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

Is Refusing To Take A DNA Test Sufficient Proof of Paternity in a Criminal Case?

On January 31st, Missouri’s Supreme Court, in a 4-3 decision, handed down a potentially significant decision in a case that began as a simple paternity matter but evolved into a criminal case where fundamental tenets of American law such as the presumption of innocence and guilt beyond a reasonable doubt came under question.


The story begins in 1990 when the state’s Division of Family Services filed a petition in Jackson County, Missouri to name a Montae Perkins as the father of a child in order to collect child support from him. According to court records, Mr. Perkins agreed to a blood test, but then failed to show up on four separate occasions, and never filed an answer to the DFS petition. As a result, in October 1991, the local court entered a default judgment declaring Mr. Perkins to be the father that Perkins made no effort to set aside or appeal.


Fast-forward 13 years to 2004 and we have the Prosecuting Attorney of Jackson County charging Mr. Perkins with criminal nonsupport, a misdemeanor, for failing to pay child support over a five-month period earlier that year. Mr. Perkins responds with a motion demanding DNA testing for the mother, the child and himself to prove whether he is in fact the child’s father. The judge hearing his case agrees and orders the testing.


Presumably, any lingering doubts as to whether our Mr. Perkins is the father were soon to be resolved, right? Not so fast, according to the prosecuting attorney, who sought a writ prohibiting the test. In the prosecutor’s view, the issue of Mr. Perkins’ paternity had already been resolved by a valid civil order---the default judgment—and that Mr. Perkins had foregone the opportunity to contest his paternity at the time and shouldn’t now be given a second bite at the apple.


It was this case, pitting the prosecutor against the local judge, that the state’s Supreme Court decided the last day of January. The prosecutor argued that the state must only prove that Perkins is the child’s father based on the fact that the child had been “legitimated by legal process”. That is, the default judgment entered by the civil court was sufficient proof of Perkins’ paternity in the criminal nonsupport case.


Perkins countered that in a criminal case the determination that the child was “legitimated by legal process” must be made on proof beyond a reasonable doubt, such as would be obtained in the DNA testing that Perkins was now willing to submit to.


Missouri’s Supreme Court did not agree with Perkins. It said that “whether Perkins biologically is the child’s father is irrelevant” and that the state must only “prove beyond a reasonable doubt that a civil order exists legitimating the child and that Perkins violated that civil order”. Since Perkins did not avail himself of the opportunity to contest paternity during the civil case, the Court “will not devise a new procedure now to suit Perkins’ convenience”.


As someone who has chased after many a deadbeat dad, my first reaction was: “Yahoo, the ‘good guys’ won!” Yet, as the case lingered in my mind, that changed to: “But, at what price?” Three Supreme Court judges dissented, including Chief Justice Wolff. Their concern was that the presumption of innocence accorded criminal defendants and the requirement of proof beyond a reasonable doubt were being set aside.


Ultimately, our justice system relies on uncovering the truth as best that can be discerned. Under threat of prosecution, Mr. Perkins was seemingly willing to comply with the testing he had previously spurned.  Assuming he followed through, the issue of his paternity and related liabilities, civil and criminal, could have been resolved. As Chief Justice Wolff wrote: “…what is the harm of conducting a DNA test to confirm Mr. Perkins’ parentage beyond a reasonable doubt?”