Categories: Ask Rinaldo
      Date: Dec  1, 2007
     Title: What rights do fathers have when there has been paternity fraud?
Attorney Del Gallo explains the law regarding paternity fraud.




While "paternity fraud" has been a catchy topic as of late, as of December 1, 2007, only 10 courts in the United States have actually used the term in an opinion. Nonetheless, a Google Search showed 59,400 hits for the same term on the same date.  The lack of use of the term should suggest to one how uncomfortable courts are with not only the term, but the subject. 

This article focuses on Massachusetts law, but provides rules that may be of general applicability.  Of course, those from other states should do additional research on their particular state when confronted with a problem.  This article is a good place to start, however.

"Paternity fraud" occurs when the mother is not truthful about who is the father of the child, usually getting the husband to believe he is the biological father, when he is not. Of course, paternity fraud can happen even out-of-wedlock. While rare, it could in theory happen to an adulterous male when a mother claims he is the parent, when the mother knows he is not and that the father is in fact her husband.

In numerous instances, there may be a genuine mistake about who is the father on the mothers part, but the mother does not convey to the putative biological father that there is a substantial risk that he may not be the real father.  Such can occur with the common situation wherein the wife is cheating on her husband or steady boyfriend yet fails to communicate this fact; there then exist a real chance that the husband or steady boyfriend is not the father. Had the father known of his wife’s or girlfriend’s unfaithfulness which was otherwise concealed from him, he might have obtained genetic testing and/or refused to sign the birth certificate. "[Fraudulent conduct exists in every case where a wife gives birth to a child cognizant of the fact that paternity is uncertain, yet remains silent while her husband innocently assumes the care of the child." Betty L.W. v. William E.W., 212 W. Va. 1, 11-12 (W. Va. 2002)(Maynard dissenting).

Paternity fraud is a big problem.  One judge of West Virginia's highest court put it this way:  "In 1999 alone, almost one-third of 280,000 paternity cases evaluated by the American Association of Blood Banks excluded the individual tested as the biological father of the child. In a period of only one year, that is almost 100,000 men who were falsely accused of being the father of a child which they simply did not father. And that is only one year!" Betty L.W. v. William E.W., 212 W. Va. 1, 12 (W. Va. 2002)(Maynard dissent) (emphasis supplied). 

There is relief in Massachusetts, however. "A judgment of paternity may be set aside for good cause shown . . . in accordance with rule 60 (b) of the Massachusetts Rules of Domestic Relations Procedure." In re Paternity of Cheryl, 434 Mass. 23, 29 (Mass. 2001).  One may also file an independent action in equity.


WHY CAN’T I JUST SAY I AM NOT THE FATHER IF I AM NOT THE FATHER? (The basics of issue preclusion.) 

In American Courts, one simply cannot re-litigate a claim that has already been litigated and come to judgment. For instance, if one were found negligent in a traffic accident, one cannot claim in a subsequent action that one was not negligent in that same traffic accident. This is called "claim preclusion" or "res judicata."

So too for legal issues or facts that were necessary to decide a given legal claim. "When an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim." Restat 2d of Judgments, § 27. 

The better use of terminology is to consider already litigated claims as resolved under "claim preclusion" or "res judicata." It comes as no surprise that if you sue someone once and lose, you ordinarily cannot sue again over the same set of facts with the same lawsuit. Technically, claim preclusion also applies to claims that could have been brought under the same transaction or occurrence that was litigated, but were not raised.  "Collateral estoppel" or "issue preclusion," by contrast, precludes litigants from relitigating issues decided in a prior action that were strictly neccessary for the judgment, even if under a different claim or theory for liability.  

Collateral estoppel is needed in the law because issues already litigated may come up in again in later litigation based upon separate events. In the child support context, the classic "collateral estoppel" or "issue preclusion" issue is whether or not someone is a child's father in a subsequent action to modify a child support order. The modification based upon the change of circumstances has never been litigated before (thus collateral estoppel does not apply), but paternity of the child has. In the child support context, the classic "claim preclusion" or "res judicata" is whether a given judgment for child support is valid after it has already been litigated, and after it has been decided that one is the father of the child and owes a duty to support.  

"A fundamental precept of common-law adjudication, embodied in the related doctrines of collateral estoppel and res judicata, is that a right, question or fact distinctly put in issue and directly determined by a court of competent jurisdiction cannot be disputed in a subsequent suit between the same parties or their privies.'" Anderson v. Anderson, 407 Mass. 251, 255 (Mass. 1990)(internal citations omitted).

