by a preponderance of the evidence. This is not a difficult standard to satisfy when compared to the more difficult burdens of proving something by clear and convincing evidence or, in criminal proceedings, beyond a reasonable doubt.
Statute of Limitations to Challenge Presumption of Paternity
But there is more to challenging the presumption of paternity than merely having a DNA test. The statute limits when a man can bring a challenge to the presumption of his paternity. For instance, with a married couple who file a sworn statement attesting that husband is child’s father, a one-year statute of limitations kicks in. The limitations period shortens the time when an establishment of parentage lawsuit can be maintained. The 12-month clock starts running when the child is born. If the limitations period expires and, consequently, paternity proceedings are dismissed, then that’s pretty much the end of it. Both parties are estopped, or prevented, from ever denying he is the father. (But see what happens with paternity fraud, as noted below.)
Finding of Paternity in the Divorce Decree
Importantly, if the couple’s divorce decree includes a finding that husband is not the biological father, or the parties agreed that he is not the father, then to have any hope of prevailing in a paternity establishment case and avoiding child support there must be scientific proof. The court should not consider depriving a child of legitimacy and financial support without some scientific test data to back it up – namely a DNA test. In the absence of DNA genetic test results excluding the man as the biological father, the judge should order him to pay child support.
Parentage By Agreement Between the Parties
The man and the child’s mother can agree to establish parentage without DNA genetic testing. The court may order such a test, but in an action to establish paternity and legitimize the child, the judge may order parentage without genetic test evidence. T.C.A. § 36-2-305. Be very careful what you agree to!
Petition to Establish Parentage
A complaint to establish parentage may be filed by: 1) a man claiming to be the child’s father; 2) the child’s mother; 3) the child (typically by a parent, guardian, or “next friend”); or 3) the Tennessee Dept. of Human Services (DHS). Once paternity is established, the court will issue a paternity order declaring the man is the father. And will order him to pay child support in keeping with the Tennessee Child Support Guidelines, including retroactive support from the child’s date of birth (as the judge deems appropriate under the circumstances). T.C.A. § 36-2-311.
What, if anything, can be done when paternity is already established, but the man is not the child’s biological father after all?
Paternity Fraud and Disestablishing Paternity in Tennessee
Once a man is determined to be the biological father, he has a legal obligation to support his child along with the mother. In a lawsuit, DNA genetic testing is used to establish paternity when the child’s parents are not married. Many a man has willingly, often eagerly, stepped forward and signed a voluntary acknowledgement of paternity (VAP) because he believed the child was his offspring. In either instance, with paternity established by court order or VAP, the biological dad may seek child custody, visitation, or parenting time without regard to his marital status.
Is the Child Yours? Paying Child Support for Another Man’s Child
An unmarried man who could have fathered the child should seek a court order declaring that he is the biological father and get a DNA test. If DNA test results show there is no possibility of paternity, then no child support order should issue against him. Unless the man adopts the child, he will not have any parental rights either. (Adoption necessitates child support orders, too).
Do not wait long to seek court-ordered DNA testing. If possible, prepare for such by meeting with a family lawyer before the child is born or shortly thereafter. If the paternity suit is not pursued timely, a child support order may be issued and the statute of limitations period may expire barring legal action. The potential consequences of delay? Eighteen or 19 years of supporting another man’s child.
Petition to Disestablish Paternity
But what happens when the man who is ordered to pay child support is not, in fact, the child’s father? What of the woman who convinces him he is the father, or leads him to believe it is so, when she knows he is not? Is there any recourse for the man who voluntarily acknowledges paternity, only to find out later through DNA testing that he was lied to, defrauded, or deliberately misled and is not the child’s dad? What about paternity fraud? Can the child support order be terminated along with parentage? Can anything be done to recover the child support already paid?
In Tennessee, the man can file a Petition to Disestablish Paternity seeking termination of parental rights and a stop to child support payments going forward from the date the petition was filed. (Even a successful disestablishment case will not eliminate support arrearages owed under the original support order, however.) To address past support and related injury, he may also file a separate civil fraud action to recover damages from the child’s mother.
The only alternative to recover past support already paid is to sue the mother for paternity fraud and, possibly, sue the biological father if he can be identified. Upon winning a judgment against the mother, the problem becomes one of collecting on the judgment. As Memphis TN attorney Miles Mason, Sr., noted when interviewed by Stephanie Scurlock (WREG Channel 3 – On Your Side Investigators), collecting on a judgment may be very difficult and probably unrealistic in the majority of cases.
To set the record straight, first the man should file a petition to disestablish paternity on grounds of fraud, being prepared to support the allegations and submit to DNA testing. The DNA test results must eliminate him from the statistical pool (less than 95%). Second, he can file a civil action to recover damages against the child’s mother for paternity fraud. Third, assuming damages are awarded, execute on the judgment and begin collection against the mother’s assets and income to pay for the damage award (for example, garnishing her wages or bank account).
