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http://www.nytimes.com/2001/03/11/us/in-genetic-testing-for-paternity-law-often-lags-behind-science.html
In Genetic Testing for Paternity, Law Often Lags Behind Science
By TAMAR LEWIN
BIG SPRING, Tex.— It should have been good news when Morgan Wise's doctor told him that genetic testing showed he was not a carrier of cystic fibrosis, the disease his youngest child, Rauli, has struggled with since birth.
But instead, the 1999 test results led to the complete unraveling of Mr. Wise's relationship with Rauli and his three other children.
''For a child to have cystic fibrosis, both parents have to be carriers,'' Mr. Wise said. ''When I got the results, my first thought was maybe we'd misdiagnosed Rauli. But the doctor came around from his desk and said, 'I'm just going to come straight out with it: Is there any reason to think this boy may not be yours?' He advised me to have DNA paternity testing. I was in such shock I couldn't even drive home.''
The paternity tests showed that Mr. Wise had not fathered Rauli -- or his two other sons, Marti and Rowdi. Of the four children born during his marriage to Wanda Fryar, which ended in 1996, only the eldest, daughter Carli, was biologically his.
But the court that had handled his divorce would not consider the genetic evidence -- and refused to allow him to stop paying child support for the boys. The court also cut off his visitation rights, even with his biological daughter.
For centuries, courts have presumed that all children born within marriage are fathered by the husband. Because courts could not prove paternity, the thinking went, excluding any evidence of infidelity was the best way to protect children from the stigma of illegitimacy, men from the shame of cuckoldry -- and society from marital disruption.
These days, though, genetic testing has made determining paternity simple, even routine. According to the American Association of Blood Banks, 280,000 paternity tests were conducted in 1999, three times as many as a decade earlier. And in 28 percent of the tests, the man tested was found not to be the father.
But in most states, the law has not caught up with the science. And in dozens of cases around the country, divorced men like Mr. Wise -- and single men who have previously acknowledged paternity -- are having their genetic evidence of non paternity rejected by the courts. They are also being ordered to continue supporting children they did not father.
Many lawyers say the old policy still makes sense, because once paternity has been assigned, either as part of a divorce order or in a separate paternity proceeding, courts should not revisit the question. Furthermore, they say, there is something unseemly about men trying to get out of supporting children who have loved and depended on them.
But lawyers representing the deceived men see it differently: the unseemly thing, they say, is forcing a man like Mr. Wise to assume financial responsibility for children he was duped into believing were his own, children another man should be supporting.
''Morgan Wise is the victim here, he's not the one who did wrong, but he's the one being punished,'' said Mr. Wise's lawyer, Robert Miller, who argued his case last month to the state appeals court in Eastland, Tex.
Phyllis Royal, the lawyer for Ms. Fryar, said neither she nor her client would discuss the case.
While Mr. Wise's case made headlines in Texas, there are similar cases scattered throughout the country each year, many of them resolved in the privacy of family court, or, if appealed, reported only under the parents' initials.
''Now that DNA testing has washed off the table the reasons we didn't use to allow paternity evidence, we have to decide whether there are other reasons to keep that evidence out, like child support and fairness,'' said Carol Sanger, a family law professor at Columbia Law School.
''We no longer run the risk of a gazillion people coming forward to say 'Howard Hughes is my father' because we can say, 'Stick out your finger and we'll see,' '' Ms. Sanger said. ''But there are real concerns about letting biology trump all. The state may want to make sure that if they take one dad off the hook, they will have another one paying. The underlying question is, what establishes a parental relationship?''
The issue is complicated, she said: Any policy that emphasizes biological ties could upset the nascent recognition of nontraditional families, such as same-sex partnerships. And children may suffer from the disruption of their ties to a father figure.
But other experts say any legal policy that will not acknowledge scientific truth is disturbing, especially at a time when criminal courts are allowing people to use DNA evidence to prove their innocence, no matter how long after a crime.
''It's a real question: if we let DNA do its work in the criminal justice system, why not in the family court system?'' Ms. Sanger said. ''The answer is that the concerns are different. We never want an innocent person in jail. But to put it in the most melodramatic way, in the paternity situation, children are the innocent party. While some people might see the refusal to accept DNA evidence of nonpaternity as rewarding the wife for deception, I think courts look at its use as punishing the children.''
