Laurel Leff Photo
Attorney Wolf: Putative dads’ rights more protected now.
Under glaring lights, Marquise Parker was handed the results of a paternity test he had taken weeks before. An audience of about 40 people looked on expectantly. Davette Fowlin, the child’s mother, eyed Parker as he glanced at the verdict that would determine his future.
The results were positive. He is indeed the daddy.
Parker didn’t howl in despair. Fowlin didn’t whoop in victory. He shrugged; she shifted uncomfortably.
For this wasn’t the set of the Maury Show. This was the latest episode of “Paternity Thursday,” a real-life drama played out in rapid-fire segments in the fluorescent-lit Courtroom 3A at 235 Church St.
It’s a weekly mini-series in which Family Support Magistrate David Dee hears the so-called “paternity docket,” anywhere from 30 to 60 cases that try to establish who the father is and how much he should pay in child support.
From 10 a.m. to 1 p.m. this past Thursday, Dee plowed through 56 cases, of which Parker’s case was No. 19. As Dee moved briskly through the cases, the atmosphere was subdued. The courtroom decorum was broken only by the chatter of children squirming on uncomfortable benches and the babble of toddlers perched on their mothers’ hips as their fate was decided. Unlike in popular culture scenes filled with outbursts and hysteria, these mothers and putative fathers glided past one another in stony silence with barely a nod of recognition.
“Ladies On The Left”
Last Thursday at 10 a.m. the hallway outside Courtroom 3A was buzzing as men and women, and some boys and girls, gathered in separate clusters accompanied by parents, siblings, friends and more than a few children.
Inside the courtroom, most of the seats were taken as the session began with instructions for “guys” to stand to the right when their case was called; “ladies on the left.” If a guy or a lady didn’t show, which happened often, the lone participant was instructed to stand in the middle.
Magistrate Dee, who was just reappointed by Gov. Malloy after four years in the position, started with a clear statement of the putative fathers’ rights. He repeated some version of the statement dozens of times during the proceeding. The father, he explained, has the right to be represented by an attorney, who will be appointed for him if he’s indigent. He has the right to genetic testing at a cost of $30, which the state will pay for someone found to be indigent. And the father has the right to a trial to prove, or disprove, his fatherhood.
Dee also made clear the responsibilities that accompany a legal declaration of fatherhood: A support order can be entered based on ability to pay, and wages can be garnished to pay it; failure to pay support could lead to contempt proceedings and possible incarceration.
As he moved through the docket, Dee repeatedly let the fathers know their rights and, if they chose to waive their rights, to do so on the record.
“We do our very best to make sure everyone’s rights are considered,” Assistant Attorney General Amy Guido said during a break between representing the state’s and the mothers’ interests in all 56 cases heard Thursday.
Patricia Buck Wolf (pictured in top photo), a New Haven lawyer who was in court Thursday as guardian ad litem for one child and who often represents putative fathers, agreed. “They’re much more protective of rights, particularly in the past five years,” Wolf said after court adjourned Thursday.
The vast majority of cases heard Thursday were petitions for paternity at various stages in the process. At an initial hearing, the man can either make “an admission” that he is the father or ask for genetic testing to determine his relationship to the child. Or, at a subsequent hearing, he can receive the results of a paternity test he had already taken— as Marquise Parker had — and then, depending on the results, the court can issue a finding of non-paternity or order child support.
Among the paternity petitions and a few misplaced child support cases on Thursday, there were two petitions to open paternity. Petitions to open arise when a man has acknowledged paternity, either by signing a birth certificate in the hospital, at an earlier court hearing, or through a default judgment entered when he didn’t appear for a previous court proceeding. Months or even years later, the man may decide he’s not the biological father after all, often as a result of private genetic testing.
Genetic testing, both court-ordered and private, has become much more popular as the procedure has moved from a blood test to a mouth swab, and the cost has dropped. (Read a story about a walk-in DNA clinic in Dixwell.) Private testing is still much more expensive than the court-ordered variety, typically begininng at $400.
