Paternity fraud: the legalities

Destiny Man magazine, South Africa, Gillian Klawansky, November 4, 2014

Not just a scandalous soap opera plot, real people are affected when mothers lie about the paternity of their children. We uncover the legal consequences of these lies

It happens more frequently than many of us realise – a woman falls pregnant and is unsure of who the father is. Whether she’s married and trying to conceal an affair, or she’d prefer the lover she sees as more reliable to father her child, deciding to lie about her child’s paternity can have a devastating impact on all involved. Years may pass, but if the truth comes out (and it often does) the consequences are life-changing.

Apart from the emotional impact of this devastating discovery, there are also legal and financial ramifications for all involved. “There are many victims in this situation, and the mother will have to face the consequences,” says Johannesburg-based attorney Jennifer Scholtz.

Legal options
If a mother knowingly conceals the paternity of her child, she could be convicted of paternity fraud. “She could be criminally prosecuted, although proceeding in this way this could have a negative impact on the best interests of the child, who loves and cares for his or her mother,” says Scholtz.

However, the ‘false’ father, the biological father and the child could in fact all have legal claims against the mother, she explains.

• The man who was falsely led to believe he was the father has a monetary claim against the mother. “This is for all the money he has spent on the child from birth, which would include the child’s education costs, medical expenses and daily living expenses. He also has a claim for damages against the mother, for the pain and suffering she has caused him by pretending that he is the child’s biological father”.
• “The true biological father of the child would be a victim and have a damages claim against the mother for deliberately not disclosing that he had a child. He was given no opportunity to love and care for his child, or to see his child growing up. He was denied being a part of the child’s life.”
• “The child, who has established a healthy father-child relationship with a man who is not his or her biological father, and was never given an opportunity to know that father, would have a claim for damages against the mother.”

What’s at stake?
A woman whose deception is proved in such cases has very little wiggle room. “The only defence for the mother of the child would be that she was not aware that her partner was not the biological father of the child,” explains Scholtz. “If she can prove this, it would be very difficult for any damages claims to be brought against her.”

Considering the financial responsibilities that the man who believed he fathered the child has taken on, such damages claims could run into millions, warns Scholtz.

There is an untold number of men in SA who are unknowingly support children who aren’t their own.

Those who do find out often prefer to keep things low-key. “It appears that many cases of this nature in South Africa are settled out of court because there are few reported decisions,” says Scholtz.

“In Australia, the UK, and the USA, mothers are being forced to pay back thousands of dollars to men they wrongly claimed fathered their children,” she says. “In some cases, single mothers are deliberately naming the wrong man as the father of their children when making maintenance claims.”

Paternity tests
In such cases, a paternity test would usually be necessary, especially if the mother denies the claims. “The difficulty arises when the mother of the child refuses to grant a paternity test, which is a common occurrence,” says Scholtz. This can create problems as the law is unclear in these cases. “The mother can rely on our Constitution to refuse the paternity test, in that her rights to privacy and bodily integrity are infringed,” she says. “The father would need to prove that a paternity test would be in the best interests of the child.”

Outside of court, as a man who has suspicions about the true paternity of his child, you’re free to confront the mother about the issue and request a paternity test. Whether she consents or not is another issue.

The fact remains however, mothers who lie about the paternity of their children face the greatest threat of all, the loss of trust from the child they love. And that’s a very high price to pay.