If a man who is not the child’s father signs a birth certificate, paternity fraud charges against the mother might be just around the corner. According to most sources, between 5 and 10 percent of men are currently raising a child who is not their own.
In most states, paternity fraud is a tort, or civil matter. A mother could be liable for damages (including money for economic losses, such as wrongfully-paid child support, and noneconomic losses, such as pain and suffering) if she intentionally misrepresented a material fact to obtain a financial gain.
What is Paternity Fraud?
Significantly, misrepresenting is not the same thing as lying. Frequently, Jack asks Jill if he’s really the father. Jill responds defensively with a statement like “You know I love you and I’d never cheat on you.” She didn’t lie, or at least she didn’t lie about Jack’s paternity, but she misrepresented the truth.
There’s also a significant difference between misrepresentation and error. If Jill didn’t know Jack wasn’t the father, or she didn’t want to know the biological father’s identity, even if the outright tells Jack he’s the father, she probably has not committed paternity fraud.
We should touch on the marital parental presumption. In most states, a man who was married to the mother for 300 days before birth, or lived with the mother continuously during that period, is presumptively the child’s father, whether he signs the birth certificate or not.
Paternity fraud lawsuits often face statute of limitations problems. Usually, the statute of limitations in a fraud or other injury case is two years. In 20014, the California Supreme Court ruled that the statute of limitations does not apply in paternity fraud cases. A few other states followed this lead, but the law on this point is very uncertain in most jurisdictions.
Paternity fraud cases do not remove a man’s name from a child’s birth certificate. These lawsuits only order the mother to compensate the man for the aforementioned damages.
Occasionally, the man and woman both know the man isn’t the child’s biological father, but the man signs the birth certificate anyway. Technically, the man made a false statement on a government document, an offense that most district attorneys aggressively prosecute. But we couldn’t find any reported cases in this area.
Like other kinds of fraud, the defrauded party is not the only victim. The actual biological father has no parental rights, and the minor child is caught in the crossfire.
The takeaway is simple. When in doubt, a man should request a paternity test. DNA tests are completely noninvasive and 100 percent reliable. So, if Jill opposes the test, she probably doesn’t want Jack to know the results.
What Are the Aftershocks of Paternity Fraud?
As mentioned, if you sign the birth certificate and you are not the father, even if your paternity fraud lawsuit succeeds, you are still the child’s legal father. Only a court has that power.
In most states, the man must file a petition to terminate parental rights based on the mother’s fraud. The court will grant this motion and amend the birth certificate if the petitioner proves fraud and termination is in the child’s best interests.
We discussed fraud above. We want to reiterate that there’s a very big difference between fraud and mistake.
As for the child’s best interests, most states require judges to consider a number of factors before they reach their decisions, including:
- Parent’s relationship with the child,
- Child’s wishes,
- Parent’s wishes,
- Child’s special needs, and a parent’s ability (and willingness) to meet these needs,
- Prior family violence, and
A petition to terminate parental rights is much more likely to succeed if the child’s true biological father is willing to step in and assume the mantle of legal father, or if another man is willing to adopt the child. More on that below.
To most judges, the best interests of the child, which include financial support, outweigh trust issues between the parents.
This financial obligation is significant. Most states require obligors (people paying support) to pay cash support and provide health insurance for the child. Additionally, in many states, these obligations don’t end when the child turns 18. Illinois is one of many states that may require both parents to pay at least some post-secondary educational expenses.
If I Want to be a Child’s Legal Father, What Are My Options?
Unmarried parents who want to raise a child together and are unwilling to commit fraud basically have two legal options, adoption or name change.
Courts usually streamline stepparent adoptions. Most states waive the home study and some other requirements. If unmarried parents adopt a child, the adoption process could take several months, or even much longer.
Legal parents follow the rule of two. An adoption, stepparent or otherwise, cannot move forward unless one biological parent renounces his/her parental rights. Many parents understandably hesitate to take that step, as it means losing all visitation, inheritance, and all other rights.
Many parents who won’t agree to a termination may agree to a name change. These petitions don’t have the same legal effect as adoptions. However, at least everyone in the household has the same last name. That seemingly minor change greatly benefits children.