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