Dusty
September 30th 04, 02:30 AM
Congress Supports Deadbeat Dads and Loose Women: Illinois Paternity Decision
Linked to Funding Scam
September 29, 2004
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by Roger F. Gay
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----
Last Thursday, the Illinois Supreme Court upheld a trial court's decision to
dismiss a disestablishment of paternity case that was filed because a DNA
test had proven that Romel Smith is not the father of Kendra Smith, daughter
of Valerie Dawson. As reported in the court's opinion, a DNA test "showed a
0% chance that he was Kendra's biological father." Romel Smith was denied
the opportunity to challenge paternity, remains the father of Kendra Smith
in the eyes of the law, and must continue to pay child support.
The case illustrates how complicated these matters have become for the
individuals involved and how reasonableness and common sense have been
drained from family law. The pertinent Illinois statute, the court's
decision, the trap that Romel Smith is in, and lack of acknowledgment and
support from Kendra's real father ultimately rest on compliance with a
federal statute for the purpose of obtaining federal funds. Federal statute
offers funding to states that deny men the opportunity to challenge
paternity if it is not done in a particular way, for particular reasons,
within a strict and very short time limit.
Because of funding rules, the fact that paternity was wrongfully established
cannot be pursued to its natural conclusion. This family and Romel Smith
have not been allowed the opportunity to adjust their situation to reality.
Instead, their conflict and its devastating consequences remain for the sake
of the state's interest in feeding at the federal trough; a bizarre and
unjust fate is forced upon them by rules that are entirely arbitrary and
unreasonable.
The details of the case and the law are a bit complicated to be sure. There
is a long route to discovering the link between the decision and federal
funding. It is eventually spelled out in the latter half of the supreme
court's decision. The trial court dismissed Romel Smith's petition for lack
of legal ground. The state appellate court reversed the decision giving
Romel Smith the right to proceed. The state supreme court reversed, agreeing
with the trial court that Romel Smith's petition does not support a
statutory right to challenge paternity.
The trial court relied on the provision of the Illinois Parentage Act that
voluntary acknowledgment of paternity cannot be challenged after 60 days has
passed from the time some further legal action (like establishment of a
child support order) makes use of the paternity decision. It also relied on
a provision that a voluntary acknowledgment may be challenged "only on the
basis of fraud, duress, or material mistake of fact." Despite the matter of
record that Romel did not suspect he was not the father until years after he
had acknowledged paternity, the trial court concluded that he had neither
met the 60 day requirement nor alleged fraud, duress, or material mistake of
fact. If he were allowed to proceed due merely to the fact that he is not
the father, it would according to the court, "render the acknowledgment
provision of the statute meaningless."
To the contrary, the appellate court pointed out that according to Illinois
law; "If, as a result of the deoxyribonucleic acid (DNA) tests, the
plaintiff is determined not to be the father of the child, the adjudication
of paternity and any orders regarding custody, visitation, and future
payments of support may be vacated." The court opined that the language and
intent of the statute is perfectly clear and rejected the trial court's
view, saying that it said "would render the entire section entirely
meaningless."
In response to issues raised by lawyers for the Department of Public Aid who
opposed paternity disestablishment, questions on the meaning of words were
taken up by the appellate court and further pursued by the supreme court. Th
e supreme court engages in a rather mind-numbing discussion on the meaning
of "adjudicating," "adjudication," "judgment," and "only." (It reminds one
of the difficulty Bill Clinton had with the word "is.") Reading this part of
the opinion is like watching a magic act. Attention is diverted to obtuse
legal argument over the meaning of words, while the central conflict - the
fact that Romel is not Kendra's father - disappears.
To resolve the conflict over the meaning of the statute based on its "plain
language" the supreme court looked at legislative history to discern the
intent of the state law. It is here that the link between the problem and
federal statute is established.
