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Paternity / DNA Testing Advice

Filed under: Child Support,General,Law & Courts — Scrap_The_CSA @ 12:29 pm Thu 3rd February 2005

Am I the Father?
Paternity Testing Advice in New Zealand
— This is potentially very important to you!

It is the right of every child to know for sure who its true father is. It is just as important for fathers to know who their true children are.

Yet there is a very high likelihood that as a NZ male you are not the true father of a child that you think is yours. The possibility you are not the father is high, about 10% to 20%.

You can easily do a paternity test yourself to prove if you are the father, using an overseas laboratory. It will give you peace of mind, and if you are not the father you could save yourself thousands or even hundreds of thousands of dollars in child support payments.

If you have any doubts, get the overseas test done. Its better odds than any lottery ticket you will ever buy. And do the test quickly — we explain why below.

Read on; there are a lot of things you need to know about this issue.

This paper is dated February 2005

Contents
Overview — the two classes of paternity test.
Our Advice
The Paternity Problem is Massive
Do It! Find an Offshore Laboratory
It’s Your Secret — don’t tell anyone
Social Fatherhood – The Myth
The Financial Side — the best lottery ticket you will ever buy
Summary of Actions You Must Take
More Paternity Issues
What The Government Must Do To Fix The Paternity Problem. — dreams are free

Overview
Paternity tests are needed to see if you are the ‘biological father’ of a child. Being a ‘biological father’ means you begot the child. Put another way, this means the child is made up equally from the genetic material of you, the biological father, and the genetic material of the biological mother. The genetic material is called DNA. A DNA test to prove paternity is relatively cheap now, and very easy to get done if you avoid going through the NZ legal system.

In reality there are two classes of paternity tests:

Legally recognized DNA paternity test. This test is legally recognised in NZ. The test has to be done under the control of the NZ authorities (such as the Family Court or the Child Support Agency). Or, the mother may consent to the test. In all cases the mother effectively has control of whether or not the legal test can be done (she is the ‘gatekeeper’), although there has been a recent case in the Court of Appeal that may change this.

The legally recognized test can be used to make you liable to pay child support, if you are the father. It can also be used to stop your child support if you are not the father, although as we will describe further down, the authorities may try to make you pay even if you are not the biological father.

‘Do It Yourself’ (DIY) paternity test — is done without the control of the authorities or the mother. It is you that controls whether or not the test is done. The test is not legally recognised in NZ. You must get the test done by an overseas DNA testing laboratory, but that is relatively easy to do. This test tells you the facts on whether or not you are the biological father. The DIY paternity test under these circumstances is often referred to as ‘piece of mind’ paternity test.

Our Advice
Our advice: – as a first step get a DIY paternity test done by an overseas DNA laboratory. Don’t tell anyone you are doing the DNA test (we will explain why later on). When you get the result you will know the answer. If you are the father, then that’s great. If you are not the father, then you will probably need to go to the next step of getting a test done that is legally recognized in NZ.

If you want a legally recognised paternity test done, it’s not a problem if the mother agrees. But in most cases it does not suite the mother to agree to the test. Then you have a fight on your hands. The rules on paternity testing in NZ are very vague (like all family law), but the authorities have kept it so that effectively mothers are in control. Mothers are effectively the gatekeepers of paternity tests for fathers.

In NZ you certainly need the mother’s consent (or the Courts’ consent) for a legally recognised paternity test. If the mother refuses to agree to give you a DNA test (she is likely to if there is a reason she suspects you are not the father), it could take a long time in the Family Court (typically years if she opposes the DNA test) with no certainty that the Court will ever allow the legally recognised DNA test to happen. The contested Court proceedings will most likely cost you many, many thousands of dollars. We believe the Courts have only once forced a mother to agree to a paternity test (Court of Appeal, late 2004), but after this precedent, getting the Family Court to agree may become a little easier.

Asking the mother for her consent alerts her, then she can block your access to your child and do everything else it takes to stop you doing a DIY paternity test by yourself.

By far the best option is to go ahead first of all with the DIY paternity test secretly, using an overseas lab that will accept samples from father and child. Don’t try to use a lab in NZ. They will demand the mother’s permission to have the test done, and they will demand the mother also be tested (which is quite unnecessary and only makes the process more expensive). By doing the DIY paternity test first you have peace of mind if you are the biological father, and you know how to proceed next if you are not the father.

The Paternity Problem is Massive
Research has been done in many countries and it shows that up to 10-20% of dads who think they are the biological father, are not (this is sometimes called ‘misattributed paternity’). This means between 110,000 and 220,000 of the 1.1 million children in NZ have the wrong father.

