Forty-year-old John Jones of Redwood City logs on to MySpace.com, a website he visits regularly. Each visit, Jones navigates to the same spot, the photograph of a sandy-haired 11-year-old boy named Ethan. Ethan is Jones’ son–maybe. The father and son have never met or even spoken on the phone. Ethan’s picture on MySpace.com is their only connection–their only connection, that is, other than the child-support payments for Ethan that have been automatically deducted from Jones’ paychecks for the past nine years.
Financial responsibility began when Ethan’s mother named Jones–whose name has been altered here at his request–as the boy’s father on welfare paperwork. The 1996 Welfare Reform Act requires women to name their child’s father in order to receive public assistance, a law designed to recoup government welfare costs by garnishing the wages of “deadbeat dads.”
Under former California law, Jones had six months from the time he learned about Ethan to contest paternity. (That timeline has since been extended to two years.) Unaware of the deadline and unable to afford an attorney, Jones missed his chance. To this day, Jones does not have any proof that he is Ethan’s father. His only hope to find out lies with a little known piece of legislation set to expire in five months.
AB Two Five What?
Jones’ story is a prime example of the unintended and devastating consequences of well-intentioned child-support laws that stretch across the country. Florida passed a bill earlier this month that releases a man from paying child support if DNA proves he is not the biological father. A similar bill is being considered in Michigan. Colorado passed a law this year permitting men to challenge the paternity of alleged children during a divorce, separation or child-support hearing. Other states, including Ohio, Georgia, Maryland and Alabama, have passed similar laws that allow men to disestablish paternity.
In 2004, the California Legislature passed AB 252, a short-lived law that allows men named as fathers in default judgments two years from the law’s enactment to contest paternity via a DNA test. A default judgment is a case in which the mother claims paternity and the purported father does not agree or sign any paperwork. AB 252 includes language that promises debt relief, but not reimbursement, if paternity is disestablished. This holds the greatest promise for men like Jones, who have accumulated massive debt and have just a few months left to take advantage of AB 252’s grandfather clause; the window for AB 252 expires on Jan. 1, 2007.
Jones learned of AB 252 while being interviewed for this article. He says he will contest paternity; however, he is battle-weary and half-inclined to give up. In the nine years since a back-calculated child-support bill landed on his doorstep, Jones has had his driver’s license and his state contractor license suspended and his wages and tax returns intercepted. He has visited Sacramento more than a dozen times in search of his ex-girlfriend, hired a private detective, commissioned two attorneys and finally, in desperation, given up and gone underground (working, at times, under the table) to avoid child-support bills of over $100,000.
“I don’t know how I’ll ever pay it off,” Jones says of the debt. “I’m forced to be in hiding for the rest of my life.”
Dad by Default
Jones’ story began 12 years ago in Sacramento when he met a pretty blonde girl named Michelle at a coffee bar. The couple struck up a relationship, hanging out at coffee shops and shopping at the mall. After four months, Jones decided Michelle wasn’t the one and ended the relationship.
Four months later, Jones learned second-hand that Michelle was pregnant and naming him as the father. Jones contacted Michelle, offered to help and began preparing for fatherhood. Several months later the couple had an argument that escalated to the point where Michelle told Jones that the baby was not his. She told him to leave, and he did.
Two-and-a-half years later, Jones was visited by a process server bearing a hefty bill–he recalls it being $20,000–for child support in arrears. The bill compelled Jones to begin paying, and ordered his appearance in court to sign or contest the declaration of paternity.
“I was completely surprised because she told me it wasn’t my kid,” says Jones. “I thought I’d just call Michelle and straighten things out.”
Jones hunted for Michelle, but did not attend his court hearing, a decision he regrets to this day. By not appearing for his hearing, the court registered him by default judgment as Ethan’s father in the California child-support-services database. A few months later, Jones’ six-month window to contest paternity closed.
Unaware of the severity of these occurrences, Jones continued to search on his own for Michelle and his alleged son. He called former friends and acquaintances. He took trips to Sacramento to scour old hangouts and neighborhoods where she had lived. At other times, exhausted and angry, he simply ignored the situation, which continued to worsen. The government started to garnish wages from his paychecks. Seven years later, Jones hired a private detective, who found Michelle. She was living in Carmichael, Calif., working at a Starbucks. She had married and had another child.
Jones approached Michelle’s new husband. “I told him, ‘I just want to talk to Michelle over the phone and resolve this out of court.’ I gave him my phone number. I never heard from her,” Jones says.
The bills continued to arrive in the mail, and money continued to disappear from Jones’ paychecks. As the gravity of his situation became clearer, Jones retained legal help. After a frustrating year in which his first attorney failed to get results, Jones hired attorney David Brown of Sacramento.