In 1996, changes in Title IV-D of the Social Security Act restricted
challenges to voluntary paternity to within 60 days of the time a child
support order is established, and required that "a voluntary acknowledgment
may be challenged in court only on the basis of fraud, duress, or material
mistake of fact, with the burden of proof on the challenger." (42 U.S.C.
§666(a)(5)(D)(ii-iii) (2000))
The Illinois legislature passed laws in 1997 and 1998 to bring the state
into conformance with the federal funding requirements. The problem of
unjust consequences had been placed before the legislature when Senator
Beverly Fawell introduced legislation to partially combat the problem in
limited cases. (Public Act 90-715)
"This is a bill that was brought to me by a constituent of mine who had a
problem that didn't seem to be solved any other way. He was married, he went
overseas, because he was in the Army. His wife had a child. Came back, his
wife had announced she wanted a divorce. They got the divorce. He, of
course, was ordered to pay child support, which he had no objection to. She
moved to another State. He kept saying, I want to see my son, she would not
allow him to see him until four years after the child was born. He then
found out that this child was not his through a DNA test." 90th Ill. Gen
Assem., Senate Proceedings, April 2, 1998, at 49 (statements of Senator
Fawell).
Further, Senator Fawell stated that the legislation;
"allows a man who has been adjudicated the father of a child pursuant to
the presumption that he is the father due to the marriage, if there is-a DNA
test discovers that the man is not the natural father, then the orders
involving custody, visitation and child support can be declared null and
void." (Emphasis added.) 90th Ill. Gen. Assem., Senate Proceedings, April 1,
1998, at 10
"Notably," the supreme court points out, "in the debates of neither the
House nor the Senate is there any mention of the presumptions arising out of
voluntary acknowledgments of paternity." (emphasis added) "Moreover, there
is nothing to indicate that the legislature sought to undo the sweeping and
comprehensive changes it had made just one year previously to bring Illinois
law into compliance with federal requirements."
------------------------------------------------------------
Eliminate the impossible and whatever
remains, no matter how improbable, must
be the truth.
---- Sir Arthur Conan Doyle ---
Linked to Funding Scam
September 29, 2004
----------------------------------------------------------------------------
----
by Roger F. Gay
----------------------------------------------------------------------------
----
Last Thursday, the Illinois Supreme Court upheld a trial court's decision to
dismiss a disestablishment of paternity case that was filed because a DNA
test had proven that Romel Smith is not the father of Kendra Smith, daughter
of Valerie Dawson. As reported in the court's opinion, a DNA test "showed a
0% chance that he was Kendra's biological father." Romel Smith was denied
the opportunity to challenge paternity, remains the father of Kendra Smith
in the eyes of the law, and must continue to pay child support.
The case illustrates how complicated these matters have become for the
individuals involved and how reasonableness and common sense have been
drained from family law. The pertinent Illinois statute, the court's
decision, the trap that Romel Smith is in, and lack of acknowledgment and
support from Kendra's real father ultimately rest on compliance with a
federal statute for the purpose of obtaining federal funds. Federal statute
offers funding to states that deny men the opportunity to challenge
paternity if it is not done in a particular way, for particular reasons,
within a strict and very short time limit.
Because of funding rules, the fact that paternity was wrongfully established
cannot be pursued to its natural conclusion. This family and Romel Smith
have not been allowed the opportunity to adjust their situation to reality.
Instead, their conflict and its devastating consequences remain for the sake
of the state's interest in feeding at the federal trough; a bizarre and
unjust fate is forced upon them by rules that are entirely arbitrary and
unreasonable.
The details of the case and the law are a bit complicated to be sure. There
is a long route to discovering the link between the decision and federal
funding. It is eventually spelled out in the latter half of the supreme
court's decision. The trial court dismissed Romel Smith's petition for lack
of legal ground. The state appellate court reversed the decision giving
Romel Smith the right to proceed. The state supreme court reversed, agreeing
with the trial court that Romel Smith's petition does not support a
statutory right to challenge paternity.