"Under collateral estoppel, once an issue is actually and necessarily determined by a court of competent jurisdiction, that determination is conclusive in subsequent suits based on a different cause of action involving a party to the prior litigation. To preclude parties from contesting matters that they have had a full and fair opportunity to litigate protects their adversaries from the expense and vexation attending multiple lawsuits, conserves judicial resources, and fosters reliance on judicial action by minimizing the possibility of inconsistent decisions." Fidler v. E.M. Parker Co., 394 Mass. 534, 539-540 (Mass. 1985)

"A verdict and judgment are conclusive by way of estoppel only as to those facts which were necessarily involved in them, without the existence and proof or admission of which such a verdict and judgment could not have been rendered.The estoppel is not confined to the judgment, but extends to all facts involved in it as necessary steps or the groundwork upon which it must have been founded. It is allowable to reason back from a judgment to the basis on which it stands, upon the obvious principle that, where a conclusion is indisputable and could have been drawn only from certain premises, the premises are equally indisputable with the conclusion.  But such an inference must be inevitable, or it cannot be drawn." Olsen v. Olsen, 294 Mass. 507, 509 (Mass. 1936). 

So how is this all related to paternity fraud? Most relevant here, to be ordered to pay child support, you must be adjudicated the father.  If you are not the father (or non-custodial mother), you will not be ordered to pay child support, unless you have somehow adopted the child and put yourself in the biological fathers shoes.  In an effort to modify the support, such a person could not later claim not to be the father.  This is known as "issue preclusion," because it was an issue necessary to adjudicate the earlier child support claim claim.
As to the existing child support action, it also constitutes claim preclusion (res judicata) because the duty to pay child support constitutes its own action and has already been litigated. (This is not to suggest, of course, that one may not modify a child support order based upon a change of circumstance.) 

Unless there has been fraud or newly discovered evidence that could not have been discovered through reasonable due dilligence, one cannot later challenge a child support order by claiming they are not the biological father because this was necessary to establish the original claim of child support. While perhaps not being a technically correct understanding of "issue preclusion," it has been held that the mere act of a divorce has an issue preclusive effect as to paternity. "A divorce decree constitutes an adjudication of the paternity of a child of the marriage." Anderson v. Anderson, 407 Mass. 251, 256 (Mass. 1990). The result in Anderson is not surprising, however–courts invariably adjudicate child custody and child support in such actions, and I have never heard of a court allowing such issues to be put off for another day.

Nonetheless, Anderson v. Anderson, 407 Mass. 251, 255-257, 552 N.E.2d 546 (1990) has been interpreted by the Massachusetts Supreme Judicial Court as "suggesting claim for relief from paternity judgment under rule 60 b may not be precluded by finding that decree establishing paternity is res judicata." In re Paternity of Cheryl, 434 Mass. 23, 34 (Mass. 2001).  In other words, there is such a thing as "paternity faud" in Massachusetts, and one will not be precluded from a claim that he is not the father merely because he was determined the father in the past.


1. Under Rule 60 of the Massachusetts Rules of Domestic Procedure Rule 60.

2. As an independent action in equity.



Under the Massachusetts Rules of Domestic Procedure Rule 60, judgements can be set aside for the following reason:

(1) mistake, inadvertence, surprise, or excusable neglect;

(2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);

(3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;

(4) the judgment is void;

(5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or

(6) any other reason justifying relief from the operation of the judgment.  (this is typically known as the "catch-all" provision)

Massachusetts Rule Domestic Procedure Rule 60. (which is identical to Rule 60 of the Massachusetts Rules of Civil Procedure.)  It is important to note that while subsection 3 (for fraud) appears to have most immediate relevance, subsection 5 (it is no longer equitable to continue to enforce the judgment) should not be overlooked. While subsection 5 of Rule 60 was used unsuccessfully in In re paternity of Cheryl, it has the distinct advantage of not coming with a one-year time-limit.  Few courts actually make the mother or the Department of Revenue payback what they have already unjustly received, so the seemingly prejudicial limitation to prospective relief may not be as consequential as first appears.

Under Rule 60,

The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order or proceeding was entered or taken.


In other words, for paternity fraud actions made under Rule 60 subsections 1--3 (mistake, excusable neglect, newly discovered evidence, fraud), the action must be brought within one year and the amount of time must be reasonable--both time criteria must be met. As discussed, under section 5, the only requirement is that the time-frame be reasonable.

Of course, merely because you have filed a motion to set aside the judgment does not relieve you of the judgment. "The filing of the motion to aside the judgment does not set aside the effect of the judgment. "A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation." [Part A of the rule deals with clerical errors.] Mass. R. Dom. P. Rule 60.



Mass. R. Dom. P. Rule 60 does not mean that one cannot file an independent action.  In fact, you can file an independent action apart from Rule 60. Rule 60 states:

This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court. Writs of review, of error, of audita querela, and petitions to vacate judgment are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action.

Mass. R. Dom. P. Rule 60. (Massachusetts Rules of Domestic Procedure Rule 60 is identical toMassachusetts Rules of Civil Procedure Rule 60). In other words, apart from Rule 60, one may still file an independent action for fraud on the court, i.e., a new complaint, and the one year rule would not apply. This is critical in paternity fraud cases.  Courts have often ruled that they have inherent power to police against fraud.

The annotations to Rule 60 read as follows:

Rule 60(b)(3) allows relief from a final judgment, order or proceeding on the basis of "fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party".

