Bill’s reauthorization uncertain as Republicans oppose some amendments

Associated Press

Legislation was to aid parents affected by paternity fraud

Delaware State News

DOVER — The "Nathaniel Hall Law" may not help Nathaniel Hall.

Created to help children and their families affected by paternity fraud, the measure — sponsored by Sen. Bruce C. Ennis, D-Smyrna — was crafted with Nathaniel’s saga in mind. But Delaware’s Supreme Court could block the law from helping.

Nathaniel is a 9-year-old boy who is disabled. The law was created to give his mother the opportunity to legally compel his biological father to give the 9-year-old’s doctors the information they need to treat him properly.

Paternity fraud occurs when a mother wrongly identifies a man as the father of her child.

When a man is named the father of a child, under what was the Delaware Uniform Parentage Act, that declaration of paternity can only be challenged within a two-year period.

Nathaniel’s legal father has been working to bring the issue of paternity fraud to light, not just for him, but for the son he thought was his. Though the child is not his biological son, the Delaware court system still says he is.

Three years ago, Roger Hall discovered that the boy he believed was his biological offspring was not his son. When he confronted his by-then ex-wife, Jennifer, she told him the truth. Though the child was conceived during wedlock, her husband was not his father.

Under Delaware law, if a married woman has a child, the baby’s parentage is automatically and legally determined. No questions are asked, and the mother’s husband legally becomes the child’s father.

The legal father has two years to challenge the paternity declaration; after that time it is very difficult, if not nearly impossible, to have the paternity declaration overturned.

The former couple talked about what they should do, not solely for Mr. Hall’s benefit but for their son’s.

"We came together and signed a stipulation that said I am not the father and we wanted to seek out the father," Mr. Hall said.

Nathaniel is autistic and cannot communicate how he is feeling; Nathaniel also has severe gastrointestinal issues that are making him very sick. His doctors are treating him but are working blind because they don’t have all of the information they require to help the small boy.

The Halls petitioned Family Court to have Mr. Hall’s paternity repealed so the court could then compel Nathaniel’s biological father to release his medical history to help in their son’s treatment.

Ms. Hall knows where Nathaniel’s biological father is, but he refuses to cooperate, Mr. Hall said.

Because of the two-year statute of limitations for paternity in Delaware law, their petition was denied.

Mr. Hall said he feels the painful results of the court’s decision every time Nathaniel is taken to the emergency room, and the attending physician calls him to inquire about the boy’s family medical history and Mr. Hall can’t help.

The Halls' initial petition was made and denied in Family Court, much to their shock and surprise.

Mr. Hall wasn’t going to take that lying down.

"Why can’t we do this? We agree, it is for Nathaniel," he said.

He formed the group Delaware Citizens Against Paternity Fraud to raise awareness of the issue and to help Nathaniel.

He also reached out to state lawmakers to see if the law couldn’t be changed.

In 2008, Sen. Ennis heard Nathaniel’s story and decided he wanted to help. He drafted Senate Bill 117.

The measure created a means to reverse the declaration of paternity after the 2-year window if it was in the best interest of the child.

The bill worked its way through the General Assembly. It took two years but the measure was finally approved and signed into law earlier this year.

"This bill could be called the Paternity Fraud Bill — I call it the Nathaniel Hall Bill. Nathaniel is a 9-year-old boy that can’t get the medical attention that he needs because the biological father will not cooperate and provide the medical information needed from the father," Sen. Ennis said when the measure passed the Senate in April.

The act had a lot of supporters — the General Assembly’s Family Law Commission unanimously supported the bill at its meeting in March.

There were also those that tried to block the bill’s passage — Rep. Thomas H. Kovach, R-Brandywine Hundred South, was one that raised concerns about the bill during the process. After it passed the state Senate, the measure stalled in the House of Representatives, but after some amendments were made, the bill was released and subsequently passed by the House.

The final version, and what became law, still allows a paternity declaration to be overturned when it’s in the best interest of the child, but the petitioner has to also prove he was defrauded into believing he was a the father of the child.

