Fighting Paternity-Fraud Bureaucracy State's Process Crushes All Contrary Evidence, Critics Say

By Susan McRae

Daily Journal Staff Writer

LOS ANGELES -Taron James is fighting back.

The Gulf War veteran contends that officials have snared him in a paternity-fraud nightmare with no end in sight. It's all because of an unforgiving state law that makes it nearly impossible for a man to challenge a paternity judgment once it's been entered, even if he later turns up DNA evidence excluding him as the father, James said.

He spent eight years trying to get a default judgment against him set aside, including conducting genetic testing to prove he was not the father.

Now, the Torrance man has decided to sue Los Angeles County, alleging officials illegally forced him into supporting a child who isn't his.

James, 34, said he was never notified about a hearing that resulted in his wages being garnisheed. The court action drove him into bankruptcy, he said.

"I can't believe the system operates like this and is allowed to continue to operate like this," James said from the South Bay home of his aunt, where he's lived since his money ran out.

His complaint, filed last month, also names the child's mother, Tami Burton, who James said acted with reckless disregard for the truth when she told county welfare and child-support officials that he was the father of her child, while knowing he was not or "at minimum was not certain" that he was. James v. Burton, BC312873 (L.A. Super. Ct., filed March 29, 2004).

The lawsuit alleges fraud and negligence against Burton and claims the county violated his due-process and equal-protection rights, among other causes of action.

Burton, who lives in Arizona with her son and husband, could not be reached for comment. James isn't alone in his predicament.

Philip Browning, director of the county's child support services office, said the department's rate of default judgments, in which the defendant doesn't show up and the court issues a judgment against him, stands at 48 percent. The state's rate is 47 percent, Browning added.

"I feel so bad for some of these situations," Browning said.

He added that California is one of the few states that does not allow for overturning a paternity order once a judgment has been entered. "It just doesn't seem fair to me," Browning said.

An assemblywoman is sponsoring legislation, which, if passed, would extend the time limit to contest a default paternity judgment to two years from when a man "knew or should have known" he had been named as the father in a court action.

AB252 by Assemblywoman Hannah-Beth Jackson, D-Santa Barbara, also would provide a two-year amnesty from the time of its enactment to allow men to contest past cases.

James claims that Burton was after his military benefits and that a growing number of veterans are facing similar claims.

His case has become a cause célèbre among lawyers and grass-roots men's groups that advocate for child custody and support reform.

James also spawned a group, Veterans Fighting Paternity Fraud, that supports Jackson's legislation and encourages men to consult a family law attorney in these situations.

James' complaint reiterates his claim made eight years ago that county officials never notified him that a petition for child support had been filed against him. He said the first he knew of it was when the Department of Motor Vehicles informed him that his driver's license had been suspended for failing to make child-support payments. By then, James said, the default judgment was in force, and it was too late to do anything about it -although he tried, without success.

The suit seeks from the county and Burton the $19,000 James was forced to pay. It also asks that his paternity judgment be set aside permanently, that he be relieved of any further debt and that his credit be restored.

Browning said that he's sympathetic to James' claim but that the office can do nothing. "The problem is the law," he said. "As it's currently written, it does not allow us to right this situation."

Child advocates said the laws were written to protect the children, so a father cannot just walk away or delay or defer payments by going to court.

Under California law, a man can be declared a father if he has established a relationship with a woman and assumed parenting duties, even if he has no biological link to the child. But in trying to help children, men's rights advocates say, the law has gone too far.

Under the state's Code of Civil Procedure, the laws governing default judgments are the same for paternity claims as for any other civil action. But the consequences for the defendant can be more severe.

To establish a paternity judgment, a woman must file a claim with the county's child-support services department. The department, in turn, notifies all the parties of the court date and the amount of child support sought.

If the alleged father contacts the department before the hearing to challenge the claim or if the woman says she isn't sure who the father is, the department may provide genetic testing at its own expense. But it cannot force the woman to comply.

However, once the matter goes to court, a judge can order testing in cases in which paternity is in dispute.

Like in any civil case, if the defendant doesn't show up in court, a default judgment is entered. And, as for any civil order, the opposing party can go back into court relatively easily within six months of the judgment and argue to have it set aside. After that, relitigating a case is difficult unless fraud is suspected. Even then, it must be appealed within two years of the judgment.

Once a claim is finalized, it cannot be undone. The idea is to provide closure so people can get on with their lives.

Support payments can continue until the child is 18.

"The premise is that the state is trying to get parentage established, and there's not much support for undoing parentage, even when it's known by genetic testing that the man alleged to be the father is not the father," Browning explained.

"In the scheme of things, it makes sense when talking in general terms about establishing parentages and making sure the child has a legal father," he said. The difficulty is with cases, such as James, in which a man turns out not to be the father, has never held himself out to be the father and claims never to have received notice of a paternity claim. Marc Angelucci, a men's rights attorney who is representing James in his civil suit, has been at the forefront of a movement for legislative change to help paternity-fraud victims.