The section does not limit the power of the court to:

(1) entertain an independent action to enjoin enforcement of a judgment on the basis of fraud; or.

(2) set aside a judgment on its own initiative for fraud upon the court.

Since neither the fraud nor misrepresentation is presumed, the moving party has the burden of proving by clear and convincing evidence that the alleged fraud or misrepresentation exists and that he is entitled to relief.

Prior to the adoption of Federal Rule 60(b), relief was afforded for extrinsic fraud, that is, fraud collateral to the subject matter, but denied for intrinsic fraud relating to the subject matter of the action. [Rinaldo's Notes: Click HERE to see such a case with the discussion of intrinsic fraud and extrinsic fraud.] Because of difficulty in differentiation, Rule 60(b) explicitly abolishes the distinction, at least with respect to a timely motion under Rule 60(b)(3). These distinctions may, however continue to exist with respect to the independent action and the action of the court on its own initiative.

Mass. Dom. R. Civ. P. Rule 60 annotations.  Therefore, I am spared embarking on the difficult subject of what is intrinsic fraud and what is extrinsic fraud when discussing Rule 60.

Again, one can still bring an independent equity action after a year has elapsed, but the law is mirky as to what additionally must be proven apart from usual showings under Mass. R. Dom. P. 60. You do have to prove additional things, but what exactly are those things are poorly articulated in the case law. As the Massachusetts Supreme Judicial Court explained in a case involving fraud (but not paternity fraud):

The wife would not have been able to prevail on a motion for relief from judgment pursuant to rule 60 (b) (2) or (3) because her complaint was filed more than one year after the final judgment in the divorce proceeding was entered. Unlike actions brought pursuant to subsections (b) (1), (2), and (3), which are subject to the one-year time limitation, there is no specified time limitation for bringing an independent action for relief from judgment. Mass. R. Civ. P. 60 (b). See Aronson v. Brookline Rent Control Bd., 19 Mass. App. Ct. 700, 708 n.21, 477 N.E.2d 182 (1985). That said, however, "a party should not be able to avoid the one-year or 'reasonable time' limits of Rule 60 (b) simply by commencing an independent action seeking the same relief." J.W. Smith & H.B. Zobel, Rules Practice § 60.16, at 488 (1977 & Supp. 2001). See United States v. Beggerly, 524 U.S. 38, 46, 141 L. Ed. 2d 32, 118 S. Ct. 1862 (1998) ("If relief may be obtained through an independent action in a case such as this, where the most that may be charged . . . is a failure to furnish relevant information that would at best form the basis for a rule 60 [b] [3] motion, the strict 1-year time limit on such motions would be set at naught"). See also Wheeler v. Springfield Sugar & Prods. Co., 15 Mass. App. Ct. 979, 979-980, 447 N.E.2d 13 (1983). To the extent that the claims raised by a party's independent action appear to fall within those provisions of rule 60 (b) that mandate a specific time limitation, but materialized too late to file in a motion to the court which rendered the judgment, the party must raise some additional ground or reason justifying relief after the expiration of the time limitation. See Geo. P. Reintjes Co. v.Riley Stoker Corp., 71 F.3d 44, 46-47 (1st Cir. 1995) ("where the body of the Rule contains an explicit time limitation for motions invoking specified grounds for relief, it would make no sense to apply the final general provision, containing no limit of time, so broadly as to cover all the grounds for which the time limit is expressly stated").

Rule 60 (b) does not identify the bases for an independent action. This substantive determination is made by recourse to "judicial principles governing untimely requests for equitable relief from fraudulent judgments" that existed prior to the adoption of rule 60 (b). Id. at 48. Historically, relief from a valid and final judgment required more than a showing of common-law fraud. See Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 244-245, 88 L. Ed. 1250, 64 S. Ct. 997 (1944) (untimely bid for relief justified only where enforcement of judgment would be "manifestly unconscionable"); Aetna Cas. & Sur. Co.  v. Abbott, 130 F.2d 40, 43-44 (4th Cir. 1942) ("it is well settled that [a conspiracy between plaintiff and his witnesses to present perjured testimony] constitutes no ground" on which court could deny enforcement of judgment in an independent action); Chicago, R.I. & P. Ry. v. Callicotte, 267 F. 799, 809-810 (8th Cir. 1920), cert. denied, 255 U.S. 570, 65 L. Ed. 791, 41 S. Ct. 375 (1921). Cf. Coughlin v. Coughlin, 312 Mass. 452, 454, 45 N.E.2d 388 (1942) (petition for modification of decree mandating spousal support not open to attack simply because of false testimony or inadequate presentation of case where "new" evidence was either known at the time of original hearing or was then readily ascertainable).