Further, with about 55,000 children being born in NZ every year, between 5,500 and 11,000 new children get the wrong father each year.

When NZ dads get paternity tests done, typically 30% or more of the tests show the man is not the father. That’s one in three!

For more information look at the following NZ site: http://www.massey.ac.nz/~kbirks/gender/whosdad.htm

Do It! Find an Offshore Laboratory
The overseas DIY paternity tests are easy. Find a lab on the Internet using a search engine, and send away for their test kit. The kit is very simple; it’s usually a couple of swabs and plastic bags. Taking samples is very easy, a few hairs, or a swab taken from the inside of the mouth of father and child will do. Mail the kit off with your credit card details and wait a few weeks for the results.

But remember, the DIY overseas paternity test has no legal significance in NZ. If you are not the biological father, then you will have to start Court proceedings to get the test redone in NZ as a legally recognised DNA test. Remember, only one case has ever succeeded against the mothers wishes. The test done by the NZ Court will not necessarily be technically superior to the DIY test you might get done overseas.

For DIY paternity tests we like to recommend www.dnasolutions.net in Australia (call 0598 362 669 toll free in New Zealand). They have been vocal advocates for fathers to have better access to DNA tests, despite opposition from the authorities in Australia. But otherwise, a web based search engine primed with ‘paternity test’ will get you lots of options.

If you are considering going to Court for a legally recognised paternity test, it is best to know the outcome before you start proceedings. You need to know if you are the father first or it becomes hard to justify the cost and emotional strain of going to Court. So get the DIY test done overseas first.

It’s Your Secret
Don’t tell anyone you have had the test done, it’s for you alone to know the outcome. The reason is that there is huge opposition in NZ and overseas to men doing their own DNA tests. This opposition comes from women’s groups, government departments, judges and the legal community. They will claim you stole your child’s DNA without the child’s consent. Don’t let this kind of argument put you off.

You are well within your own rights and those of the child to have a DIY paternity test done. It’s not illegal in NZ at the moment to get an offshore DIY test, but the fact that you have done it will potentially be used against you by government officials or in Court (during later paternity proceedings or other proceedings for custody or access). So make very sure they don’t find out you did the test.

It’s absolutely moral for you to get a DIY paternity test done. As a father, it’s a fundamental right to know who your biological children are. For a child, it’s a fundamental right to know who their biological father is. Children must know who their father is for health reasons as well. If there are genetic illnesses running through a family line, being passed from parent to child, then it is essential for the child, its parents, and doctors, to know about these problems. If NZ really cared about the welfare of children the authorities wouldn’t make it so hard for them to find out who their fathers are.

In Australia and NZ the authorities are quietly working behind the scenes to try and make DIY paternity tests illegal. They are fighting a losing battle, as fathers will always be able to find good laboratories in other countries that will do DIY paternity tests. The authorities lost control of the situation years ago; there are thousands of DIY paternity tests being done every year already.

Social Fatherhood – The Myth
The next big issue is that there has been a trend for the father’s paternity to be regarded as irrelevant anyway. The catch cry of the radical-feminists is summed up in lines that go like this — “its child raising that defines fathering, not genes” or “fathering is about behavior, not biology”. What they are really saying is ‘the fathers biological relationship to the child is unimportant’. Of course, mothers don’t suffer this uncertainty — a mother’s maternal relationship to a child is rarely in doubt (they are guaranteed to be at the birth).

The Courts in NZ may follow the extreme line that if the child regards you as father, then you are the father for all legal purposes. They refer to this as you being a ‘social father’ as opposed to being the ‘biological father’. The longer you have been treating a child as your own, the more likely you are to be treated as the ‘social father’, even if you are not the biological father. We have seen cases where a man (who is not the biological father) is forced to pay child support, because he is deemed to be ‘bonded’ with the child. We have also seen cases in NZ where both the biological (DNA) father and a social father are made to pay child support for the same child.

The longer you wait, the more likely you will be deemed to be the social father, regardless of whether or not you are the biological father. So it is well worth getting the DIY test done overseas, and quickly.

The Financial Side
The cost of the test may be a few hundred dollars, but it could give you a lot of peace of mind, or alternatively there is a high probability (if you are not the father) it will save you up to thousands, if not hundreds of thousands of dollars in Child Support over the years. The potential payoff is so great for most men that it’s a no-brainer — get the test done right away, you will probably never again in your life be able to place a bet that has such a good chance of being a winner.

If you have been paying Child Support direct to the mother for some years you will probably never get the money back if you are found not to be the biological father. The Family Court finds it nearly impossible to tell a mother to pay the money back. If you have been paying instead to the Child Support Agency, you have a better chance of getting the money back.

