On Aug. 31, a small but precedent-setting case was decided in the Superior Court of New Jersey. The plaintiff discovered he was not the biological father of his eldest 'son', now in his 30s. The court affirmed the duped dad's legal right to sue the natural father for the cost of raising the 'child' and removed some limitations imposed by a lower court.
The precedent: for the first time, New Jersey has extended a clear statutory deadline for filing on paternity cases. For the first time, a biological parent may be forced to pay child support for an offspring emancipated over 15 years ago.
The significance: family courts are beginning to reflect a growing impatience with paternity fraud; perhaps this is in reaction to a shift in societal attitudes.
Predictably, the pathbreaking New Jersey decision raises more questions. For example, if a deliberate fraud was perpetrated for 30 years by both the biological mother and father, why is only the father held liable?
The answer — right or wrong — lies in the facts of the case, which are as follows.
In 1957, RAC — the duped dad — and BEC were married; in 1980, they divorced. Three children resulted, including DC born in 1969. (Court documents reveal the parties only through initials.)
The mother was "virtually sure" that PJS was DC's father but she did not disclose this to her husband. Instead, PJS became the child's godfather. Upon divorce, RAC fulfilled the obligations of both child support and educational expenses for DC, all the while maintaining a close, loving relationship with the three children.
In 1996, DC — then 27-years-old — was about to wed. The mother revealed her paternity fraud to DC because his natural father had a pronounced family history of muscular dystrophy, a condition which could be genetically transmitted. She promised to inform RAC of the deception but waited three additional years to do so.
In September 2000, the sadly-enlightened RAC filed a complaint against PJS, which also named the mother and included a demand for DNA testing. PJS was the biological father and a judgment of paternity was entered against him in June 2002.
In February 2003, RAC was awarded $109,697 for child support reimbursement up to DC's 22nd birthday. The reimbursement excluded legal expenses and money spent on DC's education between the ages of 22 and 25.
The judge also dismissed RAC's claim for "fraudulent concealment and intentional infliction of emotional distress." This effectively barred a cross-complaint against the mother.
PJS countered with a technicality, albeit an important one. The time limit for initiating a paternity fraud suit had expired under New Jersey's Parentage Act before RAC had brought the original suit. The relevant passage states, "No action shall be brought under [the Parentage Act] more than five years after the child attains the age of majority."
Thus PJS claimed RAC's suit was invalid. RAC answered that information on paternity was concealed until the time limit had expired. In other words, PJS and the mother had "conspired" to prevent the very possibility of a legal remedy.
The Superior Court agreed with RAC...but only so far. The deadline for filing was waived. The Superior Court fell back on the intention of the Parentage Act rather than its specific wording. The Act was not intended to facilitate fraud; thus, the court extended the principle of "equitable tolling" to paternity fraud.
This principle states, "a statute of limitations will not bar a claim if despite use of due diligence the plaintiff did not or could not discover the injury until after the expiration of the limitations period."
The claim for legal fees was sent back to the lower court for reconsideration. But the claims of "fraudulent concealment" and "emotional distress" were denied, as was the filing of action against the mother.
Why was the mother exempted? The court found, "BEC owed plaintiff nothing for the support of DC" because she had also paid her fair share. Moreover, "the act of adultery...does not violate any law" and was mitigated by the joy and benefit "plaintiff enjoyed from the love and affection" of the "child he thought was his."
I am uncomfortable with this reasoning.
Adultery is not and should not be against the law; consenting adults have an absolute right to have sex together without government interference. The sexual act may be immoral or otherwise unsavory but it should not be illegal.
But making an innocent third party legally and financially responsible for the consequences of that sex act is an entirely different matter. And the mother must have perjured herself on several legal documents during the divorce and child settlement arrangements when she attested to RAC's fatherhood.
At least two questions bear on whether the mother should be liable. The first: should the law intrude into family matters? The second: if the law becomes involved, should fraud be tolerated?
My ideal society includes explicit contracts into which people voluntarily enter before becoming parents; DNA testing might be a standard provision. The law (or other third party) would become involved only as an arbiter of disputes or as a rescuer in cases of physical abuse.
That society doesn't exist. People resist parental contracts and the law inevitably becomes involved in competing claims over children.
And, when a legal proceeding occurs, intentional fraud should be punished. BEC — along with the natural father — committed intentional fraud.
The New Jersey decision is beneficial in granting increased recognition to the plight of paternity fraud. But an obvious problem remains. Two people committed fraud. Only one of them bears any liability.
Wendy McElroy is the editor of ifeminists.com and a research fellow for The Independent Institute in Oakland, Calif. She is the author and editor of many books and articles, including the new book, "Liberty for Women: Freedom and Feminism in the 21st Century" (Ivan R. Dee/Independent Institute, 2002). She lives with her husband in Canada.