PATERNITY FRAUD - SUCCESSFUL WINNING STRATEGIES

�May 17, 2001, By Louis Kiefer and William O�Shea, Kiefer and O�Shea, Attorneys at Law
21 Oak Street, Suite 310, Hartford, Ct 06106

Note: Attorney Kiefer and O�Shea several years ago successful reopened a judgment of divorce, had the court make a finding that the presumed father was not the father of a 12 year old girl, had the court erase an arrearage of $4,000.00 and had the court order the mother to pay back $9,000.00 in child support collected by her failure to identify the father.

�The court today, with the use of DNA testing, does not have to have the wisdom of King Solomon to determine who the biological father is.�

There is nothing more outrageous in today jurisprudence that paternity fraud which requires the victim to pay thousands of dollars to the perpetrator of fraud; a system which places efficiency of injustice over the inefficiency of justice; and hides in failure to do justice under the herbage of �best interests of the child.�


The following represents the winning strategy to set aside the paternity fraud.

Proposition One: In politics and in paternity you cannot beat someone with nobody.

Proposition Two: Never depend on discovery to build a case because you won�t be permitted to obtain it and therefore won�t have a case.

Proposition Three: Bring all your actions at once, because if you don�t a loss in one court may prevent success in another.

Proposition Four: In civil actions, based on fraud you may be entitled to a jury.

Proposition Five: In civil actions, unless authorized by statute your ex wife will not be entitled to attorney�s fees.

Proposition Six: Never use non paternity as a defense in a child support enforcement action.


To succeed in trial you must (a) investigate (b) self educate and educate your lawyer (c) go on the offensive (d) strategize.

ESSENTIAL STEPS TO TAKE:

INVESTIGATION
1. PROVE, THROUGH COMPETENT MEDICAL TESTING THAT YOU ARE NOT THE FATHER.
This means that you are able to take the child for a mouth swab for saliva which, together with your can establish whether you are the father or not. The DNA no longer requires both parents; no only requires blood to be drawn.
You cannot provide it by statements of your ex-wife because at the last minute she will deny saying it. You need DNA evidence.

2. FIND OUT WHO IS MOST LIKELY THE BIOLOGICAL FATHER

This is important because you will sue him for:

(a) a finding that he is the father;
(b) that he pay back child support;
(c) that he provide medical insurance
(d) that he reimburse you for necessities

3. FIND OUT IF YOUR WIFE TOLD ANYBODY DURING HER PREGNANCY OR AFTER BUT BEFORE YOUR DIVORCE E THAT YOU WERE NOT THE FATHER.

In order to sue for fraud you must allege and prove the following:

(a) she made a statement which
(b) she knew was false
(c) upon which you relied to your detriment.

Her defense may be that it was just a mistake If you can prove that she knew you weren�t the father before the divorce you have evidence of fraud. In one case the wife had told a friend: �If my husband ever knew who the real father was, he�d kill me.� That was enough to show that she knew her statement was false. She didn�t have to identify at that time who the real father was - only that you weren�t the real father.

EDUCATE YOUR SELF and YOUR LAWYER

Research the following:

DID the court have jurisdiction of a child who was not the issue of the marriage? Issues of jurisdiction can be raised at any time. Black letter law was that a court could not award custody of a child of the marriage to a step-parent as part of a divorce action. Consequently you should be prepared with a legal brief showing that the court had no jurisdiction over the child and therefore could award neither custody or make an order of support.



DID the court have jurisdiction to terminate the biological parent�s rights without giving him notice?
This is the flip side of the first point. Some adoptions have been overturned because the father did not consent. Those cases sometimes involved fathers who did not know they had a child.

DOES the court have jurisdiction to identify the biological father and order him to pay support?
Generally one can bring a paternity action at any time during the child�s majority. Generally one can obtain past child support for a number of years, such as two or three.

DOES your jurisdiction have a Statute for Necessities?
The statute provides that any person, or institution who has provided necessities to a child may sue both parents for reimbursement. This is often used by hospitals, doctors and dentists, but can be used by drug stores, food stores (for food) and, probably by you if you have furnished necessities. However this statute would probably have a three or six year statute of limitation.

In Connecticut there was a case in which the divorce court said that father will be responsible for all medical bills. The child went into the Elmcrest Psychiatric Hospital who sued both the mother and the father. The mother claimed no duty because the divorce court had made the father responsible for future bills. The court said too bad. Both are liable notwithstanding the orders of the court.

DOES your state permit jury trials on fraud cases, contract cases, and if so, does it permit double damage or punitive damages or attorney�s fees in fraud cases.

LET'S ASSUME YOU HAVE IDENTIFIED THE REAL FATHER; YOU HAVE EVIDENCE THAT YOUR WIFE LIED ABOUT YOU BEING THE FATHER, AND THAT YOU CAN PROVE THAT YOU ARE NOT THE FATHER.

State two or three lawsuits as follows:
1. In the divorce court to reopen and set aside the finding of paternity and to establish paternity. Move to implead the bio father in that action. Move for blood tests of the bio-father.

2. In the civil court sue mother for fraud (or mutual mistake of fact) seeking money damages, and punitive damages.

3. Bring a suit against the bio father and mother for necessities and the bio father for past due support.

4. In the civil action, notice the person who did the DNA testing for a deposition; take the deposition and establish as a matter of fact that you are not the father.

5. In the civil action, notice the mother for a deposition and ask her who is the father, when she knew and if she told the father.

6. In the civil action, notice the bio father and see when he was told that he was or might be the father; whether he was having intercourse etc.

DON�T PIECEMEAL THE LITIGATION: START THEM ALL AT ONCE.
IF YOU PIECEMEAL, YOU MAY FIND THE DIVORCE COURT MAKING A FINDING THAT YOU ARE THE FATHER WHICH WILL BAR YOU IN THE CIVIL COURT.

DO NOT TAKE DEPOSITIONS IN THE FAMILY COURT
The judges will not be friendly in that court, may order you to pay attorneys fees etc. The judges in the civil court can�t order you to pay her fees.

WHEN YOU HAVE THE EVIDENCE IN THE FORM OF A DEPOSITION ABOUT THE DNA/AND MOTHER FILE A MOTION FOR SUMMARY JUDGMENT ATTACHING THE DEPOSITION TO THE MOTION. This can be filed in both courts and now the judge will have to look at the evidence and do some soul searching.


PREPARE FOR BEST INTEREST ARGUMENT IN FAMILY COURT

Here is where you may try different approaches. It becomes a strategic planning decision.
You may, in your motion in the family court, specifically allege the failure to have contact or a relationship; that the child will, for cultural, ethnic, or geographical reasons have a better chance with the bio father than with you. You may document the number of times of missed visitation; the relocation, or other facts to show that the best interest will be serve by having you removed and the other father substituted. He may have more money; more assets; she might get more child support under the guidelines. For medical diagnosis and treatment she may belong to a �favored� population or minority. She may, as a minority be entitled to preferences in hiring, and in education. Think of all the reasons why she would be better off. Make the allegation about best interests.

or, if you want to be devious, demand custody and more time and let the mother show that the daughter hates you. It�s a choice.

I would be interested in your thoughts after you consider this. You may e-mail me at Lkiefer1@hotmail.com.

Good luck