Sahin v. Sahin, 435 Mass. 396, 401-402 (Mass. 2001)

Like any other form of fraud upon which an action in equity is based, with paternity fraud, "[t]here is no time limitation that would bar a judge from setting aside a judgment for fraud upon the court." Sahin v. Sahin, 435 Mass. 396, 405 (Mass. 2001). While one can bring the motion to set aside for fraud at any time, clearly, the moving party must be ready for a defense of laches. ("Laches" is an equitable defense wherein it is argued somone sat on their rights for too long.) As the long quote shows, once one year passes, as for a claim based on fraud, a greater showing must be made than for an independent equity action than under rule 60.

The Sahin court did not emphasize that under subsection 5 or Rule 60 (governing prospective relief) there is no 1-year time limit. Arguably, since the one year limitation under Rule 60 was so relevant as for subsections 1,2, and 3 in Sahin,—requiring “heightened” evidentiary burdens—it could be just as argued since there is no limitation of time on subsection 5 (apart from reasonableness), victims of paternity fraud should not have to satisfy heightened evidentiary to at least enjoy prospective relief while forgoing retroactive relief. In other words, if they are not trying to seek retroactive relief and get back money paid, they should be able to obtain prospective relief (so that payments end) with a "mere" showing of common la


What then is fraud on the court? The Massachusetts Supreme Judicial Court has provided the following guidance:  

A "fraud on the court" occurs where "it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system's ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party's claim or defense." Rockdale Mgt. Co. v. Shawmut Bank, N.A., 418 Mass. 596, 598, 638 N.E.2d 29 (1994), quoting Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir. 1989). The doctrine embraces "only that species of fraud which does, or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery can not perform in the usual manner its impartial task of adjudging cases that are presented for adjudication." Pina v. McGill Dev. Corp., 388 Mass. 159, 165, 445 N.E.2d 1059 (1983), quoting Lockwood v. Bowles, 46 F.R.D. 625, 631 (D.D.C. 1969). A party seeking to demonstrate fraud on the court must prove "the most egregious conduct involving a corruption of the judicial process itself. Examples are bribery of judges, employment of counsel to 'influence' the court, bribery of the jury, and the involvement of an attorney (an officer of the court) in the perpetration of fraud." MacDonald v. MacDonald, 407 Mass. 196, 202, 552 N.E.2d 533 (1990), quoting Lockwood v. Bowles, 46 F.R.D. at 631-632. A party's nondisclosure to an adverse party (assuming that occurred in this case) or to the court (there is no suggestion that occurred here) of facts pertinent to a controversy before the court, without more, does not amount to "fraud on the court" for purposes of vacating a judgment under rule 60 (b). See Winthrop Corp. v. Lowenthal, 29 Mass. App. Ct. 180, 187, 558 N.E.2d 1138 (1990)   (nondisclosure of contingent fee agreement did not amount to fraud on court where disclosure required by contract). Cf.  Matter of Neitlich, 413 Mass. 416, 423, 597 N.E.2d 425 (1992) (finding fraud on court where attorney made false statement "with intent to deceive a court")

In re Paternity of Cheryl, 434 Mass. 23, 24 (Mass. 2001); Sahin v. Sahin, 435 Mass. 396, 405-406 (Mass. 2001)(internal citations omitted);   Sahin, by the way, while a case involving fraud in a divorce action, did not involve paternity fraud.

This appears to be a standardless standard ripe for judicial abuse. How can fraud ever not be an “unconscionable scheme”? How could paternity fraud ever not be “calculated to interfere with the judicial system's ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party's claim or defense”? How could paternity fraud ever not “defile the court itself” by causing the judge to believe someone is father when he is in fact not a father? How could paternity fraud not constitute "the most egregious conduct involving a corruption of the judicial process itself”? After all, a system designed to protect being children is being abused to favor a cheating wife and make a cuckolded husband pay for a wife's sin of adultery.  The wife makes misrepresentations to the court by holding out her child or children as being that of the husband, when she knows that they are either or not, or may likely be not.

Unwisely, the Massachusetts Supreme Judicial Court stated that in In Re Paternity of Cheryl “A party's nondisclosure to an adverse party (assuming that occurred in this case) or to the court (there is no suggestion that occurred here) of facts pertinent to a controversy before the court, without more, does not amount to 'fraud on the court' for purposes of vacating a judgment under rule 60 (b)." Of course, the mother is not merely being silent—she is holding her children out in the divorce that are the product of her adulterous affair as belonging to cuckolded children with affirmative statements. 

More importantly, the In re Paternity of Cheryl court did not articulate what the "more" is that needs to be proven in addition to "non-disclosure to a non-adverse party."  Such sentiments are almost useless--it would be an extremely rare case where the mother did not verbally hold the child out to the father and the public as being the biological offspring of her husband.

