The Tennessee Supreme court has agreed to hear a case that could decide whether a man has legal grounds to sue for being duped into supporting a child that turns out to be fathered by someone else.
Legal experts believe it may be the first time for the state’s highest court to decide whether paternity fraud is grounds to sue.
The court could give a man the right to recover some of the expense of caring for the child and win damages for emotional suffering for the paternity fraud. Lawyers say it’s unlikely the man would be able to recover past child-support payments.
The case involves a divorced Maury County couple where the ex-husband was awarded $26,000 for child support and medical expenses he paid and $100,000 for emotional distress because of the fraud. The Tennessee Court of Appeals struck down the award.
David Scott, a Murfreesboro attorney who practices family law, said the Supreme Court probably took the case because more men are finding out they are not the biological fathers of children they’ve been supporting because of easy DNA testing.
“I think attorneys are going to be paying attention to this case because it’s an issue that comes up in family law quite often,” Scott said.
In the case, the ex-husband discovered he’d been paying years of child support and medical expenses for a child who turned out not to be his. Court records indicate the ex-husband had primary custody of the boy, who was about 14 or 15 when the discovery was made. The boy’s mother previously had custody.
The ex-husband, Chadwick Craig, sued his ex-wife for fraud in 2008, claiming that he married the woman, took a job he didn’t want so he could support the family, and paid thousands of dollars in child support because she told him he was the father. Craig also said he never would have undergone a vasectomy had he known the he did not have a biological child of his own.
Craig and his ex-wife, Tina Marie Hodge, could not be reached for comment. Their attorneys did not return phone calls from The Associated Press seeking comment.
The ex-wife maintained that she believed that the child was Craig’s son. She testified that she had sex with another man during a brief period when the couple broke up, but an early pregnancy test revealed that she had not become pregnant by the other man.
Maury County Chancery Court Judge Jim Hamilton did not believe her and said she had a duty to disclose that she had an intimate relationship with another man who could be the child’s father.
Last year, the Tennessee Court of Appeals, in a unanimous decision, said state law does not allow returning child support payments that a court had previously ordered.
The appellate court also said Craig was not entitled to the award for emotional distress. But the decision, written by Judge Holly Kirby, said the appellate court would not address whether there were other circumstances where the ex-husband might be entitled to recover money and win damages.
Attorneys say it’s unlikely that the Tennessee Supreme Court will let a man sue to recoup all his past child support payments.
“The legislature would have to change the law,” Nashville attorney Helen Rogers said.
Still, if the Supreme Court decision gives men grounds to sue, it could open up the floodgates of litigation, Davison County Juvenile Court Magistrate Scott Rosenberg said.
There’s no way to know how many men across the state have paid or continue to pay child support for children who aren’t theirs.
Last year, the Tennessee Department of Human Services tested more than 8,500 men who had been named as fathers by women seeking child-support or public assistance. More than 2,100 — about 25 percent — were not the biological father, DHS records show.
Some wonder whether it’s good public policy to let men recover money from children, especially when the man has had a lengthy relationship with the child.
“I think the real question is does the lack of a biological connection mean that you’re not the parent,” Ellen Clayton, professor of pediatrics and professor of law at Vanderbilt University said. “And what does that mean?”
“This would be great for fathers, and it certainly is unfair that women do this to them, but my concern would be what happens to the children?”