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DADS Reported on Paternity in the Wall Street Journal

Courts Favor Ancient Paternity Rule Over DNA Tests

June 2, 1999, Page B1

For centuries, when families fought over who was a child's father, courts followed a rule known as the presumption of paternity.

The rule says that unless a man can show he Is sterile, impotent or, In the words of 18th-century British jurist William Blackstone, that he was beyond "the four seas bordering the kingdom" at the time of conception, he is the legal father of any child born to his wife during their marriage. First adopted by the Romans and then, 500 years ago, by the English, the rule was intended to prevent husbands from attacking their wives' fidelity in court.

Today, DNA testing can tell a married man with near certainty whether he is the father of his wife's child. But appeals courts in many states are disallowing genetic evidence in suits brought by husbands arguing they shouldn't pay child support. Instead, the courts are clinging to the old presumption of paternity rule.

The rule enjoys strong support from academics and women's groups. Joan Entmacher, an attorney with the National Women's Law Center, a nonprofit advocacy group in Washington, D.C., says genetic testing heightens rancor between divorcing parties at a time when courts are trying to make marital splits less adversarial and more focused on children's needs. "Just because testing is available doesn't mean we should allow it in every case," she says.

Many men disagree, including Gerald Miscovich, a computer programmer from Philadelphia, who lost a seven-year battle to avoid paying child support to his ex-wife. In December, the Pennsylvania Supreme Court voted to affirm a lower court ruling saying "family interests" outweighed the ordering of blood tests that might prove he isn't the father of his ex-wife's son, also named Gerald. The lower court had found Mr. Miscovich had clearly established a bond with the boy, who was four when Mr. Miscovich says he privately obtained DNA evidence of his nonpaternity. Mr. Miscovich tried unsuccessfully to get a hearing at the U.S. Supreme Court.

The high court last waded into the controversy in 1989, when it rejected a California man's effort to establish through DNA evidence that he was the biological father of a child born to his former lover and was therefore entitled to visitation and other legal rights. The woman and her husband objected. The court, by a 5-4 vote, ruled against the man, rejecting his view that California's presumption of paternity was unconstitutional. The state's policy excludes "inquiries into the child's paternity that would be destructive of family Integrity and privacy," wrote Justice Scalia.

Now men's groups are lobbying state legislatures in Pennsylvania, Michigan, Ohio and other states to change paternity laws. In an age of jet travel and in vitro fertilization, the presumption of paternity is Antiquated," says Victor Smith, president of Dads Against Discrimination, a lobbying and support group for divorced and unwed fathers in Portland, Ore. Mr. Smith argues that it's inconsistent that state child-welfare agencies can we the results of DNA testing to establish that an unmarried man is the father of a child, and therefore responsible for child support, but not allow a married man to use it to get out of paying.

Meanwhile, a panel of judges, academies and lawyers convened by the influential National Commission on Uniform State Laws is reviewing its model law on parentage in light of advances in DNA testing technology.

"Technology has stood 500 years of law on its head," says Paula Roberts, a Washington, D.C., lawyer who is an advisor to the panel. For the past 10 years, courts have allowed states to we DNA evidence to pin paternity on unmarried dads, recognizing that the probability of the tests' accuracy is now as high as 99.99%.

When the group's model law was first written in the 1950s and adopted by many states, Ms. Roberts says, tests based on blood typing could only establish that a man wasn't the father, leaving the courts without any way to determine who should
provide support.

In 1973, reflecting the development of more sophisticated blood tests, the model law was revised to give judges the option of allowing the tests as evidence until a child is five years old. About a dozen states follow that model.

Now, the panel is expected to back away from that approach, reflecting the insistence of many women that testing could prove emotionally and financially devastating to children. Ms. Roberts says the group will compromise and recommend that courts allow husbands to introduce genetic evidence of nonpaternity only before a child is two years old.

Any recommendation by the panel would have to be approved by the full National Commission on Uniform State Laws, by the American Bar Association and state legislatures before it becomes law.

Even if the group's recommendation had been law when Mr. Miscovich went to court, he would have been out of luck.

Although his son was 22 months old when he separated from his wife, Mr. Miscovich waited until the boy was four to have a DNA test. He did So at the urging of his new fiancee, who had pointed out that both Mr. Miscovich and his ex-wife had blue eyes and couldn't have produced the brown-eyed child.

"I agonized over the decision to tell him," Mr. Miscovich says.

He adds that his fiancee consulted a psychologist who said it would be better for the boy to know the truth. But when he finally told the boy, Mr. Miscovich says, his ex-wife moved across the state and told the child that Mr. Miscovich didn't care for him.

Mr. Miscovich hasn't seen the boy, now 11, since then, though he continues to pay more than $500 a month in child support.

Mr. Miscovich also says that, contrary to the court's conclusion, he never developed a strong bond with the boy. However, he adds that he would have liked to haven played "a limited nonparental role" in the boy's life.

Mr. Miscovich's former wife, who has since remarried, declined through her
lawyer to comment.

In Ohio, Dennis Caron, a corporate headhunter in Columbus, has brought a civil-rights suit in federal court alleging that the state's paternity law is unconstitutional because it violates the equal-protection and due-process rights of men.

After Mr. Caron's divorce was final in 1997, his ex-wife hinted that he wasn't the biological father of then seven-year-old Tommy, Mr. Caron says. Tests he subsequently had done on his own showed he wasn't the biological father, he says. He then tried to overturn the divorce-and avoid paying child support-by using the DNA test to prove fraud. The judge refused, he says.

Mr. Caron then stopped making court ordered child-support payments of $520 a month. He says he rarely sees Tommy and believes visits would cause Tommy who knows that someone else is his biological father, too much pain.

Andrea Yagoda, a Columbus, Ohio, lawyer who represents Gina Manfresca Mr. Caron's former wife, says her client "believes Mr. Caron is the biological father of the boy and has no reason to think otherwise."

Some trial-court judges, uncomfortable with imposing child support on men who may have been deceived about their children's origins, have accepted DNA evidence of nonpaternity.

In state court in Portland, Ore., Judge Paula Kurshner recently told Steve Albrecht, a disk jockey, that she would grant an unusual order of nonpaternity for his ex-wife's son, Tyler, coupled with the right to visit the boy, who turns two in August.

"I was there at the hospital and I raised him until he was a year and a half," says Mr. Albrecht.

Mr. Albrecht adds that he was in "complete sorrow" after receiving the results of the DNA test. Still, he says he is grateful that the ruling will save him $50,000 to $100,000 in child support and possibly college tuition.

His ex-wife, Lisa Albrecht, an apartment manager in Portland, says she agreed to the test because she believed it would prove Mr. Albreeht was the father of Tyler and would save her marriage.

Lisa Albrecht is now trying to get child, support from a former boyfriend, who she believes fathered her son.

"The DNA test destroyed my life and Tyler's life," she says. Her son, she adds, doesn't understand what has happened and just "wants his daddy."

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