What is worse about these case is that a pretty sick form of fraud—tricking a cuckolded victim of adultery into believing that children are his when they in fact are not—is suggested to be a less serious form of fraud as, say, a patent law case wherein someone invited an article extolling the virtues of an invention for purposes of procuring a patent and overcoming an obviousness rejection.  (When something has never been made before but the patent examiner believes it is an obvious variant of what exists, an article praising the virtues of the product can help overcome that rejection.) 
This act of fabricating  and article that is praisewothy of an invention, the In re Paternity of Cheryl courts insist, is “egregious” fraud whereas paternity fraud is mere "common law fraud." Fraud, by definitition, is a material misrepresentation regarding a fact in contested legal matter. It would seem all fraud is bad, is "egregious," and assails the integrity of the judicial process. It is most egregious when the fraud is such that if believed, the wrong party will win the lawsuit. Yet you as a party litigating a paternity fraud case must understand that Massachusetts courts do not see all forms of fraud as egregious and necessarily warranting relief from judgment!

 The silliness of the In Re Paternity of Cheryl type of cases is a supposed distinction between one type of fraud that dupes a court into awarding a judgment that should not have been awarded versus but is somehow not “egregious” versus another type of case that reaches the same result yet somehow is “egregious.” Obviously, all such conniving trickery is egregious. In fact, since paternity fraud also involves the violation of the sacred marital bond, a very strong argument could made that it is more egregious type of fraud then other forms of fraud.

Less one think I exaggerate, both the Massachusetts case of In Re Paternity Cheryl and especially (and much more fully) the Vermont court in Godin v. Godin, cite Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238 (1944), a case involving manufactured articles claiming how great an invention was, wherein the articles were ghostwritten by the company that owned the invention and signed by someone else who purported to be a neutral person. While not stated in the case, presumably this helped get over a hurdle that the invention was merely an obvious variant of the prior art. Apparently, betraying the United States Patent and Trademark Office is more “egregious” then “merely” betraying one’s spouse by bearing a child that is a fruit of an adulterous relationship.

Courts once thought all fraud to be "egregious" and merely differentiated cases involving new discovered evidence with those cases where fraud was found.  There was no difference between mere "common law" fraud and "egregious" fraud. As the United States Supreme Court once put it early in the Twentieth Century:


'Without attempting to draw any precise line to which courts of equity will advance, and which they cannot pass, in restraining parties from availing themselves of judgments obtained at law, it may safely be said that any fact which clearly proves it to be against conscience to execute a judgment, and of which the injured party could not have availed himself in a court of law; or of which he might have availed himself at law, but was prevented by fraud or accident unmixed with any fault or negligence in himself or his agents, will justify an application to a court of chancery.'


PICKFORD v. TALBOTT, 225 U.S. 651, 658 (1912). Note the disjunctive "or" between the clause regarding unconscionable results and fraud. This  distinction is necessary with respect to newly discovered evidence since it may not necessarily be outcome determinitive. But fraud, which by definition relies on a material misrepresentation, is always egregious because it is either outcome determinative or highly likely to be outcome determinative.  In paternity fraud cases, it is always outcome determinative, since non-biological fathers are not obliged to pay child support unless they adopt the child as their own fully knowing the child is not their biological offspring.


Something should be said of the "clear and convincing evidence" standard by which fraud must be proven.  It is an evidentiary standard that is above "preponderance of the evidence" but below “beyond a reasonable doubt.” While it is conceivable that this standard might have a role because the mother might claim that she disclosed the risk of the child not belonging to the putative “father,” usually this is not argued.  Almost invariably, the D.N.A. test presents near certain evidence as to whether someone is, or is not, the father, and in paternity cases, the evidentiary burden is seldom a deciding matter. 


The Court in In re Paternity of Cheryl articulated why fathers that wait should be barred from seeking a claim:  

Moreover, the father failed to challenge the paternity judgment at the earliest reasonable opportunity, in the face of what he acknowledges was mounting evidence that he might not be Cheryl's biological father. He took no action in 1995 after he was informed, he says, by friends of the mother that he was not Cheryl's biological father. He took no action after the mother "unequivocally" confirmed, he says, that he was not Cheryl's biological father. He took no action after he observed that Cheryl did not share his, his parents', the mother's, or the mothers' parents' physical attributes. He took no action in 1996 when he discovered that his low sperm count could explain his and his wife's fertility problems. During all those years, Cheryl knew and relied on him as her father, and he enjoyed her love and companionship. See Wade v. Wade, 536 So. 2d 1158, 1160 (Fla. Dist. Ct. App. 1988) (declining to vacate paternity judgment because father "enjoyed the benefits of his representation as the child's father, including the child's love and affection, his status as father in the place of the natural father, and the community's recognition of him as the father").

In re Paternity of Cheryl, 434 Mass. 23, 32-33 (Mass. 2001).  The gist of In re Paternity of Cheryl is not to sit on your rights after you have been reasonable made aware that you might not be the father.  Other jurisdictions have similar rules, and have allowed a father to challenge paying child support even up to ten years after being ordered to pay child support. Click HERE to read about one Pennsylvania case holding so much. 

The first sentence of In re Paternity of Cheryl is worth repeating, ". We consider in this case whether a father may move to set aside a judgment of paternity when, more than five years after he voluntarily acknowledged paternity, genetic tests established that he was not the child's biological father."  In other words, the court knew he was not the father and not only would not return the child support already paid, but they would not free him of the obligation to pay child support in the future. For this reason, the case is controversial and decried by father's rights activist.  