The putative father then must file a petition seeking to open the paternity judgment. These petitions are rare. The state Judicial Department said just 14 such petitions were filed in New Haven from 2007 to 2010; all the lawyers interviewed for this story said that number can’t possibly be right based on their experience. Harris Lifshitz, a recently retired magistrate who previously sat in New Haven, said his “ballpark guess” is that 10 such petitions are filed in New Haven a month. The department’s statistician, Greg Pac, couldn’t explain the possible discrepancy.
To open a paternity judgment, the man has to hire a lawyer himself (the court won’t pay at this stage), go to court and meet the tough legal standard of proving “fraud, duress or a material mistake.”
“The threshold is very high,” Assistant Attorney General Guido said. A paternity test proving that the man is not the biological father is often not enough. “It really is case by case” she said, and often depends on whether “the child already knows this person as the father.”
On this Thursday, one petition to open was dismissed when neither the mother nor putative father showed up. “Mr. Tate didn’t show up and he hasn’t in the past,” Assistant AG Guido explained. “It was dismissed out of hand.”
Wolf, the guardian ad litem for the child in that case, had planned to ask for more time to interview the mother, who had a new address. She was now out of the case.
Happy Endings
The other motions to open had a happy ending — at least for now.
One case was titled Sarah Pena v, Orlando Colon. Pena came to court with a man other than Colon, who never appeared. When her case was called, Pena quickly accepted the results of an independent May 10 paternity test that established someone other than Colon as the father. Assistant AG Guido did not oppose the motion to open the paternity judgment or the finding that Colon was not the father. Pena left the court holding hands with her male companion. Asked outside the courtroom for her reaction to the day’s proceeding, Pena said, with a smile, “it’s all good,” and declined to say anymore.
Another three cases were “exclusions,” where findings of non-paternity were entered. Eve Hunter cradled an infant wearing a pink hat as she stood before the magistrate. Maurice Gomes, whose name appeared on the court file, wasn’t there. But no matter. Hunter had named someone else as the father. Magistrate Dee entered an order of non-paternity for the non-appearing Gomes.
In three other cases heard Thursday, the fathers acknowledged paternity without the benefit of DNA testing. Those are the cases that worry lawyers involved in family support system the most.
“Everybody should really get DNA testing,” said Barbara Morelli, a Plantsville lawyer who has a state contract to represent putative fathers in these proceedings. On Thursday, she split the duty with Laureen Vitale. “All of the people who come in don’t really know now how difficult it is to reopen cases later. They’re young and don’t realize the long-term effect. They’re going to be responsible for support for a very long time. Today is the day to find out.”
But some don’t —which worried Magistrate Dee.
In a conversation in his chambers after the docket was heard, Dee said he can’t order genetic testing from the bench. Yet, like most magistrates, he thinks genetic testing should be done in every case, he said.
Earlier in the day, Dee had pushed Kewon Strickland on his waiver of a paternity test. The question before the court was the paternity of 1 1/2‑year-old Kaliegha. Kaliegha wore extra-big pink sunglasses; she clutched a doll as her mother, Mariam Ortiz, held her while the case was heard.
When Strickland waived both his right to an attorney and his right to genetic testing, Magistrate Dee repeated his mantra: “It is difficult, if not impossible, to open that judgment if you change your mind.”
Knowing all that, you’d still like to go forward,” he said in what sounded like half-question, half-plea.
Yes, Strickland said, he did want to go forward, The admission of paternity was made as a result of his “own free will.”
Dee might have had good reason to worry. Asked about his admission outside the courtroom, Strickland, 25, said he and Ortiz have been together for eight years and have a 4‑year-old son. “I don’t see any reason for testing right now,” he said. “I can save up for an attorney and reopen the case.”
