Paternity cases put courts up against centuries-old legal and social traditions

July 10, 1991|By Patti Doten | Patti Doten,Boston Globe

BOSTON -- For four years, Kevin Barboza paid court-ordered support stipends of $90 a week to a child that blood tests had proved was not his own.

He also carried family health insurance for this child -- a child whose biological father was known by name to the court.

Finally, after his case slowly made its way through the court system, Mr. Barboza, 32, was vindicated.

He received word Friday that he had won his paternity case: a complex matter in which 20th-century scientific technology ran smack up against 18th-century legal and social traditions. A case that pitted him against the power and resources of the state of Massachusetts. A case that would decide the future of a child.

In Friday's ruling, Mr. Barboza was granted a divorce, relieved of support obligations and told he would receive a $5,670 reimbursement from the Department of Revenue.

"At last, I can get on with my life, my schooling," Mr. Barboza said this week. "I think the judge in this case was very fair, very thorough and wrote a very insightful decision. In time, I just hope the mother does the right thing by this child."

The 1777 law that kept Mr. Barboza in the courts for so many years was written to protect a child from being "bastardized." In other words, the law presumed that a husband was the father of any child born during a marriage, even if the couple had been estranged for years. In the language of the court, for a man even to question paternity of a child born to his wife was "inherently repulsive."

But as that law moved into the 20th century, a husband in Massachusetts was able to rebut the presumption of paternity in three ways: lack of access, infertility and blood tests. In 1987, Mr. Barboza, his estranged wife, Deborah, and the child in question submitted to blood tests. The results showed that Mr. Barboza could not be the father of the child. But it took him until February 1991 to get those test results admitted in his trial for divorce. During that trial, he hoped to establish non-paternity and non-liability for the child in question.

But on the other side is the child: a child who was told that her father was Kevin Barboza. A child who called him Daddy and accepted gifts from him at Christmas and on her birthday. A child who has not seen Mr. Barboza for almost five years.

While Mr. Barboza argued his case strictly on biological grounds, the Department of Revenue countered that larger moral and ethical concerns were at stake. Should a man who acted as the father of a child for years, providing financial and emotional support, simply be allowed to walk out of her life?

Last week, the Massachusetts court said yes.

Paternity cases have been cropping up throughout the nation during the past decade. They are on the cutting edge of family law as courts wrestle with changing sexual mores, non-nuclear family situations and the protection of children.

The courts have moved and will continue to move slowly and carefully, as they did in Mr. Barboza's case. It took Judge Elaine Moriarty more than four months to hand down her ruling instead of the usual 90 days.

"If this case had just been about money," said Mr. Barboza, a social worker, "I think I would have taken off long ago. Given up. But it's the principle of it all. There's a child's life at stake here. And the child deserves to know the truth. To know who her father is. To see that her birthright is protected."

Since Mr. Barboza's estranged wife receives financial help from Aid to Families with Dependent Children, he has been making $90 weekly payments to the Department of Revenue, which oversees the collection of support for children in families on public assistance. He has also spent thousands on legal fees. Since his wife is on welfare and deemed indigent, she has been represented not only by attorneys with the Volunteer Lawyers Project but also by lawyers from the DOR.

DOR officials may pursue this case through the appeals process, said Mr. Barboza's lawyer, Anthony Neal, since they face a loss of revenue if husbands are allowed to contest paternity at the time of divorce.

"This is a case with a lot of implications," said Mr. Neal. "There are a lot of people living together who are not married; there are a lot of stepfathers. The judge did not want to discourage voluntary support of a non-marital child."

Marilyn Ray Smith, chief legal counsel for the child support enforcement division of the DOR, said that the agency was disappointed with the ruling and would decide within 30 days whether to appeal.

Unfortunately, the opposing side goes unheard. Mrs. Barboza's lawyer said last month that it would be irresponsible for her to comment on the case before a ruling was handed down. She did not return phone calls this week.

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