This case has been important in other jurisdiction.  As one commentatory put it, "Two court decisions, In re Paternity of Chery l from the Supreme Judicial Court of Massachusetts and Godin v. Godin from the Supreme Court of Vermont are the most widely cited and offer the most detailed defenses among the decisions refusing to grant post judgment relief after a false paternity establishment." While these courts would never use such unflattering terms, they more or less argue that since children need certainty in their lives, since children would be shocked and hurt for life if they knew their “father” was not in fact their biological father, it is OK to make a person pay child support even though they know he is not in fact the biological father and he may have been tricked by the mother.



The In Re Paternity of Cheryl,  court expounded on how putting the needs of the child first justified foisting the cost on cuckolded husbands:

Where a father challenges a paternity judgment, courts have pointed to the special needs of children that must be protected, noting that consideration of what is in a child's best interests will often weigh more heavily than the genetic link between parent and child. See, e.g., Ex parte State ex rel. J.Z., 668 So. 2d 566, 569 (Ala. 1995) ("policy in favor of finality of paternity judgments means that a prior adjudication should not be subject to relitigation in the absence of truly compelling circumstances"); Richard B. v. Sandra B.B., 209 A.D.2d 139, 141, 625 N.Y.S.2d 127 (N.Y. 1995), quoting Ettore I. v. Angela D., 127 A.D.2d 6, 13, 513 N.Y.S.2d 733 (N.Y. 1987) ("unequivocal trend" has been to "zealously safeguard the welfare, stability, and best interests of the child by rejecting untimely challenges affecting his or her legitimacy"); Godin v. Godin, 168 Vt. 514, 523, 725 A.2d 904 (1998), and cases cited (noting that many courts have rejected attempts to reopen paternity judgments based on postjudgment blood tests "absent clear and convincing evidence that it serves the best interests of the child") . Like those courts, we have recognized that stability and continuity of support, both emotional and financial, are essential to a child's welfare. See, e.g., Adoption of Willow, 433 Mass. 636, 647 (2001), and cases cited; Gray v. Commissioner of Revenue, 422 Mass. 666, 675, 665 N.E.2d 17 (1996), quoting Duranceau v. Wallace 743 F.2d 709, 711 (9th Cir. 1984) ("it is hard to imagine a more compelling state interest than the support of its children").

In re Paternity of Cheryl, 434 Mass. 23 at 30-31.  The clear tenor of these opinions is that the cuckolded victim of paternity fraud has done something wrong, has been "untimely," or is not putting the interest of the child ahead of their own when they do not immediately challenge a finding of paternity.  There is a basic problem with this argument--we ordinarily do not make non-biological parents responsible for children that are not theirs simply because so doing might be in the child's best interest.  Yet such an enormous responsibility is summoned by an argument worthy of holding a shoppers coupon expired.


The “don’t sit on your rights” philosophy of In re Paternity of Cheryl presents a real problem for fathers, especially fathers who worry about the emtional welfare of children and are willing to take a child in their household though not theirs, but who do not want to pay the cuckolding mother for taking the children way from him. Fathers in intact families might feel pressure to quickly deny responsibility for a child that might successfully be integrated in the family for fear they will financially responsible for them should the marriage fall apart.

So too, cuckolded husbands might want shared custody of children they formed an attachment during the marriage, but might legitimately fear they will have to pay for the children that are not theirs when the marriage falls apart. While some might think that this “either you are in or your out” philosophy is fair to the father and is in the best interest of children, it is not self-evidently fair nor in the best interest of children.  Nonetheless, you are either in, or you are out, and men need to understand that there is great risk in not initially challenging paternity, no matter how obviously psychologically damaging it may be to so many parties, including themselves and the child.

Many in the fathers' rights think that it might be reasonable to allow a cuckolded husband be a “father” to a child that he did not actually father when he fully enjoyed the society of the child, but not compel him to support a child that is neither his nor in his household.  They claim the ability to claim to be a father one moment and not the other is a legitimate privilege that ordinary biological fathers or adoptive should not have.  After all, such a cuckolded husband is truly "sucking it up" for a child that is not his--the existence of such charity should not be reason to impose shocking financial obligations when the marriage falls apart. So they further argue, cuckolded husband should not be put in a position wherein they have to throw the child out of the house while the marriage is intact, which would have been a completely unnecessary evil if the marriage never does break up, or risk paying the adulterous mother for a child to live in another household should the relationship breakup.

While this sentiment is clear enough to fathers and those that favor not allowing a mother to benefit from paternity fraud, it needs to be driven home to those that do not understand the choice of evils that befalls cuckolded fathers and is worthy of some redundancy. To put it bluntly, while the father may have been willing to accept a child that was not his when the marriage was intact for the benefit of the child and he enjoyed the child's society, that is poor excuse to abuse this Christian charity as a reason to exacerbate the evil of cuckolded husband by forcing him to pay for the child even when the mother decides to pack her bags and move out, and when he will be denied society of the child.  The fault was that of the adulterous mother--not the father.