In the meantime, Strickland had asked the judge for structured visitation and maybe even joint custody, which led Dee to send the case to another court division. In the hallway, Strickland said that his relationship with Ortiz is “on and off” and that he wants regular visitation. “She’ll give it to me and then take it back. I don’t want it to depend on mad today, happy tomorrow.”
Josue Alvarez also declined to get genetic testing to determine the paternity of three children, all supposedly with mother Nitzayri Almodovar. “Do you request genetic testing?” he was asked.
“I am the father” was his reply to a question about a 2 1/2‑year-old boy. The couple supposedly have an older child and a two-month-old together as well. Dee entered a judgment of paternity and support for all three children.
“I know he’s my son,” Alvarez, a 28-year-old unemployed mechanic said after the magistrate entered the order. “He’s my son.”
Robert Cirino was just as emphatic in rejecting genetic testing for his 4‑year-old child. At both the beginning and ending of the case, Dee scolded Cirino, who had turned 18 a month earlier, and the child’s 19-year-old mother, Norma Tixi, for wandering off during the proceedings.Their case had to be called three times.
Dee stressed the financial and legal responsibilities that come along with Cirino’s admission. “I’m a man. I want to take of my responsibility,” Cirino said outside the courtroom. “That’s all I got to say about that.”
He seemed more interested in the multiple surgeries, beginning Monday, he needs to repair a shattered elbow. Probing to assess the injury’s effect on Cirino’s ability to work, Dee asked whether he had been hurt in “an accident or work related or something outside of that.”
“Something outside of that,” Cirino replied.
Asked in the hallway about the injury, a friend who accompanied Cirino to court made a gesture: pulling the trigger on a gun.
Emergence Of “Paternity Thursday”
Magistrate Dee’s advice: Take a DNA test.
The paternity docket arose from a series of Congressional mandates beginning in the 1970s. Before that, custodial parents who wanted financial help caring for their children had to hire a lawyer and file a complaint in court to establish paternity and demand support.
For public policy and budgetary reasons, the U.S. Congress sought to shift the care of children born out of wedlock from the state to their fathers. It enacted Title IV‑D of the Social Security Act to encourage states to get fathers to pony up by reimbursing the administrative costs of running support enforcement programs. Welfare recipients also had to assign their right to child support to the government in exchange for state benefits and assume the risk of losing those benefits if they didn’t cooperate with collection efforts.
Over the next 30 years, the Congress adopted other measures to induce states to create procedures for establishing paternity and enforcing child support. The federal government has largely succeeded: only 20 percent of children born out of wedlock are now supported by state assistance, compared to 80 percent two decades ago.
In Connecticut, a 1986 law created the family support magistrate division of the superior court to establish paternity for children born out of wedlock, and to issue and enforce financial and medical support orders. Families seeking either cash benefits or health care coverage through the Husky program must have their cases adjudicated in the magistrate division. The state Department of Social Services administers the program; the state Attorney General’s Office represents both the DSS and the custodial parent in court. Nine magistrates hear the cases, with another four or five retired magistrates pitching in as referees.
After reaching a high of almost 5,000 new petitions for paternity statewide in the mid-1990s, as the relatively new program got off the ground, the number of new petitions has leveled off to about 1,500 a year, according to Judicial Department records. New Haven still has enough new paternity petitions, about 400 a year for the last four years, to devote an entire day to the docket. Although courts around the state hear these cases, Hartford is the only other courthouse to devote an entire day to one type of case.
In New Haven that means there’s Interstate Monday for interstate and telephonic cases, as well as those requiring more time; Child Support Tuesday to determine the father’s financial contribution; Contempt Wednesday to deal with fathers who aren’t making their payments; and Modification Friday to hear arguments for changing established support arrangements.
It all starts with Paternity Thursday. Fathers can be held financially responsible only if they are found to be the legal father.
