Sunday, April 09, 2006

Where have you gone, Charlie Chaplin?

A National Law Journal article on paternity fraud discusses the New Jersey case of a "legal" father suing a "biological" father for (past) child support after the "legal" father learned he was not the "biological" father:

Another new wrinkle in paternity disputes is men seeking reimbursement for child support payments.

That's at the heart of a recent case in New Jersey, where a man recently won the right to sue the biological father for nearly $110,000, the cost of raising the child. RAC v. PJS, 380 N.J. Super. 94 (N.J. App. Div. Aug. 31, 2005).

Although the NLJ article suggests that the 500-year-old English common law doctrine, which holds that a married man is always legally presumed to be the father of a child born of the marriage, might have been appropriate for the 1950's (meaning that married men were most likely the biological father in the 1950's) , the NLJ article entirely neglected the Charlie Chaplin case, in which blood type (rather than DNA) exonerated Chaplin, but the scientific evidence didn't matter. The conflict has existed far longer than the NLJ article suggests.

Wikipedia discusses the matter; here's a different post:

A blood test showed that it was impossible for Chaplin to be the father of Barry's child. However, at the time blood type evidence was not admissible in California courts. The first paternity trial ended in a mistrial. A second trial found Chaplin guilty and he was ordered to pay support until the child's 18th birthday.

"Clearly today, more than ever before, paternity is raised more frequently," said family law expert John P. Paone Jr. of Paone & Zaleski in Woodbridge, N.J., who believes old paternity laws don't work in today's world.

"The reality is that now there are women, as well as men, who are engaging in extramarital relations. Welcome to Desperate Housewives. Here we are," he said.

Paone, former chairman of the Family Law Section for the New Jersey State Bar Association, believes that new legislation is needed to reflect the change in societal mores.

"This presumption that a child born during the marriage is the biological child of the mother and father may no longer be appropriate," Paone said. "These things all worked very well in a 1950s lifestyle, but today that may be the exception to the rule," Paone said.


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