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Proposed Paternity Fraud Legislation

 

 

A Proposed Bill Legislature for the Amendment of State Statutes relating to ,

Presumption of Paternity in Marital Cases, Fraudulent Practices and Paternity Determinations.

 

Definitions: Husband means current husband, ex-husband, ex-spouse, or a male married to:

the child’s biological mother when the child was conceived and/or born, the husband not being the child’s biological father as determined by DNA paternity testing.

 

1)      In all divorce and/or child support cases, DNA paternity testing shall be ordered by the Court, at the initial hearing,

            (effective date to be determined) except in the case of adopted children and children from a previous marriage.

a)    If DNA testing determines that the husband is not the biological father of one or more of the children the mother shall be required to identify all possible prospective paternity candidates.

i)  The mother’s lack of compliance in identifying prospective paternity candidates will be construed as Indirect Criminal Contempt of Court.

ii)  The penalties for lack of compliance will be the maximum allowed under the law.

b)    The Court shall require a child support obligation of the of the biological father.

c)    The  husband shall not be required to pay mandatory child support, nor be subject to any actions relating to child support obligations from the Court or Child Support Enforcement Agencies.

d)    If the biological father is deceased or cannot be located, the husband may make informed consent to pay child support, but shall not be obligated or required by law to pay child support. If the husband voluntarily consents to pay child support in place of the child’s biological father, he may elect at any time to cease paying child support upon sixty days notice to the mother and the court.

i)  The husband, if he is voluntarily paying the child support obligation in place of the child’s biological father, shall receive no interference from the children’s mother regarding visitation or contact with the child.

ii)  If the child’s mother interferes in the visitation of the current husband with the child he is supporting, the voluntary child support of the husband shall cease immediately without 60 days notice to the Court.

e)    The husband retains the right to sue the biological father or his estate for punitive damages and recovery of costs related to support of the child.

2)    Create a new subsection with sections in the Family Law Statutes allowing for retroactive restitution in past divorce cases where child support is or has been paid in which later DNA evidence shows that the husband was not the biological father of the child in question.

a)    The amount of the restitution will be the entire amount paid for the child in question, plus interest. The amount shall be calculated by setting up a schedule where each child support payment will be treated as if it were a deposit into a savings account at current compound interest rates.

3)    Create a Restitution Enforcement Program as part of the State  Department of Revenue Child Support Enforcement and Collection Agency in cases where there has been fraud or error in divorces which occurred prior to the Court Mandated DNA paternity testing.

a)    If the mother of the child offers restitution without requiring the ex-husband to bring a petition or motion in front of the Court, the interest rate used should be six percent and the interest compounded monthly.

i)  The State’s Attorney will not bring Criminal proceedings against the child’s mother for fraud.

b)    If the husband is forced to petition or motion the Court to request restitution and the mother of the child agrees without counter-argument, the interest rate used should be eight percent and the interest compounded monthly.

i)  The husband involved will be allowed to pursue Criminal  proceedings against the mother for fraud.

ii)  If the husband requests restitution before the Court and the mother files counter petitions to disallow restitution, the interest rate will be calculated at ten percent, and the interest compounding will be figured on a semi-monthly or weekly basis. (depending on the payment frequency in the original child support order). In this instance, it shall be mandated that the mother will bear all costs for paternity testing and court costs, including attorney fees for the ex-husband.

iii)  Criminal proceedings for Felony Perjury and Findings of Fraud against the mother would be automatically instituted by the State’s Attorney’s Office. 

c)    The above restitution schedules will not bar the defrauded father, or the child (either during minority or at majority) in proceeding with a civil damages lawsuit against the mother or the biological father.

d)    The amount of prior paid child support (principal and interest) shall be paid in a one time payment to the husband. 

i)  If a one time payment is not feasible, the mother’s wages would be garnisheed at the same percentage rate of previous child support payments.

ii)  If the husband is currently paying child support for other biological children born of the same marriage, then the child support payments shall be offset by the restitution amount.

iii)  The mother would be subject to the same actions for non-payment as a person not paying child support; i.e.;

           loss of drivers license

                                      loss of professional licenses, including suspension from the Bar

                                      seizure of IRS tax refunds

                                      seizure of worker’s compensation and other insurance moneys

                                      seizure of retirement, IRA, and Keogh funds

                                      seizure of bank accounts and personal property

                                      subject to jail time for contempt of court for non-payment of Court-ordered restitution.

4)    That the time limit for paternity challenges in divorce and child support proceedings shall be prior to the 21st birthday of the child, or if more than one child is involved, the time limit will be upon the 21st birthday of the youngest child.

5)    If during any legal action relating to child custody or support, or any time after the initial child support case is closed in which the husband has a child support obligation, the child’s mother states that “the child is not yours”, that will constitute Prima Fascia evidence of fraud and perjury with all punishments and penalties that entails.

6)    Modifications and amendments to State Statute xxx, Chapter xxx as follows will ensure:

a)    the rights of the child to know his biological heritage

b)    the establishment of parity for husbands’ in Family Court

c)    shall be deemed in the “Bests Interests of the Child”.

Proposed by Nadine G. Mendelsohn-Ziskind

 

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