The Shackled Appear
Although Dee didn’t make much headway getting three young men he encountered Thursday to take a paternity test, he pointed to one area where the division has made a difference — with the prisoners who are transported from around the state for hearings here. Dee said that since September, when he began his New Haven rotation, the state-contracted lawyers have been meeting with the prisoners in lockup before the session to explain the right to counsel and the importance of genetic testing.
“I think over 90 percent of the prisoners who become aware of it early request genetic testing,” Dee said.
Dee’s impressions were born out during Thursday’s docket. The ten prisoners who appeared, all in handcuffs and some shackled, had counsel and requested testing if they hadn’t received it already.
Parker, who was handed the results during the hearing, was among them. In fact, lawyer Morelli, who represented Parker, persuaded the court to continue the case based on problems with the lab’s recording of the the date of the test.
“Mr. Parker wants a redo on the test,” she told the magistrate.
“It’s virtually impossible to get a false positive,” Dee reminded her and Parker. Still, Parker wanted a new test. He got a new test.
Most of the prisoners either accepted the results of their paternity tests, or asked for them for the first time.
Asti Butler requested counsel and genetic testing when his case was heard. Some family members apparently showed up just for the relatively fleeting view of Butler.
“See ya Saturday,” Butler said to his mother as he was escorted back to lock up.
“Love ya,” she replied.
There were some last-minute decisions to get genetic testing. James Jones’ case was presented as an admission, meaning he had agreed ahead of time to acknowledge the child. Asked whether he would like to admit, James Jones at first said yes. But when asked specifically whether he wanted to request genetic testing, Jones also said yes.
The mother looked startled and started to object. Dee interjected, “It’s his right, ma’am.”
The magistrate then added, “I guess that was a surprise.”
Lamont Gates also decided at the last minute to request genetic testing for the 10-month-old girl he held protectively in his arms outside the courtroom after his case was heard. Gates, 18, said he hadn’t signed her birth certificate at the hospital when the girl was born. “Because he didn’t have his ID with him,” the mother, Twinajha Perry, 19, said quickly.
Gates said he had come to court intending to acknowledge paternity, but decided to take the test when he heard it was free. “I just wanted to take the test to be sure,” he said. “I know she’s mine.”
No-Shows & No Jobs
If the putative father doesn’t show, the court can enter a default judgment, which makes him the legal father. That happened to Jamar Sims, who didn’t appear for the hearing on a 4 1/2‑year-old boy. Magistrate Dee set custody at $120 a week, plus back support of over $6,000.
If the mother doesn’t appear, especially if it happens repeatedly, the magistrate can dismiss the paternity petition. Montez Walton showed up, but the mother, Lakeisha James, didn’t. Assistant AG Guido noted that Walton had never made a payment for the child as far as she knew, but that the mother hadn’t ever appeared either, so “you can go either way,” she told the magistrate. He dismissed the case.
Once paternity is established, the question then switches to the amount of child support and how the father can possibly pay it. None of the prisoners who appeared on Thursday were earning money or had any assets, so Dee focused on when they were to get out and how they could get a job.
As he had with the importance of genetic testing, Dee tried to impress upon the fathers the serious consequences of failing to try to get a job and pay support. “You have a duty to support and maintain your child,” he told Adrian Nelson, the only father to hold a child as he stood at the podium. The boy in his arms, however, wasn’t the subject of the paternity petition.
“If you’re working for pay and you don’t pay support, it can be considered willful noncompliance and you could go to jail,” Dee told Nelson.
Nicholas Maturo, who was in prison, accepted the results of a paternity test for a 7‑month old. Asked if he had a job to go back to, Maturo said, “I haven’t got anything set up but I will find one.”
Fathers with records, such as Nelson and Maturo, have an added difficulty. But none of the men who appeared Thursday were likely to have an easy time of it. Only two of the men said they were employed; only one reported having full-time work. How the others would find a job and make support payments were issues for another legal proceeding — and another day.