"Taron's case is the tip of the iceberg," said Angelucci, president and founder of the Los Angeles chapter of the National Coalition of Free Men. "It's been devastating for some of these men. Many are going underground. They feel hopeless and in despair. In most cases, they say that they don't even know the child.

"A lot of these men are in the military, and that makes them good targets because of the benefits and because the men are overseas [and not around to fight the claim]."

Angelucci, who worked with legislators on earlier versions of proposed paternity-fraud laws, said that the coalition is creating a paternity justice program to specialize in helping men overturn mistaken paternity judgments if Jackson's bill becomes law.

The California Commission for Women, which opposed earlier legislative efforts, supports Jackson's bill because it specifically states that a judge has the discretion to determine paternity based on how much the man has been involved in the child's life.

Other versions did not provide these safeguards, said Vicki Atwood, the commission's legislative coordinator.

James said that he saw the child only once, briefly, and has never been involved in the boy's life. James said he met Burton, then named Tami Cooper, in 1991, and the two had a one-month affair. When he decided to join the U.S. Navy, he told Burton that he wanted to end their relationship.

Three months later, he said, Burton told him that she was pregnant and that he was the father. At the time, he said, he believed it was possible. He said that he talked to her about marriage to "do the right thing for the child" and that she agreed it would be a good idea.

But when James came home on leave a month later, he said, friends warned him that Burton had been going out with many other men and was intimately involved with at least one. He said that he decided to call off the marriage but nonetheless told her to keep in touch and that he would send money for the child when he could afford it.

While he was deployed to Panama, he said, Burton gave birth to a son and, without telling James, named him as the father on the birth certificate.

The next time he heard from Burton was four months later, when he received a letter from Cliff Burton, who said he met Burton the year before, that they immediately became intimate and moved in together and that he had bonded with her son. The couple later married and have had two more children together, James said.

Three months after hearing from Cliff Burton, while James was deployed in the Persian Gulf, his superiors received a request from Tami Burton for child-support benefits.

Navy officials asked for proof of paternity and recommended she arrange for a blood test, which the Navy would pay for, James said.

Burton never replied or tried to contact him, he said.

James said that he tried to keep in contact with Burton, but she and her husband moved frequently, and Burton's father refused to tell him where she lived.

In March 1994, when her son was 18 months old, Burton, without James' knowledge, began collecting welfare for her son, naming James as the father, he said.

That December, the district attorney's office served notice to James' mother that a paternity claim had been filed. But when James opened the summons, the notice was in someone else's name. James said he immediately notified the district attorney's office about the error. After acknowledging the error, state officials told him that he had been named in a paternity action. James said he asked whether the office could arrange a blood test because he wasn't sure he was the father. He said that he was told it could be done, but he would have to wait.

For the next 15 months, James said, he phoned the district attorney's office to follow up and repeatedly was told to wait until he heard from their representative, he said.

Instead, he heard from the Department of Motor Vehicles that his license had been suspended for nonpayment of child-support payments. Only then did he learn that a default judgment had been entered against him.

By the time he got legal advice on how to challenge the claim, the six-month time limit had passed. Still, he tried representing himself in court.

He subpoenaed the process server who testified that he served a "John Doe" summons on James at his mother's address. But the server couldn't describe the house or the person who took the summons.

In January 1998, Los Angeles Superior Court Commissioner Roberta Lee ruled that James had been properly served and denied his appeal.

James began paying $150 a month in child support. When he fell behind because of his minimum-wage job, the child-support office began garnisheeing his wages. He filed for bankruptcy. Later, the office garnisheed his unemployment checks.

"There's a joke going around that, if you want to catch Osama bin Laden, file a paternity claim against him," James said.

Meanwhile, James had not seen or heard from Burton for several years.

In March 2000, the district attorney's office phoned James and asked whether he knew Burton's whereabouts because the office had collected $9,000 on her behalf but did not know where to send it. A month later, Burton wrote him from Arizona, saying she had received the money.

In 2001, James found a family law attorney who agreed to help him. After trying unsuccessfully to reopen his case, Karen Miller of Manhattan Beach was able, with James' help, to get Burton to agree to genetic testing. The results excluded James as the father.

With that information and a written agreement from Burton that she did not want to receive any more child-support money, child-support officials agreed to close the case - but they refused to promise it would not be reopened.

James said that Burton also agreed to repay him the $19,000 he shelled out, but since then she has cut off all communication.

Under current law, James' paternity case remains active. Burton can reopen her claim at any time until her child reaches 18, seven years from now.

"All she has to do in theory is sign up for welfare, and with me as the 'legal father,' the nightmare starts all over again, and I am living in constant fear of that," James said."