The trial court relied on the provision of the Illinois Parentage Act that
voluntary acknowledgment of paternity cannot be challenged after 60 days has
passed from the time some further legal action (like establishment of a
child support order) makes use of the paternity decision. It also relied on
a provision that a voluntary acknowledgment may be challenged "only on the
basis of fraud, duress, or material mistake of fact." Despite the matter of
record that Romel did not suspect he was not the father until years after he
had acknowledged paternity, the trial court concluded that he had neither
met the 60 day requirement nor alleged fraud, duress, or material mistake of
fact. If he were allowed to proceed due merely to the fact that he is not
the father, it would according to the court, "render the acknowledgment
provision of the statute meaningless."
To the contrary, the appellate court pointed out that according to Illinois
law; "If, as a result of the deoxyribonucleic acid (DNA) tests, the
plaintiff is determined not to be the father of the child, the adjudication
of paternity and any orders regarding custody, visitation, and future
payments of support may be vacated." The court opined that the language and
intent of the statute is perfectly clear and rejected the trial court's
view, saying that it said "would render the entire section entirely
meaningless."
In response to issues raised by lawyers for the Department of Public Aid who
opposed paternity disestablishment, questions on the meaning of words were
taken up by the appellate court and further pursued by the supreme court. Th
e supreme court engages in a rather mind-numbing discussion on the meaning
of "adjudicating," "adjudication," "judgment," and "only." (It reminds one
of the difficulty Bill Clinton had with the word "is.") Reading this part of
the opinion is like watching a magic act. Attention is diverted to obtuse
legal argument over the meaning of words, while the central conflict - the
fact that Romel is not Kendra's father - disappears.
To resolve the conflict over the meaning of the statute based on its "plain
language" the supreme court looked at legislative history to discern the
intent of the state law. It is here that the link between the problem and
federal statute is established.
In 1996, changes in Title IV-D of the Social Security Act restricted
challenges to voluntary paternity to within 60 days of the time a child
support order is established, and required that "a voluntary acknowledgment
may be challenged in court only on the basis of fraud, duress, or material
mistake of fact, with the burden of proof on the challenger." (42 U.S.C.
§666(a)(5)(D)(ii-iii) (2000))
The Illinois legislature passed laws in 1997 and 1998 to bring the state
into conformance with the federal funding requirements. The problem of
unjust consequences had been placed before the legislature when Senator
Beverly Fawell introduced legislation to partially combat the problem in
limited cases. (Public Act 90-715)
"This is a bill that was brought to me by a constituent of mine who had a
problem that didn't seem to be solved any other way. He was married, he went
overseas, because he was in the Army. His wife had a child. Came back, his
wife had announced she wanted a divorce. They got the divorce. He, of
course, was ordered to pay child support, which he had no objection to. She
moved to another State. He kept saying, I want to see my son, she would not
allow him to see him until four years after the child was born. He then
found out that this child was not his through a DNA test." 90th Ill. Gen
Assem., Senate Proceedings, April 2, 1998, at 49 (statements of Senator
Fawell).
Further, Senator Fawell stated that the legislation;
"allows a man who has been adjudicated the father of a child pursuant to
the presumption that he is the father due to the marriage, if there is-a DNA
test discovers that the man is not the natural father, then the orders
involving custody, visitation and child support can be declared null and
void." (Emphasis added.) 90th Ill. Gen. Assem., Senate Proceedings, April 1,
1998, at 10
"Notably," the supreme court points out, "in the debates of neither the
House nor the Senate is there any mention of the presumptions arising out of
voluntary acknowledgments of paternity." (emphasis added) "Moreover, there
is nothing to indicate that the legislature sought to undo the sweeping and
comprehensive changes it had made just one year previously to bring Illinois
law into compliance with federal requirements."
------------------------------------------------------------
Eliminate the impossible and whatever
remains, no matter how improbable, must
be the truth.
---- Sir Arthur Conan Doyle ---