Brown told Jones his chances of getting a court to order a DNA test so long after the six-month period had ended were not good. Unless he had not been served, or had been physically incapable of attending his hearing, the judge would likely deny the request. Neither exception applied to Jones. He did not fight.
Santa Ana family-law attorney Linda Ferrer is no stranger to stories like Jones’. Somewhat of a hero within paternity-rights circles, she has become the go-to attorney in California for men seeking to disestablish paternity.
In 1994, Ferrer won a landmark paternity fraud case for Manuel Navarro of Los Angeles, relieving him of financial responsibility for two children, who as DNA testing proved, were not his own. She took Navarro’s case to court more than five years after the six-month window to contest paternity had closed–and she won.
Like Jones, Navarro had never met the children. Furthermore, he had not been properly served.
In 1996, a woman named a Manuel Nava as the father of her twin boys. A process service delivered a summons via “substitute service” with someone identified as Navarro’s sister. When he didn’t respond within 30 days, the court named him father by default and established a $247-a-month child-support order.
In 2001, armed with DNA proof that he was not the father, Ferrer sued on Navarro’s behalf to terminate his child-support order. A lower court, following the law, denied Navarro, arguing too much time had elapsed. Ferrer won Navarro’s case on appeal.
“The argument that won the case was that the DA already knew that he was not the father, they had DNA evidence to prove it and they were still going after him,” says Ferrer.
The California Court of Appeal for the Second District said in the Navarro case that the county “should not enforce child support judgments it knows to be unfounded. [W]hen a mistake occurs in a child support action, the county must correct it, not exploit it.”
However, Navarro’s ruling is only a partial victory. He must make peace with money paid out in the years before paternity was disestablished. Offering reimbursement on money paid would violate the Bradley Amendment, a federal law that prevents the retroactive modification of child-support orders. States must adhere to the Bradley Amendment or lose federal welfare and child-support funding.
Astonishingly, some states have taken this risk. Alaska has given its administrative agency the authority to forgive child-support debt when it disestablishes paternity. Georgia requires the court to address the issue of back debt, and Iowa requires courts to declare unpaid support satisfied. Other states, including Michigan, are considering such legislation.
For its part, California has not considered debt-forgiveness legislation, and has further rejected giving potential fathers more time to contest paternity.
Taron James first discovered that the state considered him a father in 1996, when the DMV notified him they would be suspending his driver’s license for failure to pay child support.
In 2000, James finally made contact with his ex-girlfriend. “I approached her friends and family, and I said, ‘Make me the bad guy, prove me wrong,'” James says, explaining his quest for a DNA test. When she finally acquiesced, the test exonerated James.
But his battle was far from over. Even armed with this evidence, it took James five years to have a court disestablish paternity. The remedy was bittersweet. “The judge said I was a clear victim of fraud, but he also said that child-support services was a victim of fraud, too, so they shouldn’t have to pay the money back.”
James says his fight is still not over. On his own dime, he will go to court–again–to get his name legally removed from the child’s birth certificate. He must also rescue his abysmal credit, which was badly scarred during the years he supported somebody else’s son.
“This is the thanks I get for my contribution to the Gulf War and Somalia,” James says. “As a veteran and as a citizen, I’ve got to tell you, I’m really pissed off.”
Are You Being Served?
Paula Roberts, senior staff attorney at the Center for Law and Social Policy (CLASP), a nonprofit that works to improve the lives of low-income people, says she sympathizes with men who are not properly served, but those that are served have nothing to complain about.
“If you haven’t been served, that’s one thing, but if you got your notice and you chose not to show up, there are consequences to that,” says Roberts. “The law generally does not have a lot of sympathy for those who choose not to appear.”
Carnell Smith, founder of U.S. Citizens Against Paternity Fraud, counters that men unfamiliar with the legal system do indeed deserve sympathy.
“There’s a broad assumption that men understand the legal arena and how family law works, but at the same time, no one is providing that information,” he says. “These men are not fully aware of what it means when someone says, ‘You’ve been served, or you’ve been attempted to be served [and if you don’t appear], you will become a victim of a default judgment.'”
Roberts agrees about the general lack of legal sophistication, but says that “one of the bedrocks of our legal system is that if you get served with legal papers you have to show up and respond to the charges.”
The logic of the six-month limitation on contesting paternity holds that once children establish a meaningful belief about who their father is, they could suffer severe emotional and financial harm if this understanding is severed. The law aims to prevent men from abandoning children they discover are not theirs, mostly due to extramarital affairs. But in its application, the law affects many people who were never intended to be its targets–even men who have never met their alleged children.
Not all family-law attorneys think this is an equitable or just law. David Brown, the Sacramento family-law attorney who represented Jones, is one of them.
