Plog and Stein, P.C., practices family law in the Denver, Colorado metropolitan area. Though our cases generally deal with divorce and custody, from time to time we get what are called “juvenile” cases, which are generally child support or “paternity” cases.
In Colorado, paternity cases stem from C.R.S. Title 19, Article 4. While driving to work today, I heard mention of Arnold Scharzenneger and his recent troubles. I was shocked to hear that his recent marital troubles stemmed from the fathering of a child with someone from the household staff. This got me thinking about paternity law as applicable to him.
The news story regarding Arnold indicated that the woman with whom he fathered the child roughly 10 years ago was married. The first thought that popped into my head was that unless paternity testing was done or he owned up to it in an offical capacity, the legal presumption would be that the child was the child of the woman’s husband, not Arnold. Pursuant to C.R.S. 19-4-105, a child is presumed to be the child of the husband if the parties were married or divorced at least 300 days after the marriage is ended. It is my understanding that Arnold has acknowledged and supported the child. Thus, the husband is off the hook in terms of bearing financial responsibility for his wife’s indiscretions.
However, what if Arnold hadn’t step up to the plate? Pursuant to C.R.S. 19-4-107(1)(b), the husband in Arnold’s case would have had only 5 years to legally challenge whether the child was his due to the parties being married. This does not seem fair. What if the man started to have suspicions when the child was 10? The current law almost promotes an aire of discord for married people in that if a husband is not 100% sure that a child is his he better seek a paternity test before the child turns 5. I would like to think that in most instances married people have children with their spouses. Unfortunately, our lawyers sometimes see the opposite. This poor man could have been potentially legally forced to pay child support or more for a child that was not his.
Another thought that worked its way into my thought process was that of child support. Though child support is generally set forth pursuant to C.R.S. 14-10-115, in paternity cases, child support must also be analyzed pursuant to Title 19. In a divorce or custody case in which paternity is not an issue, child support is generally assessed back from the date of the filing of the case or service of legal papers on the other party, whichever came first. In a Title 19 case, child support can be assessed all the way back to the birth of the child. This can include birthing costs. Additionally, while the court in a regular divorce or custody case will generally follow the statutory guidelines in determining child support, the court in a paternity case has more latitute, pursuant to statute, to consider other factors.
Why the difference in treatment of child support in a paternity case as opposed to a divorce case? I have pondered this question from a public policy standpoint. I have determined that the presumption is that in a marriage case, the child has been supported by the payor while the parties were together. In a custody case, the actual paternity is not an issue and the legislature presumes that once paternity is known the payor (generally the father) will do the right thing and support the child. This is not always the case. In the paternity case, the presumption must be that paternity is not known, and therefore, support has not been paid consistently since birth. What we have is a wide array of standards that don’t always gel or make sense. A client needs to make sure his or her attorney is abreast of the variations between a custody or divorce case and a Title 19 paternity case as relates to child support.
There are ramifications for all of our actions when we procreate. I am guessing Arnold didn’t think about that at the time. He also probably did not ponder that his actions could affect another man financially. Now his True Lies have made him the Terminator of his marriage and, like Conan the Destroyer, he has helped ruin someone else’s marriage, leaving the husband and his own family as Collateral Damage.
