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Not The Father? You Still Owe Child Support, Says Georgia Law

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May 13, 2009 WSB-TV Channel 2: Not The Father? You Still Owe Child Support, Says Georgia Law

ATLANTA -- Larry Durden, an unemployed mason worker, told Channel 2 Action News reporter Tom Regan that he is being threatened with jail time if he doesn’t continue paying child support for a child he says is not his biological son.

Durden, who says he is the victim of paternity fraud --- the act of falsely naming a man as the biological father of a child, said he assumed the boy was his son for 10 1/2 years. "I mean, he looked like me. I thought he looked like me," said Durden. But a few months ago, Durden said he started having doubts, and contacted a DNA testing lab. He took a paternity test and the results took him by surprise.
"It said "0"… he's not mine. So you know, that hurt … it grabbed me," said Durden. Despite genetic evidence that Durden didn't father the boy, the state is forcing him to continue paying $500 a month in child support. And he's far from alone.

One of every three men who take a paternity test discovers a child they believed was theirs is not.
"They say 25 to 30 percent of all men who get tested find out that they're not the father," said family lawyer Randy Kessler. "That's a high number. Married, non-married, divorced ... that's going on a lot."
The state of Georgia can go after the men for child support and if they don't pay, the state can garnish their wages, revoke their driver's licenses and even put them behind bars.

"When you find out he's not your kid, it hurts because you still love him. But you don't want to pay child support for a kid that ain't yours when you got a family of your own to take care of," said Durden.
Kessler told Regan that he often deals with men who spend years raising a child under the false belief that it's their own.
"If a woman is having an affair, the last thing she wants to do as the child is being born is say, 'Uh, by the way, that baby you're holding in your arms may not be yours,'" said Kessler.
Kessler represented Carnell Smith, who became one of the leaders in the war on paternity fraud.
Smith's battle began with a call from an ex-girlfriend who said he was the father of her baby girl.
"I believed the child was mine, she said the child was mine, and it took me 11 years to find out that was absolutely not the truth," said.

Smith challenged the child support decree, and personally took the case all the way to U.S. Supreme Court. The high court refused to hear it, but his well-publicized crusade led Georgia to reshape its paternity law. Ex-husbands and out-of-wedlock fathers can petition to end child support through DNA evidence. But there's a catch."If you don't file it exactly as it is written, you don't avail yourself to the relief."

"The law makes it a little easier to quote "get off the hook" for the obligation, but you still have to do it right," said Kessler. One of the rules requires anyone fighting child support to file a challenge within three months of finding out they are not the biological father. Missing that deadline could hurt their case.
"If you don't do it within 90 days, the court is still allowed to give you relief. It is permissive relief, but it's a case-by-case decision and it's up to the judge."

A judge will hear Durden’s case in June. He hopes to get more sympathy in court than what he's received from the county authorities. They threatened to throw him in jail if he doesn't pay them more than $1,000 in back child support -- for a child that isn't his own.

"I'm falling behind on my bills because I got to pay for a kid that's not even mine. It's crazy."