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These letters, Hanschen says, are not adequate notice. "The Family Code laws are in conflict. One says you have to be served by a process server, with instructions to let you know this is serious stuff, as opposed to a one-page letter that says, 'Come down and talk,'" he maintains. "To give people proper due process rights, you have to give them proper notice."
Strickland, however, says the Child Support Division does in fact serve most presumed fathers by a constable or sheriff. But men often dodge service. "Obviously there are non-custodial parents who are not living up to their responsibility," he says.
Yet Hanschen isn't the only judge who has problems with the division's efforts to notify presumed fathers. Family court Judge Tena Callahan, who also came to the bench in the Democratic sweep, says she's had several child support cases with the attorney general's office in which inadequate notice has come up. "It's a problem," she says. "The presumption is they get [the letter], but sometimes they don't. And next thing they know they're getting child support taken out of their paychecks."
Whether men feel wronged by inadequate notice, misguided legal principles or dishonest mothers, those who find themselves paying for children who aren't theirs can turn to advocacy organizations that fight what they call paternity fraud. Carnell Smith, founder and executive director of Georgia-based U.S. Citizens Against Paternity Fraud, organized the group after discovering that a child he'd supposedly fathered with a former girlfriend and supported to the tune of $40,000 over 11 years wasn't actually his. The U.S. Supreme Court declined to hear his case, but Smith finally was relieved of the financial burden by legislation, which he has successfully spearheaded in several states—including Georgia—that allows men to use DNA tests to disprove previously acknowledged paternity.
Smith says thousands of men across the country have contacted him since he started the group in 2001, but he also hears from women, mostly the wives of men wrongly paying child support.
Dallas resident Belinda Odum-Gaston founded Texas Families Against Paternity Fraud after a lengthy legal battle to free her husband of financial responsibility for a child he didn't father. He had signed an Acknowledgement of Paternity after a woman with whom he'd had an affair claimed he fathered her son.
Odum-Gaston received a statement showing that the attorney general's office was seizing their joint tax refund to pay child support—her first indication that her husband had engaged in an affair and fathered a child. She confronted her husband, who had little contact with the child, and convinced him to get DNA testing. After test results revealed her husband was not the biological father, Odum-Gaston hired a private investigator to track down the real father and confirm his paternity.
"I was devastated [by the affair], but I was more devastated by how my husband was played," Odum-Gaston says. "I can't do anything about what two consenting adults did, but I damn sure can do something to protect the estate I've worked to accumulate."
Though the attorney general's office fought review of the case, the couple hired an attorney. They were relieved of the child support obligation, winning a $4,000 judgment against the mother.
To avoid such entanglements, Smith proposes that paternity testing be required before presumed fathers sign anything. Opponents say it would reduce fatherhood to biology alone and ruin family stability by allowing men who have already established fatherly relationships with children to disappear from their lives.
But to Hanschen and fellow family court judges Cherry and Callahan, the so-called family integrity protected by current law is often nonexistent. "What kind of integrity does this family have when someone is perpetrating a fraud against someone else?" Callahan says. "The law doesn't seem to care." Cherry agrees, saying more access to paternity testing would cut down on fraud and give judges more discretion to determine what's best for families on a case-by-case basis. "You may have a father who says, 'I don't care if he's not mine, he's my baby,'" she says. "But if there's a question, especially when there's misrepresentation and fraud, to slam the door shut [on paternity testing] is an injustice."
"I think the child has an innate right to know who his biological parents are," Hanschen adds, pointing out the importance of genetic testing for health reasons such as identifying hereditary diseases. "Part of the Family Code is that the child's interest overrides everything—I can't figure out how it's in the child's interest to lie to him about who his parents are."
Jack W. Marr, president of the Family Law Foundation, which lobbies lawmakers on family law issues, says presumptive fatherhood bears re-examination by the Texas Legislature. In a one-year period between 2005 and 2006, he says, at least eight cases in which presumed fathers turned out not to be biological fathers were sent to appeals courts statewide (Hanschen points out that since most of the division's cases involve indigent men who can't afford a lawyer much less an appeal, the number of contested cases is likely much higher). "That tells me that in Texas there's a serious problem that needs to be addressed," Marr says. "We're trying to solve it."
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