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107 W. Va. L. Rev. 867 (2004-2005)
The Plight of Putative Father: Public Policy v. Paternity Fraud

handle is hein.journals/wvb107 and id is 877 raw text is: THE PLIGHT OF A PUTATIVE FATHER: PUBLIC POLICY V. PATERNITY FRAUD I. INTRODUCTION ..................................................................................... 867 II. R ES JUDICATA ....................................................................................... 869 A. Res Judicata in D ivorce ........................................................... 871 B. Exceptions to Res Judicata ............................. 873 IIl. FRAUD AND FRAUDULENT CONCEALMENT .......................................... 874 A . Types of F raud ........................................................................ 881 B. West Virginia's Application of the Fraud Exception ............... 883 C. West Virginia's Public Policy and its Relationship to Fraud.. 885 D. How Other States are Dealing with Paternity Fraud .............. 888 IV. THE WEST VIRGINIA SUPREME COURT OF APPEALS' ANALYSIS OF BErTYL. W . ..................................................................... 890 V. STATES THAT REFUSE TO APPLY RES JUDICATA IN PATERNITY DISESTABLISHM ENT CASES .................................................................. 895 VI. W EST VIRGINIA' S SOLUTION? .............................................................. 897 I. INTRODUCTION It seems both fair and logical to think that a putative father, or a man who is not the biological father of his child, should cease paying child support once he has disestablished paternity. Surprisingly, in West Virginia and several other jurisdictions, a putative father who has disestablished paternity is often forced to pay child support if he is divorced and the child at issue was born dur- ing his marriage. This problem is more prevalent in cases of divorce because parties are expected to resolve all issues concerning the marriage, such as child custody, child support, alimony, property settlements, and paternity, in a divorce proceeding. If a putative father is not aware that paternity is at issue, how is he expected to raise the issue of paternity in a divorce proceeding? Many courts share the opinion that a final divorce order is a final adjudication on the merits of all issues concerning a marriage.1 Therefore, if a final divorce order has been rendered and a putative father subsequently discovers that he is not the biologi- I See Nancy Darlene M. v. James Lee M., Jr., 400 S.E.2d 882, 885 (W. Va. 1990), amended by 464 S.E.2d 79 (w. Va. 1995).