Last Thursday, the Illinois Supreme Court upheld a trial court's decision to dismiss a disestablishment of paternity case that was filed because a DNA test had proven that Romel Smith is not the father of Kendra Smith, daughter of Valerie Dawson. As reported in the court's opinion, a DNA test "showed a 0% chance that he was Kendra's biological father." Romel Smith was denied the opportunity to challenge paternity, remains the father of Kendra Smith in the eyes of the law, and must continue to pay child support.

The case illustrates how complicated these matters have become for the individuals involved and how reasonableness and common sense have been drained from family law. The pertinent Illinois statute, the court's decision, the trap that Romel Smith is in, and lack of acknowledgment and support from Kendra's real father ultimately rest on compliance with a federal statute for the purpose of obtaining federal funds. Federal statute offers funding to states that deny men the opportunity to challenge paternity if it is not done in a particular way, for particular reasons, within a strict and very short time limit.

Because of funding rules, the fact that paternity was wrongfully established cannot be pursued to its natural conclusion. This family and Romel Smith have not been allowed the opportunity to adjust their situation to reality. Instead, their conflict and its devastating consequences remain for the sake of the state's interest in feeding at the federal trough; a bizarre and unjust fate is forced upon them by rules that are entirely arbitrary and unreasonable.

The details of the case and the law are a bit complicated to be sure. There is a long route to discovering the link between the decision and federal funding. It is eventually spelled out in the latter half of the supreme court's decision. The trial court dismissed Romel Smith's petition for lack of legal ground. The state appellate court reversed the decision giving Romel Smith the right to proceed. The state supreme court reversed, agreeing with the trial court that Romel Smith's petition does not support a statutory right to challenge paternity.

The trial court relied on the provision of the Illinois Parentage Act that voluntary acknowledgment of paternity cannot be challenged after 60 days has passed from the time some further legal action (like establishment of a child support order) makes use of the paternity decision. It also relied on a provision that a voluntary acknowledgment may be challenged "only on the basis of fraud, duress, or material mistake of fact." Despite the matter of record that Romel did not suspect he was not the father until years after he had acknowledged paternity, the trial court concluded that he had neither met the 60 day requirement nor alleged fraud, duress, or material mistake of fact. If he were allowed to proceed due merely to the fact that he is not the father, it would according to the court, "render the acknowledgment provision of the statute meaningless."

To the contrary, the appellate court pointed out that according to Illinois law; "If, as a result of the deoxyribonucleic acid (DNA) tests, the plaintiff is determined not to be the father of the child, the adjudication of paternity and any orders regarding custody, visitation, and future payments of support may be vacated." The court opined that the language and intent of the statute is perfectly clear and rejected the trial court's view, saying that it said "would render the entire section entirely meaningless."

In response to issues raised by lawyers for the Department of Public Aid who opposed paternity disestablishment, questions on the meaning of words were taken up by the appellate court and further pursued by the supreme court. The supreme court engages in a rather mind-numbing discussion on the meaning of "adjudicating," "adjudication," "judgment," and "only." (It reminds one of the difficulty Bill Clinton had with the word "is.") Reading this part of the opinion is like watching a magic act. Attention is diverted to obtuse legal argument over the meaning of words, while the central conflict – the fact that Romel is not Kendra's father – disappears.

To resolve the conflict over the meaning of the statute based on its "plain language" the supreme court looked at legislative history to discern the intent of the state law. It is here that the link between the problem and federal statute is established.

In 1996, changes in Title IV-D of the Social Security Act restricted challenges to voluntary paternity to within 60 days of the time a child support order is established, and required that "a voluntary acknowledgment may be challenged in court only on the basis of fraud, duress, or material mistake of fact, with the burden of proof on the challenger." (42 U.S.C. §666(a)(5)(D)(ii-iii) (2000))

The Illinois legislature passed laws in 1997 and 1998 to bring the state into conformance with the federal funding requirements. The problem of unjust consequences had been placed before the legislature when Senator Beverly Fawell introduced legislation to partially combat the problem in limited cases. (Public Act 90-715)

"This is a bill that was brought to me by a constituent of mine who had a problem that didn't seem to be solved any other way. He was married, he went overseas, because he was in the Army. His wife had a child. Came back, his wife had announced she wanted a divorce. They got the divorce. He, of course, was ordered to pay child support, which he had no objection to. She moved to another State. He kept saying, I want to see my son, she would not allow him to see him until four years after the child was born. He then found out that this child was not his through a DNA test." 90th Ill. Gen Assem., Senate Proceedings, April 2, 1998, at 49 (statements of Senator Fawell).

Further, Senator Fawell stated that the legislation;

"allows a man who has been adjudicated the father of a child pursuant to the presumption that he is the father due to the marriage, if there is-a DNA test discovers that the man is not the natural father, then the orders involving custody, visitation and child support can be declared null and void." (Emphasis added.) 90th Ill. Gen. Assem., Senate Proceedings, April 1, 1998, at 10

"Notably," the supreme court points out, "in the debates of neither the House nor the Senate is there any mention of the presumptions arising out of voluntary acknowledgments of paternity." (emphasis added) "Moreover, there is nothing to indicate that the legislature sought to undo the sweeping and comprehensive changes it had made just one year previously to bring Illinois law into compliance with federal requirements."

Roger F. Gay