We estimate that, if all those who are in the Child Support scheme were allowed to have paternity tests, the amount of money the government would have to pay back to fathers would be about $500 million (that’s right, about half a billion dollars!). No wonder the authorities might stop DIY tests, and only offer testing through the Family Court that is so expensive and long winded that it will keep paternity testing inaccessible to the vast majority of fathers and children.

Summary of Actions You Must Take
So to summarise the actions that you need to take:

  1. If you think you may not be the father of a child that you have been led to believe is yours, start by getting a DIY DNA paternity test done secretly overseas.
  2. Don’t tell anyone except those you can trust you intend to do the test. Don’t tell anyone afterwards either. If you tell the mother in advance she can simply get a Domestic Protection Order against you or stop your access and have you put in the position where you will never see the child. Or she can have you put on supervised access where you will only be allowed to see the child in a room with a supervisor who will know the game and do everything to stop you getting a DNA sample from the child.
  3. If the DIY paternity test shows you are not the father, you have to consider your next moves carefully.
  4. But if you are the biological father, you and the child can rest easy. Don’t tell anyone you know you are the biological father, or that you have had the DIY test done. It could still be used against you later.
  5. If you are not the biological father, you will feel very cheated and angry. Don’t make any decisions for a few weeks till you have cooled down. Get friends and family you can trust to help you through this time. Above all, we recommend you say nothing to the mother that you know you are not the father. At all costs resist the temptation to ring her, or talk to anyone who knows her.
  6. If you are not the biological father and you want to try for a legal test, chose a good time and calmly tell the mother you want the legally recognize DNA test done. If she agrees, no problem, you get the test done in NZ where the mother, father and child all submit samples to a NZ DNA testing laboratory. If the mother doesn’t agree, go to the next steps.
  7. If the mother wont agree to a legally recognised test, you must now hire a lawyer and commence legal proceedings in Court. If you are not earning, you may qualify for Legal Aid. Be prepared for the proceedings to go on for many years. Include a claim to have your child support payments paid back at the time you start proceedings.
  8. You should judge yourself if it is safe to tell your lawyer that you have had the DIY test done. Remember, Family Court lawyers in NZ on average each earn over $1,000 dollars a week doing work directly for the Family Court (as counsel for the child etc). In theory, everything you discuss with your lawyer is legally privileged, which means it’s confidential.
  9. If your case for a legally recognised paternity test goes on for more than 3 months, you must go and see your Member of Parliament. Don’t let him or her tell you they cant get involved in your particular case, tell them they must get the law or policy changed so that all reasonable request for a legally recognised DNA paternity test are dealt with quickly.
  10. The longer you leave finding out, the more likely you are to be declared a social father by the Courts. In which case, even if you are not the biological father you could be liable for child support, and suffer a lot more heartache at the injustice of the situation.

More Paternity Issues
At the time of writing (early 2005) the NZ Law Commission was investigating paternity testing and will put out a report in the next few months. It may take years for any law changes on paternity testing to follow, and they may make things worse, not better.

We fear Law Commission will say that DIY paternity tests should be made illegal. The equivalent in Australia, the Australian Law Reform Commission (ALRC) has already recommended the same. The bad news is we expect informal DIY paternity tests to be made illegal in NZ and Australia in a year or two. The good news is, illegal or not, they cant stop fathers doing DIY paternity tests. It’s immoral to stop children and fathers knowing the truth. Women used to complain they had to get ‘back street abortions’; well fathers will just have to get ‘back street paternity tests’.

Remember also that the NZ government has given itself the right to legally take DNA samples by force from certain alleged criminals, and now has a databank of about 50,000 DNA samples. So DNA testing can and is being done on a very large scale in NZ, but not to help fathers and their children. Interestingly the government gets its DNA tests at bargain prices, about NZ $200 per sample (you need 2 samples to make a paternity test).

Further we are not aware of mothers being made liable for false declarations about who the father is. This leave mothers free to choose the guy with the best income to hang the Child Support liability on. This is sometimes referred to as ‘paternity fraud’ — it is a big issue in the USA now.

Further, if you are married to the mother, the law says the child is legally yours anyway, even if the mother has deceived you and someone else is the father.

In the NZ Courts, the ‘burden of proof’ in paternity cases is placed on the father.

Many other countries make it very easy to get the test done without the huge cost of involving a Court (or the mother). In NZ, the Child Support Agency will not let you have a DNA test without the mother’s consent or a Court order (we managed to get the Child Support Agency to put this in writing; letter dated 2 September 2002, you can call the National Child Support Agency on 04 472 1032 for a copy). This creates the injustice that the mother can tell the Child Support Agency a man is the father and the Agency will start to deduct his wage. But is he says he is not the father the mother can refuse a legal DNA paternity test.

