Nassau County Family Law Blog

Saturday, January 30, 2016

Two Cases in Washington State Highlight Painful and Ambiguous Paternity Issues

 Who is the "real" father?

It seems that in this day and age, when DNA tests are readily available, it should be easy enough to determine paternity and to assign clear rights and responsibilities. Two cases have arisen in Washington State, however, that bring paternal rights into question, in spite of DNA and paternity affidavits. A group of dismayed men and women are trying to get legislation passed to clarify the situation. This bill is known as the "Stop Paternity Fraud" bill or "the Brandon Jones Act."

Lost Son/ Lost Family

Brandon Jones has not seen the boy he called his son for more than 10 years. He says, "We were both robbed." Believing that he was indeed the boy's father, Jones had signed a paternity affidavit at the time of the boy's birth. For the next several years, which included a deployment to Iraq, Jones considered the boy a close member of his family. The boy bonded not only with him, but with his parents and grandparents, and, later, when Jones married, with wife and daughter. 

When the boy was 7 years old, Jones went to court in an attempt to increase his visitation rights. It was only then that the boy's mother presented DNA evidence showing that it was impossible that Jones was the boy's father. In a nightmarish twist of the King Solomon story, the court then declared that Jones had no visitation rights at all. To paraphrase Jones, the boy he called his son was "ripped out" of his life and out of the life of his extended family.

Ironically, and tragically, since Jones' name is still on the paternity affidavit, and since that document cannot be changed after four years have passed, he is still legally considered the boy's father and is required to pay monthly child support for a boy the court will not permit him to visit.

The Other Side of the Coin Is Equally Painful

C.J. Abernathey's case is a terrible reversal of the Jones case. Abernathey has not seen his 5- year-old daughter for a year and a half. He says losing the child "destroyed me." In his case, DNA proved that he is the child's biological father even though the child's mother was married to someone else at the time of the girl's birth. The mother's husband's name has been on the paternity affidavit right along, and though all parties knew and understood the actual situation, no one ever informed Abernathey about the four-year rule governing paternity affidavits. Recently, when visitation rights became a source of conflict, a judge ruled that Abernathey no longer has rights to see his biological daughter.

The System Fails

Clearly, in both of these cases, the legal system, complete with paternity affidavits and DNA evidence, has failed the children and "fathers" in question. Both men have now joined the group mentioned earlier that is attempting to change paternity laws so they do not "chop up" loving relationships. The group is working toward establishing the right of presumed parents to have two years from the time of the paternity test to take the case to court.

Although paternity laws differ from state to state, they are often complex and sometimes contradictory. No matter which state a parent resides in, it is always in his or her best interest to engage the services of a skilled and knowledgeable family attorney when dealing with paternity, visitation, and custody issues.

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