Many of the cases follow similar patterns. Often a man gets genetic testing when his ex-wife limits his contact with the child or when he begins to wonder why the child does not resemble him. In other cases, testing is prompted by relatives' hints that he is not the father.
The question of how long a man has to disavow paternity -- or whether he can ever introduce genetic evidence of nonpaternity -- differs from state to state. Some states will hear such evidence only within two years of a child's birth; others allow as much as five years. Last fall, Ohio enacted a law exempting men from child support if genetic testing shows that they are not the father. Similar legislation has been introduced in New Jersey.
In Maryland, in a group of cases involving unmarried men who had previously acknowledged paternity, the state's highest court ruled last year that there was no time limit on their right to use genetic testing to prove nonpaternity.
Late last year, seeking to create a national standard, the National Conference of Commissioners on Uniform State Laws proposed an act -- introduced as legislation this year in several states, including Texas -- giving men two years from a child's birth to challenge paternity.
''In looking at this, we found that something like 5 percent of marital children, maybe up to 10 percent, are not the biological children of the husband,'' said Harry Tindall, the Houston lawyer who was chairman of the committee that drafted the model law. ''I think there has to be some window of opportunity for challenge, but we say you have two years from birth to either put up or shut up.''
But two years would not have helped Mr. Wise, a railroad engineer who said he had never doubted his paternity until he underwent cystic fibrosis testing two years ago, when his sons were 6, 8 and 10. By then, he and Ms. Fryar had divorced, and he had fought for, and won, custody of all four children.
He gave custody of the children to his former wife in January 1999, shortly before being tested, when the travel demands of his job became overwhelming. At the time, the court granted him the same visitation rights his former wife had previously had, and ordered him to pay $1,100 a month in child support.
Even after finding that the boys were not his biological children, Mr. Wise said he had hoped to maintain his relationship with them.
''I told them I was still their daddy, and I loved them as much as the day they were born -- the only thing that was different was I was not their birth father,'' he said. ''I would still like to go on doing things for them, directly, but I don't see why I should be writing checks to a woman who deceived me all those years.''
But Judge Robert H. Moore III of Howard County District Court refused to end Mr. Wise's child support obligation. He also cut off his visitation rights -- a combination that baffles many experts in family law.
Judge Moore would not discuss the case. He referred questions to Celia Trimble Boone, the lawyer representing Dwayne Alexander, the man Mr. Wise has come to believe is the children's biological father.
''The judge made it clear to all parties that they were not to talk to the children about this, and when Morgan did so, that's why he cut off visitation,'' Ms. Boone said. ''On child support, the judge just followed the law of Texas, which is that once paternity is established, that's it.''
Ms. Fryar has remarried. In the appeal, her brief argued that Mr. Wise should have known to raise the paternity issue in the divorce: before the boys were born, the court papers said, Mr. Wise had found a note Ms. Fryar had written, but not sent, to Mr. Alexander, offering to leave her husband. Furthermore, the documents indicate, Mr. Wise had suspicions of several other relationships she had had.
Mr. Wise said in the court papers that he had not known his wife was seriously involved with Mr. Alexander, and that he and his wife had talked about the note and, he thought, resolved their problems. ''If I'd known she was cheating on me, I would have left her,'' he said.
For now, Mr. Wise has no formal contact with the children of his previous marriage, even though they all live in the same small West Texas town, where everyone knows the whole story. ''About the only time I see the kids,'' he said, ''is if I can go watch Carli's volleyball game over at school, or if I run into one of the boys.''
Since Mr. Wise got his test results, Mr. Miller said, two of his other clients have discovered they were not the biological fathers of the children they were rearing. Neither of those men, though, acted on the knowledge, choosing instead to maintain an unchanged relationship with the children.
''I now advise every man who's getting a divorce to get paternity testing,'' Mr. Miller said. ''I don't like it much, but now it seems like it could be malpractice not to warn them.''
Photo: Morgan Wise is required to pay child support for three boys DNA testing has determined are not his. (Joe Don Buckner for The New York Times)
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