What Is the Statute of Limitations for Disestablishment of Paternity?
Tennessee law allows for rescission of an otherwise enforceable voluntary acknowledgment of paternity. But the time allowed to rescind a VAP is very brief – only 60 days. T.C.A. § 24-7-113(c). (If fraud was not apparent when the VAP was signed, it may be just as secret two months later.) After the rescission period has passed, to terminate child support the man must institute a disestablishment of paternity action and be prepared to carry the burden of proof.
The Petition to Disestablish Paternity must be filed within five years (start counting from the day the VAP was signed) and must allege one or more of the following:
● Duress, or
● Material mistake of fact.
To disestablish paternity, court-ordered DNA evidence will be required once the likelihood of fraud, duress, or material mistake is shown. T.C.A. § 24-7-113(e).
There is one more option outside the five-year statute of limitations discussed above. If the man alleges “fraud in the procurement of the acknowledgement by the mother and where the requested relief will not affect the interests of the child, the state, or any Title IV-D agency,” then the five-year statute of limitations will not bar the action.
For an example of a successful disestablishment of paternity lawsuit initiated outside the five-year statute of limitations period, take a look at Jones v. Tennessee, W2006-00540-COA-R3-JV (2006). Jones v. Tenn. involved a direct appeal from the Shelby County juvenile court to the Court of Appeals:
“In addition to a showing of fraud, a party seeking relief under T.C.A. § 24-7-113 outside the five year statute of limitations, must also show that the requested relief will not affect the interest of the child, the state, or any Title IV-D agency. In this case, the trial court specifically found that this requirement is met, to wit: ‘There has not been a showing to the satisfaction of the Court that it would be adverse to the interest of the child to terminate parentage, nor has it been shown to the satisfaction of the Court that it would be adverse to the Title IV-D Agency to terminate the parental rights.’”
In yet another Tennessee civil case, the court awarded the woman’s former husband more than $134,800 in compensatory damages for past child support and related expenses, emotional distress, and attorneys’ fees. He had been supporting another man’s child for more than 15 years! Hodge v. Craig is an important case in that it involved a common law remedy for intentional misrepresentation by the child’s mother. This was not a disestablishment of paternity case, this was a common law action for damages. Hodge v. Craig, M2009-00930-SC-R11-CV (Tenn.Sup.Ct. 2012).
Filing a petition to disestablish paternity could stop future child support obligations. A civil lawsuit alleging paternity fraud could result in a damage award against the child’s mother for the child support paid, related expenses for medical care and healthcare insurance, plus other compensation and attorneys’ fees. If either of these alternatives seem appropriate in your circumstances, call your Memphis family lawyer!
Tennessee Child Support Enforcement
Take child support orders seriously. Once the order is issued, it must be obeyed to avoid punitive measures. Adamantly denying paternity will not make child support arrearages go away. Nor will such protestations prevent the court from holding the obligor in contempt.
We touched on some of the basics of child support in Tennessee, but the obligor (the alternative residential parent or ARP) should also have a firm understanding of child support enforcement methods.
Failing to pay child support violates the court’s order and could land the obligor-parent in jail for contempt, among other things (such as driver’s license suspension and loss of a professional license to practice). If you are struggling to make payments, discuss this with your lawyer as soon as possible. There are options, including modification, but the longer you wait, the more interest accrues on arrears, and the greater the likelihood the other parent or the state will seek to reduce the arrearage to a judgment (with 12% simple interest, court costs, and attorneys’ fees) and, thereafter, initiate debt collection.
When Is Jail Time Ordered for Not Paying Tennessee Child Support?
Many would argue that there is little benefit to jailing an ARP for unpaid child support. Doing so can quickly derail employment, almost ensuring he will fall further behind on payments. However, courts have authority to incarcerate individuals who violate their orders, so it does happen. A purge payment to get out of jail can be an effective enforcement method. Especially for the parent who has sufficient net income to meet child support obligations, but who chooses not to pay. Instead, preferring to spend the money on himself and others by taking expensive vacations, buying luxury goods, or gambling away money ear-marked for child support. To learn more about how courts enforce child support orders, read:
Consider the Alternatives
In the long-term, supporting another man’s child can be detrimental to the obligor and any family he raises. Whether because of ignorance of the truth or paternity fraud, living day-to-day under a court order for 18 to 19 years (and in some cases longer) takes much-needed resources away from the obligor’s adopted and biological children. His financial resources are depleted, his lifestyle is contracted, and his household may suffer under the burden. Money that would otherwise be available for his own family is filtered off to support someone else’s progeny.
If you could be the father, but are not married to the mother. If you were divorced recently, before your former wife gave birth. If there is any possibility that the child is not yours, then consider paternity establishment proceedings and court-ordered DNA testing.