|Subject: [Patriarchy] FW: [NCFC-NetWORK] due process exists for presumed fathers in Alaska |
Date: Thu, 31 Aug 2000 08:56:05 -0400
From: "Sivertsen, Richard (Richard)** CTR **" <firstname.lastname@example.org>
To: "'email@example.com'" <firstname.lastname@example.org>
FWD from Bruce Eden
> From: nikky@CYBERNEX.NET[SMTP:nikky@CYBERNEX.NET]
> Sent: Thursday, August 31, 2000 8:22 AM
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> Subject: [NCFC-NetWORK] due process exists for presumed fathers in
Notice that it was [an] administrative order that obligated the father to pay child support. Are all child support orders administrative, especially pendente lite child support orders and child support orders included in restraining orders???
Bruce Eden, Divorce Reform Coalition of NJ & NY
A man's due process rights were violated when the state implemented a support order for the child born to his estranged wife during their now defunct marriage without providing him an opportunity to rebut the presumption of legitimacy, the Alaska Supreme Court held Aug. 18. The court said the state had predetermined that the man was the "legal father" of the child when he was merely the legally presumed father. Asserting that the difference was significant, it said that once the state took action to enforce the presumption that the man fathered the child born during his marriage by issuing an administrative support order, the man was entitled to a formal opportunity to rebut the presumption before the order became final the state was in fact aware that the man was not the child's natural father).
Finding that the state told the man that his only recourse from the administrative action was to initiate a paternity suit, the court explained that this position denied him due process because arrears that accrue prior to an order disestablishing paternity are final judgments that cannot be retroactively modified. Thus, it said, the legally presumed father is liable for arrears and has no recourse; "such a procedure denies a fundamental aspect of due process, the right to be heard," it asserted.
(State v. Maxwell, Alaska, No. 8886, 8/18/00)
The court elaborated on this issue in another case issued the same day, holding that a man's erroneous acknowledgment of paternity created no duty of support for an out-of-wedlock child. Recognizing that an acknowledgment of paternity presumptively establishes a legal parent-child relationship regardless of biological parenthood, it stressed that this presumption is not to be confused with a paternity judgment. Accordingly, the court ruled that the state, in an attempt to recoup welfare benefits paid to the mother, could not obtain support arrearages from the man for the period between his mistaken acknowledgment and his receipt of the arrearage notice. It explained that it wasn't until he received the notice did he have a formal opportunity to rebut the presumptive parent-child relationship.
(State v. Button, Alaska, No. 8792/8942, 8/18/00)
Larry Hellmann, President
National Congress for Fathers and Children
9454 Wilshire Blvd., Suite 907
Beverly Hills, CA 90212
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See also: Family Law Table of Contents