"Jennifer and I were ecstatic. We were like, our legislative process works. People actually listened to us," Mr. Hall said.

The feeling didn’t last long.

While the process to create a law that could help Nathaniel’s case went on, Roger and Jennifer Hall continued to work their way through the court system hoping for help.

The Family Court would not help them — their multiple petitions were denied.

So they took their legal fight to the Delaware Supreme Court.

That battle is currently waging, but Mr. Hall doesn’t believe the court will decide in their favor.

After the Nathaniel Hall bill was signed into law, Nathaniel’s legal parents believed the Delaware Supreme Court would follow the letter of the new law and grant them their petition.

On Aug. 13, the Halls received correspondence from their attorney that said the Delaware Supreme Court is requiring them to prove the constitutionality of the Nathaniel Hall Law and how and why it should help Nathaniel.

"Counselors should address the constitutionality of the (Uniform Parentage Act) as amended and whether the UPA, as amended, applies retroactively to this case, if not the constitutionality of the prior law," the Supreme Court request stated.

The Nathaniel Hall Law amended the Uniform Parentage Act (UPA).

Mr. Hall, his supporters and the drafters of the law are baffled.

"If the court wanted to know the legislative intent, why wouldn’t they contact the legislator to find out what the intent was?" Sen. Ennis said. "There is no doubt in my mind what the intent was."

The state senator believes the law is very clear.

"It is retroactive. I don’t know how it can be clearer. I thought there was a separation of powers here. The legislature enacted the statute and it was signed by the governor," Sen. Ennis said.

He added that if there isn’t a process to find out what the legislative intent was, the courts should enact one.

Since the Supreme Court issued its order to the Halls’ attorneys, Sen. Ennis has asked the Senate attorneys that helped draft the legislation to review the case to see if they have any suggestions on how to move forward.

Since the case is still pending, court officials would not talk about the issue.

Like the U.S. Supreme Court that interprets the Constitution of the United States of America, the Delaware Supreme Court also interprets the laws of the First State.

Mr. Hall said the appeals process has cost him and Nathaniel’s mother about $12,000. Mr. and Ms. Hall are not wealthy people.

They recently learned of a medical procedure that could potentially help their son, but it costs about $10,000, Mr. Hall said. They can’t afford it now because they’ve spent their money on the legal battle.

The Halls will return to court in October to hear the Supreme Court’s ruling.

"If we were a corporation in Delaware we would have justice now. But if you are a handicapped child and you need help, they don’t care," Mr. Hall said.

By Logan B. Anderson

DOVER — The House Judiciary Committee voted Wednesday to release a measure its sponsor has dubbed the Nathaniel Hall Bill.

The legislation, Senate Substitute 1 for Senate Bill 171, sponsored by Sen. Bruce C. Ennis, D-Smyrna, would create provisions to correct certain instances of paternity fraud.

The bill received approval from the state Senate on April 1. With the committee’s action, it now heads to the House for debate.

"Nathaniel is a 9-year-old boy that can’t get the medical attention that he needs because the biological father will not cooperate and provide the medical information needed from the father," Sen. Ennis said when the measure passed the Senate.

If enacted, the legislation would create a method in which a person can contest allegations or presumptions of biological parentage under certain circumstances.

"This bill is not about child support; it is about the best interest of the child," Sen. Ennis said Wednesday.

Paternity fraud is what occurs when a mother wrongly identifies a man as the father of her child, as was the case with Nathaniel’s parents.

When a man is named the father of a child, under the Delaware Uniform Parentage Act, that declaration of paternity can only be challenged within a two-year period.

Nathanial’s legal father, Roger Hall, has been working to bring the issue of paternity fraud to light, not just for him, but for the son he thought was his.

Though the child is not his biological son, Delaware courts still maintain that he is.

Mr. Hall discovered to his surprise that Nathaniel was not his biological offspring about three years ago. When he confronted his then ex-wife, Jennifer, she told him the truth. The former couple talked about what they should do, not solely for Mr. Hall’s benefit but for their son’s.

