Fox Family Lawyers
Cynthia Moseley Fox
Attorney at Law
7751 Carondelet Avenue,
Suite 700
Clayton, Missouri 63105
(St. Louis)
314.727.4880

When Mom Names The Wrong Guy As Dad, The Child Should Sue

Readers of last week’s column will likely recall the story of the dad who may not be the dad.

 

“Leanne” had given birth 18 months earlier to a boy that she and “Carl”, her boyfriend at the time, agreed was his child, although no paternity testing was ever done. And, despite breaking off their relationship, Carl continued to pay court-ordered child support to Leanne and maintained an infrequent but steady relationship with the boy. Suddenly, Leanne remembers another intimate encounter with an on-again/off-again companion named “Gil” at the time of the little boy’s conception, and now believes he’s the real father based upon the child’s uncanny resemblance to Gil

 

Wanting to do the right thing, Leanne has sought my counsel and I advised that the first step would be genetic testing to determine if Gil is indeed the father. Although not likely, Gil could participate voluntarily, but if not, Leanne could petition the court to order the test, which the court may resist since the result could unwind a decision already made.

 

But, let’s assume the unlikely happens and testing reveals Gil to be the dad, where might this go from here? Since Leanne has yet to return for further help or retain me, this is a fanciful exercise that I may never have the opportunity to fulfill. Still, as a case with several unusual twists, I hope the reader will indulge my speculation.

 

Of all the parties involved, the child has the best chance of getting the court to change its mind because he’s the one most affected. Leanne should file a lawsuit on his behalf. In it, the little boy will allege that his mother committed an “unwitting fraud in the inducement” by identifying Carl as the father. Quite naturally, he had relied on his mother, and because of her error, he has been denied the rights that accrue from having his real dad accurately identified. These would include the right to his father’s companionship, support (financial, emotional etc.) and inheritance.

 

It would be helpful, but not necessary, if Carl testified in support of the suit saying that he also relied on Leanne’s word that he was the father.

 

Even with a highly sympathetic plaintiff, this would be an uphill case. The court could deny the motion based on “res judicata”, which is fancy lawyer language (in Latin) that means “these issues and these parties have been fully litigated”. Anticipating this possibility, the little boy’s pleading would undoubtedly point out that in the original case there was a fraud and that all the parties (i.e. the real father) were not before the court.

 

Let’s further imagine that the lad prevails and Gil is named the father. What happens to Carl? Obviously, his child support obligation would cease, but would he be entitled to a refund of moneys already paid, and could he continue to see the child?

 

Unless Leanne paid him back voluntarily, Carl would have to file suit and prove that Leanne was “unjustly enriched” by his prior payments. Leanne’s counter would be that Carl had voluntarily joined her in naming him the dad and had not contested his duty to pay support so that any payments until now were pursuant to a legal order and not unjust, although any continued payments would be.

 

As to a continuing relationship with the child for Carl, this could be decided by mutual agreement with Leanne and Gil. Failing that, Carl could file a third party custody case where the decision would be based upon what the court found to be in the best interests of the child.