Nonetheless, those who are in a situation who actually know they are the victims of the wife’s meretricious extra-marital tryst and that the child is not theirs should remember that their charity of taking the child into their house while the marriage is still intact will be claimed as “self-centeredness” and “self-interest” and “putting their needs ahead of the child’s” when they try to avoid paying for a child that is not theirs when mom packs her bags. So too, those willing to go along with being the “father” though they really are not if they have shared parenting should not be stuck with being “dad” when they have been denied the benefit of shared parenting and are reduced to sending a paycheck and visitation every other weekend.

In re paternity of Cheryl represents a typical attitude of courts—they take a child from a father, and make the father pay even though he is not the biological father—because he has “responsibilities” and the mother (who cowers behind the child) has “rights.”  While outrageous enough when the child is in fact the biological child of the father, it goes beyond ever sense of human decency when the child is the product of an adulterous relationship.  Those in father's rights movement have continually observed the courts incessant finding of "responsibilities" for the act of fathering, and incessant finding of "rights" for the act of mothering.  "Rights and responsibilities" appear not to go hand-in-hand.  Yet this is especially magnified when a "child" is not the biological offspring of a "father," nor has been formally adopted.

Whether the courts are right or wrong, Massachusetts case law is clear that fathers that learn they are not the biological father have something to fear if they do not act immediately and reject the child. Whether this is right or wrong is the subject of debate. If your “child” has been D.N.A. tested and is not yours, you have to run the risk the marriage will breakup and you will face paying for a child that is not yours. Obviously, rejecting a child in your currently intact home, or with whom you currently enjoy shared parenting, that you developed a strong psychological attachment to is not the easily performed “responsible” tact that is talked much of in In re Paternity of Cheryl. There are those that might argue that accepting a child that is not biologically yours into your household is the acme of selflessness, not selfishness. While you may also believe this, you will be shocked at how this act of selflessness will be deemed an act of selfishness when you seek to avoid paying the women that cuckolded you and bore a child that was not yours but who you so charitably brought into your home.

Cuckolded husband may have to reject children from their households lest they be deemed “de facto” fathers of children that may ultimately, down the road, not live in their household. No doubt, this will result in more illegitimate children as husbands become much more reluctant to take in children as their own that are not their true biological children, but are the products of the mother’s adulterous relationship. Whatever the law should be, cuckolded husbands need to realize that there may be a high cost for taking the children of these adulterous sexual liaisons as one’s own--such generosity will only be rewarded with oppressive child support payments when mom decides to pack her bags and move out. 

This is especially true at the time of divorce. In an effort to minimize the emotional impact of a divorce on children, a cuckolded husband who has learned that the children are not his might want to spare the children of further agony by keeping it secret that they are in fact illegitimate products of their mother’s whoring around while the marriage was intact. However noble this might be, it will later have an enormous cost—no matter how outrageous the child support obligation becomes, the paternity fraud victim’s failure to dump “his” children at the time of divorce in an effort to spare them of the emotional trauma of knowing they are bastards and that the person they thought all their lives as “daddy” is in fact not their daddy will become the proverbial “no good deed that will go unpunished.” 


The In re Paternity of Cheryl court strongly suggested the critical time of questioning paternity was at the initial order stage. As they stated, "We assess the reasonableness of the five and one-half year interval between the entry of the paternity judgment in 1993, and the father's first motion for relief filed in 1999, in light of this jurisprudence. In 1993, the father had an opportunity to, but did not seek, genetic testing, and it avails him little to attempt to obviate that fact." 434 Mass. at 32. It might be a good idea to question paternity at this stage. 


A critical part of the In Re Paternity of Cheryl decision read as follows, “He never claimed, and the record, such as it is, does not establish that his decision to acknowledge paternity voluntarily at that time was conditioned solely on his understanding that he was Cheryl's biological father.” In other words, he had numerous reasons to suspect he was not the father but did not challenge the paternity finding. How do you differentiate In Re Paternity of Cheryl? If in your case the original child support order was conditioned solely on your understanding that you were the child’s biological father based upon the fraud on the mother, you may likely prevail in a paternity fraud action if your bring your action within a reasonable amount of time upon learning of the mother's perfidy.  As the court explained its reasoning, "As a consequence of the father's long delay before he challenged the paternity judgment, Cheryl's interests now outweigh any interest of his."  Clearly, the lack of a long delay may have resulted in the victim of paternity fraud losing the case.  The trick is not to wait too long after you have learned that you are not the father.  There must be newly discovered evidence--if it becomes stale you will lose the case. 


