Last week, I set up the question about whether a man can be compelled to pay child support for a child who is not his. Short answer: yes, absolutely, it happens all the time. A man may acknowledge a child who is not his by mistake, or even by fraudulent misrepresentation by the mother, and fail to take the correct steps to renounce the acknowledgement in the very short time he has to do so. Once that deadline tolls, the child is his responsibility for life, even if there is 100% positive proof that he was duped into thinking he is the dad.
That may sound counter-intuitive, until you come at the question from the child’s perspective. Simply put, Louisiana believes whenever possible, children need two parents. It may be morally and ethically wrong for a mother to “trick” a man into paternity of her child. The greater social harm, from the perspective of a state with the third highest rate of out of wedlock births in the nation, is fatherless children.
The same logic dictates that when a man and a woman are married, any children born during the marriage are presumed to be the children of the husband. The husband can only overcome that presumption through “clear and convincing” evidence that he is not the father (a much higher burden than the normal, “more likely than not” preponderance of the evidence standard that usually guides civil cases). But he has to file suit to disavow the child in the very short time the law allows. Again, in Louisiana, the kids come first.
That leads us to a new question in our law, and the subject for today: what happens when there is no fraud or mistake. What if there is no question at all that he is not the child’s father? What if a man becomes involved with a pregnant woman, knowing full well the child she carries is not his, and the parties essentially “pretend” that he is the child’s dad? Everyone knows the alleged paternity is a convenient fiction right from the get-go. If things go sour, is he still presumed to be the father when no one disputes he isn’t?
That question was recently answered this past June, in the case of Wetta v. Wetta.
When they met, the soon-to-be Mrs. Wetta was already pregnant. She did not know who the father of the child was, but it was obvious the father was not Mr. Wetta. Nevertheless, Mr. Wetta, good guy that he was, married the pregnant Mrs. Wetta, and he signed a paternity acknowledgment when the child was born.
A couple of years later, for reasons unknown, the fairy tale ended when Mrs. Wetta filed for divorce. Family time was over, so in response Mr. Wetta asked the court to revoke the acknowledgement of paternity. However, the court elected to treat this as a disavowal action. So right off the bat, we hit a problem.
Last week, I touched on the fact that when you discover a child is not yours, you can file suit to disavow paternity. Also, if you signed an acknowledgment of paternity, like Mr, Wetta did, you can request that a court revoke the acknowledgment. These are often two sides of the same coin. In either case, the presumed father must overcome the presumption that he is the father by clear and convincing evidence.
However, Mr. Wetta argued that there was no presumption to rebut, because everyone knew he was not the father. His acknowledgment was essentially a creative fiction everyone played along with for the convenience of creating a family unit. The law allows revocation of a paternity acknowledgment, among other reasons, when “there is substantial likelihood that …. the person who executed the authentic act of acknowledgment is not the biological father.” Since it was not even disputed that Mr. Wetta was not the biological father, the court was required to revoke the acknowledgment. Logical, right?
If this argument sounds too clever for its own good, then you are starting to get it. Both the trial court and the appellate court found that Mr. Wetta’s argument missed the forest for the trees: the point of his request wasn’t to cancel the document he signed. He was trying to get out of being a dad. And while every nerdy judge loves a creative procedural argument, neither the trial court nor the appellate court was willing to let Mr. Wetta use procedural chicanery to get out of the obligation he knowingly undertook to take care of this child.
Confident in his argument, he paraded a litany of cases before the court where a party was deemed a ‘non-parent’ after the act of acknowledgment was nullified and the presumption of paternity rebutted. However, the court dryly noted, all of those cases took place before the law was changed in 2016.
Last week, we talked about the legislature revisiting paternity statutes in order to curb the alleged “epidemic” of men being roped into supporting children that were not theirs, and that for reasons unknown, the legislature ended up paradoxically burning some of the putative fathers it was ostensibly trying to help by restricting their ability to challenge paternity. Mr. Wetta is the perfect example of a man who got thoroughly roasted by those changes.
It was now no longer enough to revoke the acknowledgment. Mr. Wetta would have had to rebut the presumption he was not the father. Because he knew all along he was not the father, and because he waited too long to do it, it was now too late. Mr. Wetta is Daddy, now and (unless Mr. Wetta seeks review and the Louisiana Supreme Court says otherwise) for all time.
“What??” You may say. “Because everyone knew he was not the father, including him, he would have to overcome the presumption that he was the father, but it was too late for him to do it?!” Yup. There’s a bit more to it than that, of course, but this is a blog, not a brief. When it comes down to it, that was the ruling. Sounds a little Kafkaesque, doesn’t it?
Again, we have to bear in mind the unstated goal that I think explains both this ruling and the restrictions that emerged from the state’s efforts to reform its paternity laws in 2016. Maybe family law experts feel there is an epidemic of men getting stuck supporting kids that aren’t theirs. But there is an even bigger epidemic of kids without dads at all. This is obviously a balancing act; a zero-sum game with clear winners and losers. When it comes down to it, our legislature and our courts will usually come down on the side of the kids. In Wetta, the court sort of had to bend over backwards to get there, but it found a way. I find it odd that lawmakers and courts seem so reluctant to just come out and acknowledge the intention that must be behind their actions, but it is the explanation that best fits the facts.
If you are planning to disavow paternity, or to revoke an acknowledgment of a child you discover is not yours, you would do well to bear in mind that Louisiana’s prevalent “kids first” perspective means you are probably going to have a very steep hill to climb.
