DNA tests alter legal landscape for dads
Man supports sons not biologically his
By Brooks Egerton / The Dallas Morning News
BIG SPRING, Texas - You are not a cystic fibrosis carrier, the doctor says.
Sounds like good news, but it has ripped his patient's life apart.
Both parents must have a defective CF gene for their offspring to develop
deadly disease - so how could Morgan Wise's youngest child be sick? "I'm
sorry to say there's a good chance he's not your boy," he recalled the
physician telling him.
In disbelief, he had DNA work done on all his kids. The staggering
conclusion: His three sons were not his three sons, at least not
"I cried," said Mr. Wise, a railroad engineer who'd been divorced 2 1/2
when the testing nightmare began in early 1999. "It's like a death."
When grief turned to rage against his ex-wife, he asked a court to free him
from paying child support. More shock followed as he learned that DNA
evidence of paternity - though widely used to order payments - often is not
accepted when trying to stop them.
A central reason is the U.S. judicial system's age-old, hard-to-rebut
presumption that husband equals father. There's no easy place in the
for the modern miracle of DNA testing, which in recent years has brought
powerful new facts to bear on legal matters and has given families
information they sometimes can't cope with.
As cases like Mr. Wise's have surfaced around the country, courts typically
have made children's interests paramount, determined to keep them from
becoming innocent victims of a high-tech blood feud. Financially and
emotionally, the reasoning goes, minors need the man who has functioned as
"Put the children first," said University of Texas professor Jack Sampson, a
nationally known authority on family law. "The question of who's the father
is not just a biological one."
That's readily understood in, say, an adoption, in which a man freely
consents to parental responsibility. But what if a husband is deceived, as
Mr. Wise says he was, into acting as a father? How do you explain to him
he can't capitalize on the sort of scientific evidence that could be used
against him if he fathered a child out of wedlock?
"Too bad," Mr. Sampson said.
John McCabe, legislative director and legal counsel for the National
Commission on Uniform State Laws, is more reserved: "I don't have a good
answer to that. I don't think anybody does."
The commission, led in part by Mr. Sampson, is redrafting its model
law to guide state legislatures, which are funding the effort. The drafters
remain resolutely children-first in their approach and are talking about
making it even more difficult to challenge the presumption of paternity.
Rise in testing
A key reason for the rewrite is the explosion in DNA testing and its ability
to answer paternity questions with virtual certainty. Officials estimate
accredited labs - those whose results can be used in court - will perform
more than 250,000 such paternity tests this year. That's more than triple
number a decade ago.
The companies' experience shows that women, for whatever reason, misidentify
the fathers of their children with some frequency. DNA Diagnostics Center,
the Ohio firm that did Mr. Wise's tests and is an industry leader, says 30
percent of the men it tests prove to be misidentified.
Similar numbers come from the Texas attorney general's office, which
child support: About a quarter of the men who disputed paternity in the last
year turned out to be right. In Florida, the proportion was one-third.
Many of DNA Diagnostics' customers are women seeking child support and men
who want custody or visitation rights, spokeswoman Lisa McDaniel said. But
the Wise family infidelity scenario, she added, "is not uncommon."
Some married women "think they're going to get away with it," she said.
never know how things are going to unravel."
Ms. McDaniel said the company got a surge in business this summer from
billboards, posted in 10 cities, that featured a baby with a Pinocchio nose
and asked, "Is his mother a liar?"
Mr. Wise's attorney in Big Spring, Robert Miller, has learned enough to
change his standard advice to men in divorce cases. "I tell every father,
'We'd better get DNA tests,' " he said.
Because Mr. Wise stipulated during divorce that the boys were his and didn't
test until later, Mr. Miller said, there's little hope of ending his
$500-a-month support payment. As a rule, courts bar people from relitigating
a case once it has been adjudicated and the appeal window has closed.
Mr. Miller is trying to pry the matter back open by alleging that his
client's ex-wife fraudulently concealed her extramarital activity. But a
state appeals court, in an unpublished December 1998 opinion, rejected just
such an argument in a central Texas case that closely parallels Mr. Wise's.
The same month, a Philadelphia man lost a similar fight before
highest court and has since been unable to get a hearing before the U.S.
Even if a husband tries to contest paternity before divorce, he may well
fail. According to UT's Mr. Sampson, several states - including California
but not Texas - allow no rebuttal of the fatherhood presumption unless the
man can prove he was sterile, impotent or not cohabiting with the woman at
the time of conception.
Other states do permit challenges such as DNA testing - but only if it's
within five years of the child's birth, as currently recommended by the
National Commission on Uniform State Laws. (Mr. Sampson and fellow drafters
propose to cut the number to two years, writing that "a longer period may
have severe consequences for the child.")
Texas now has no limit tied to birth. So could Mr. Wise have avoided child
support by simply disputing paternity before his divorce was final?
Not necessarily. He would have had to persuade a court to order DNA tests
verifying the ones he had done - something a judge could easily decide was
not in the children's best interests, legal experts say.
Mr. Wise's ex-wife, Wanda Fryar, now has primary custody of the three boys,
who are 7, 8 and 10. A 14-year-old daughter, who tests show is Mr. Wise's
biologically, also lives with her and her new husband in another part of Big
Spring, a West Texas town of about 24,000.
The boys don't understand their father's attempt to disavow paternity, Ms.
Fryar said. "If he had any concern for them at all," she said, "he would
She questions whether the DNA tests were done properly but sees no reason to
have her own done. "The kids are his," Ms. Fryar said.
Under oath, she has given conflicting statements on this point.
She testified during divorce proceedings in 1996 that she'd never had an
extramarital affair. But at a hearing this spring, when Mr. Wise was seeking
to revisit the support question, she admitted having sex with another man
nine months before each of the boy's births and acknowledged that he could
the biological father.
Ms. Fryar divulged the man's name after the judge ordered her to. So far, he
has not become part of the litigation.
In an interview, Ms. Fryar conceded the liaisons, saying that Mr. Wise knew
about them and that he had affairs, too. He denies both allegations.
'Why should I pay?'
Mr. Wise, who has also remarried, knows that some people will think he's
punishing the boys unfairly. "But why should I pay for what she did?" he
asked. "I'm as innocent as the kids."
Does he still see them as his sons?
At one point he told a reporter yes, "because that's all I know and that's
all they know." They still call him dad, he added.
But when one had a birthday recently, "I didn't get him a card, because how
do I sign it?"
When he sees them these days, "I wonder who their father is. It's like I'm
baby-sitting. . . . I'm like a significant other, like a stepfather."
Mr. Wise talked about how much he has cared for the boys, whose pictures
remain on display in his living room; how he stayed up nights when the
youngest, the one with cystic fibrosis, was struggling to breathe; how he
fought for and won primary custody, back before DNA testing "just wiped my
whole family out."
He said he wants to set up a college fund for the kids and help them in
ways, as long as Ms. Fryar can't touch the money.
But his "death hate" for her, as he calls it, seems stronger than any
parental love. If winning his legal battle meant he could never see the boys
again, then so be it, he said.
"I don't care if I have to get a second job digging a ditch, I'm going to
fight her all the way," Mr. Wise said. "I'll never get over it."