Don’t be fooled by people who try to tell you all the legal rights and processes are in place in NZ for you to get a paternity test through the Family Court (Family Court lawyers try to tell people this all the time). The Family Court is expensive and unreliable for fathers, and if the mother opposes you they could make it take years for you to get a result (and there has only ever been the one good result in the 2004 Court of Appeal case). For most men the Family Court is the last place they should go. Despite the fact that maybe up to 11,000 children are born in NZ every year that have the wrong father, we believe in future only a few dozen paternity cases will succeed in the Family Court each year (even after the 2004 Court of Appeal ruling).

Note — there is government paternity advice at www.courts.govt.nz and a leaflet (Courts 033). These express mostly a very narrow and a rather misleading view of the real issues.

What The Government Must Do To Fix The Paternity Problem
Lets, as a final shot describe what a family-friendly paternity testing policy environment is like. This is what we need in NZ:

  • At the birth of any child a DNA paternity test must be automatically done. This would be a legally recognised paternity test that does not require the involvement of the Family Court.
  • DNA paternity testing must be automatically offered to all fathers currently in the Child Support Scheme, or otherwise required to pay child maintenance. Those who are not the biological fathers must be fully refunded.
  • Before any father is required to begin Child Support or other child maintenance payments, a DNA paternity test must be offered.
  • The government must pay for all DNA paternity tests. Poor government social policy has created the huge paternity problem our society now faces, so it is up to the government to help fix the problem.
  • The Family Court or other officials should not be required for the vast majority of legally recognised paternity tests. We just need a legally recognised mechanism where a registered test taker (say a doctor) meets the father and child, takes the DNA samples, takes photos to verify the father’s and child’s identity, and sends the samples to the DNA laboratory. The father can then take the lab report when it arrives (if he is not the father) to the Child Support Agency and get them to stop his payments and provide a refund of previous payments. The father can also use the test report to have the birth certificate corrected as necessary. The mother should be informed these things are happening. Fathers and children don’t need courts, lawyers, judges, bureaucrats and social workers to be involved, unless there is something very special about the case and they can add value, and not be a hindrance or cause delays or unnecessary cost. Parents and children need the facts on paternity.
  • Biological parents must be given precedence as parents, to recognise their overall greater commitment to their children. Exceptions to this rule must be possible for situations such as adoption etc.

Brought to you by The New Zealand Child Support Reform Network.
email : NZCSReform@slingshot.co.nz

4 Responses to “Paternity / DNA Testing Advice”

  1. Athena Cotidis says:

    I may not be a father but I have good ideas. I think it should be a mandatory requirement to D.N.A test all fathers before they sign birth certificates, sure it may be expensive for the government, but this D.N.A could be useful in other ways such as solving future crimes, it would end up costing the same amount will benefit fathers and will solve more crimes . It is not fair that a child grows up thinking that their “step father or so-called father” is their father and something needs to be done about it as it is the most selfish act commited by a mother.

  2. Gary Miller says:

    Dear sirs
    http://www.dnabioservices.com.au
    I have recently been sponsored by WA to establish a DNA testing company in Australia, offering at home DNA tests and COURT approved DNA tests; my laboratory is accredited by NATA (National Association of Testing Authorities) so results can be used in a court of law and for CSA issues.

    I would be honoured to be able to place a link on your website to enable your members to conduct legal DNA tests and if they so wish regular DNA tests (both tests are carried out at the same NATA approved laboratory) so the results are conclusive and the client can be assured that his test follows strict NATA guidelines.

    Taking a DNA test can be very traumatic experience for all concerned and the individual needs the re-assurance that the laboratory follows strict processes when performing the actual test.

    For example a company may conduct a piece of mind test for an individual in a non-accredited laboratory and the result could be total exclusion, this is taken by the individual as correct but the mother may pursue this through the Family law courts. The court will ask for a Court Approved NATA approved test to be carried out and the result could be the opposite…….this has happened before………….

    The Australian Government is concerned that DNA testing in Australia is at present un-regulated and anyone can order a DNA test from the internet never knowing if the results are in fact correct, or what standard the laboratory is — that’s why using a NATA approved laboratory is safe, conclusive and approved.

  3. Richard Lincoln says:

    The author of this article has omitted to mention that the 2004 Court of Appeal Judgement (T vs S) was an application where a man who thought he was a childs father was seeking an order to declare him the child’s parent. The full judgement can be found here- http://richardlincoln.blogspot.com/

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