“My opinion is that if you do not have contact with the child, if you do not have a relationship established, what’s the harm [in doing a paternity test]?” Brown says. “[Jones] may be very inclined to get involved with the child if he knows that it’s his.”
Glenn Sacks, a men’s rights advocate who operates GlennSacks.com and writes men’s rights newspaper columns, says AB 252 is better than nothing, but not good enough.
“The problem is that time is running out,” Sacks says. “A certain amount of men have been going to court and getting the paternity test and are getting let off the hook. But a lot of guys don’t know about this. What should be happening is child-enforcement people should be sending notices to everyone saying there is this new law.”
Child-support services don’t disseminate this information, say critics, because doing so could mean losing paying fathers and therefore significant federal funding.
Indeed, states must name fathers in 90 percent of their child-support welfare cases or risk losing federal money. To comply, states have taken liberally to the use of “default judgments” when the alleged father cannot be located.
In Los Angeles County, nearly 80 percent of paternity establishments in 2000-2001 came from default judgments. In California as a whole, a whopping 70 percent were default judgments, according to midyear reports from the California Department of Child Support Services.
“You have a particular problem in California,” admits Paula Roberts. “If 80 percent of your orders are default orders, then you must be doing something wrong. Most states, it’s probably between 10 and 20 percent.”
“It might be the right name, it might be the wrong name, it might be someone she thinks is the father but is not sure,” says Sacks about fathers named in default judgments. “Also, it might be Juan Gomez and there are 11,000 Juan Gomezes, and then the correct person is not properly served and then a default judgment is entered against him for 18 years of child support for a kid he’s never met, and in many cases, may not even be his.”
Ten Percent Rule
Supporters of existing child-support laws say the regulations are just and were written to apprehend dads skirting financial responsibility. If a few innocent men get dragged down with the hundreds of thousands who criminally skirt their responsibilities, that’s the breaks.
“Do I think occasionally there are gross injustices?” asks Roberts. “Yes. But the law is a set of rules that works well most of the time. The law is not perfect. It’s got to be the rules that work most of the time for most of the people.”
Many well-intentioned laws create unintended consequences, considered a small price to pay in the name of a greater good. Most men apprehended for unpaid child support are the biological fathers. Only a small percentage are getting screwed. Nearly $18 billion is collected annually in child support. If men are not apprehended and made to pay, taxpayer-funded welfare agencies will be forced to make up the difference.
In 2000-2001, the California Child Support Program collected $1.9 billion, of which approximately 70 percent came from child-support orders–many of them wage garnishments–according to a 2004 Urban Institute report. Over all, some $271 million in child support is collected in California each year, which would not be paid without existing collection laws.
In addition to sparing taxpayers, child-enforcement laws have other redeeming qualities. A 2002 Urban Institute report maintains that fathers with a child-support order were more likely to visit and develop a relationship with their child.
But even those who righteously chant “pay up” cannot deny that the system is far from perfect. Of the money owed for child support in California, less than half is paid. Taxpayers bear the remaining burden of this unpaid debt.
In March 2000, 60 percent of noncustodial parents in California owed back debt of $14.4 billion, according to a 2002 CLASP report. The report blamed California’s practice of charging 10 percent interest on unpaid support and requiring that interest be paid off before principal. The report further concluded that too much money was being asked of fathers who had little or no income. California has been harshly criticized for this 10 percent interest rate, which is more than 25 percent higher than a standard mortgage rate.
Glenn Sacks says charging interest only hurts a state’s likelihood of collecting back debt. “Say there are two guys, Bob and Joe. Bob has a credit card with a $3,500 balance, and Joe has one with a $35,000 balance. Who’s more likely to make payments?”
John Jones recalls the enormous bill he first received, compiling back payments from his alleged son’s birth compounded with interest. “If they had said, ‘We are going to start from this day forward,’ I probably would have paid, but the back charges and interest made it an insurmountable obstacle.”
Public policy reports have encouraged California state legislatures to take a realistic approach to solving the debt issue. While the state would obviously like to recoup as much possible, dumping this huge burden on the shoulders of the poor is not achieving this goal.
While not politically correct, another question also remains: What responsibility do the mothers have? It is the mother who writes the alleged father’s name on the paper work. Is she at all culpable when DNA proves the opposite?
So far lawmakers haven’t dared approach this issue with a 10-foot pole.
Jones will use AB 252 to obtain a paternity test. If DNA exonerates him, he could be freed from his back debt amounting to some $100,000. In the mean time, when the bills come in the mail, Jones admits he throws them in the trash. “If I ever win the lottery, I’ll pay them off. Then I can have my life back,” he says.