To determine what constitutes a "reasonable time" within which to seek relief under rule 60 (b) (5), we look to the individual circumstances of each case. As a general matter we agree that challenges to paternity under rule 60 (b) should not be permitted beyond "a relatively brief passage of time.” In re Paternity of Cheryl, 434 Mass. 23, 30 (Mass. 2001). “Courts have relied on a variety of factors in assessing whether a father's challenge to a paternity judgment has been made "within a reasonable time" under rule 60 (b).” In re Paternity of Cheryl, 434 Mass. 23, 30 n. 13 (Mass. 2001). “Factors include the interest in finality, the reason for delay, the practical ability to learn earlier of the grounds relied upon, and the prejudice to the other parties.” In re Paternity of Cheryl, 434 Mass. 23, 30 n.13 (Mass. 2001), quoting Ex parte State ex rel. J.Z., 668 So. 2d 566, 570 (Ala. 1995).


While seemingly remarkable, Massachusetts Courts have said: “An obligation for child support owed by a noncustodial parent does not automatically become void if the noncustodial parent returns to the household, assumes custody of the child, or resumes cohabitation with the custodial parent.” Department of Revenue v. C.M.J., 432 Mass. 69, 80 (Mass. 2000).


Department of Revenue v. W.Z., 412 Mass. 718, 721 (Mass. 1992) is one case that appears relevant with respect to the issue of getting money back once paternity fraud is found. It involves a case stemming out of Pittsfield, Massachusetts. The court at the begining stated the issue and the conclusion:

The defendant, who had been paying child support pursuant to court orders based on judicial determinations of his paternity, learned from the results of court-ordered blood grouping tests (conducted more than nine years after the first determination of his paternity) that he was not the child's biological father. He wants his money back. We conclude that on this record he is not entitled to reimbursement.

The father that was the victim of paternity fraud made his case:

The defendant argues that he has been obliged to pay for the support of a child of whom he is not the father and that he, in fairness, is entitled to restitution. He contends in particular that, because the department has been unjustly enriched, it should return the amount of the support payments. He also argues that he is entitled to recover on a claim of money had and received.

Department of Revenue v. W.Z., 412 Mass. 718, 720 (Mass. 1992). As discussed above, when you need to determine a fact or legal issue to render a judgment (it must be necessary and not merely useful or suggestive) that issue or cannot be re-litigated again later. This promotes judicial economy so things are not be re-litigated all the time. One such issue is that a given person was the biological father in order to establish child support, normally that issue cannot be re-litigated. "Anderson v. Anderson, 407 Mass. 251, 255 (Mass. 1990).


Using such logic the W.Z. court denied giving the father his money back because:

"The fatal weakness in these equitably based claims is that the defendant made all the payments pursuant to court orders that he did not challenge by appeal, one order entered following his guilty plea [for a criminal charge of non-support in district court] and the other entered in a civil action in which he had an opportunity to challenge the allegation of his paternity. It is not enough to show that the orders for support were based on a "mutual" mistake of fact. The defendant must present a substantial basis for vacating those judicial orders.

Department of Revenue v. W.Z., 412 Mass. 718, 720 (Mass. 1992). The court added in a passage that appears to fail to understand that issue preclusion (i.e., that an issue cannot be relitigated if it was the subject of a previous judgment) normally does not take place when the issue being precluded was obtained by fraud:

Principles of issue preclusion, however, bar the defendant from contesting his paternity as to past support payments because his paternity was necessarily determined in the civil nonsupport action. The issue of his paternity was raised and decided in that proceeding.

Department of Revenue v. W.Z., 412 Mass. 718, 721 (Mass. 1992).  It is a confusing sentiment--a request for relief from judgment under Rule 60 or an independent equity action. Virigina has rejected such logic. It has held "proof of fraud prevents the husband's action from being defeated by the wife's claim that he is collaterally estopped from challenging the issue of paternity which was tacitly determined in the prior divorce action." Cambel v. Cambel, (Virg. Crt. Of Appeals 1999)

The Department of Revenue v. W.Z. court concluded: 

In any event, the defendant presents no basis for retroactive relief from the child support order. Although we shall assume that the defendant could be relieved from the prospective application of the support order under Mass. R. Civ. P. 60 (b) (5), 365 Mass. 828 (1974), rule 60 (b) presents no basis for retroactive relief from the support order.

Department of Revenue v. W.Z., 412 Mass. 718, 721 (Mass. 1992)(emphasis supplied). In short, you couldn’t get the money back (retroactive relief) but you can stop further payments (proactive relief). Department of Revenue v. W.Z., is nonetheless a useful case because it shows that perhaps with mere common law fraud (which is apparently not enough for an independent equity action in Massachusetts), atleast one can obtain prospective relief.

Nonetheless, some jurist have questioned the use of the concept of issue preclusion or res judicata when the judgment was obtained by fraud. As one dissenter put it, "Although I generally concur with the application of res judicata principles to promote finality in judgments, in cases like the instant one, the application of res judicata should be modified when it conflicts with the state interest in preventing paternity fraud." Betty L.W. v. William E.W., 212 W. Va. 1, 11 (W. Va. 2002).

California, by statute have established such a rule. Cal Fam Code § 7648.4 ("Notwithstandi