Nathaniel is disabled, and knowing his true genetic medical history could aid doctors in his treatment.

"He is autistic and can’t tell you how he feels. He can’t speak — that is why having his full genetic information is so important," Mr. Hall said.

The Halls petitioned Family Court to have Mr. Hall’s paternity repealed so the court could then compel Nathaniel’s biological father to release his medical history to help in their son’s treatment.

Because of the two-year statute of limitations for paternity in Delaware law, their petition was denied.

"We are very pleased that the bill is going to move forward so we can help him," Mr. Hall said.

Nathaniel’s family is eager to see this legislation pass. Since the bill made it through the Senate and has been waiting to be heard by the House Judicial Committee, Nathaniel has had additional medical problems.

"He had to go to the hospital and they had to prescribe antibiotics for him," Mr. Hall said. "He’s never had antibiotics. If there is a family allergy it could kill him. We don’t want to roll the dice with him."

Mr. Hall, motivated to action to help Nathaniel and other children that may be in a similar situation, formed the Delaware Citizens Against Paternity Fraud to raise awareness of the issue.

For help, Mr. Hall reached out to the U.S. Citizens Against Paternity Fraud (USCAPF). The organization has been working with state governments across the nation to raise awareness of this issue.

The bill also adds provisions to prevent instances of paternity fraud from occurring in the future. It will require mothers to sign a sworn statement of paternity, under penalty of perjury, when the child is born.

Sen. Ennis said the bill was drafted with help from the Family Court.

The General Assembly’s Family Law Commission unanimously supported the bill at its meeting in March.

"All I know is that Nathaniel needs help and we have to get this moving for him," Mr. Hall said.

Subcommittees to examine DNA, court hours, paternity issues

Delaware State News

DOVER — Though the Delaware General Assembly’s Family Law Commission held its last meeting of the legislative session on Thursday, it won’t stop working.

The commission has three subcommittees to further address issues it dealt with during the year. These smaller teams will continue working during the six-month legislative recess and will report to the full commission at its next meeting later this year.

Since January, the commission has met monthly to discuss many issues relating to Delaware’s Family Court system. The group dove into topics ranging from child custody, paternity fraud, protection from abuse orders (PFAs) and court procedures.

The Family Law Commission’s three subcommittees will each continue working on topics relating to DNA, PFAs and hours of operation of Family Court.

Among other things, each subcommittee has been tasked with researching how other states handle those issues.

"We are hoping we can learn from them," Family Law Commission Chairwoman Lynn M.A. Kokjohn said.

The teams will look at "best practices" used around the country.

Commission member Dr. Harriet Ainbinder cautioned the committee to truly examine those practices.

"If it’s working somewhere else doesn’t mean it will work in Delaware," she said.

Rep. Michael Ramone, R-Middle Run Valley, has been leading some of the subcommittee discussions.

"If these were easy problems to solve we wouldn’t be talking about them," Rep. Ramone said.

One subcommittee formed during the commission’s last meeting will look into the operating procedures of the court itself, specifically the hours it operates.

Rep. Ramone and Ms. Kokjohn reported that the committee had already made some headway on that issue. While it's looking at procedures other states use, it is also looking at other "best practices" other Delaware agencies employ.

Ms. Kokjohn said the court procedure subcommittee may recommend the Family Court make hours adjustments like the Division of Motor Vehicles. Currently, the DMV is open from noon-8 p.m. on Wednesdays to allow more access to its services.

"There are avenues we can take. We can extend hours, but to do something in each county could be problematic," Rep. Ramone said.

"If any change is made, it would be done in phases," Ms. Kokjohn said.

She added that Family Court Administrator Guy Sapp has said he will be a part of the subcommittee.

"We are trying to make it funding-neutral as much as possible," Rep. Ramone said.

The DNA subcommittee will talk about issues of paternity and proving parentage.

During a pervious meeting, the group talked about drafting legislation that could require DNA testing when a child is born.

"No state in the nation uses mandatory DNA testing at birth," Rep. Ramone said.

He added that concerns over cost and civil rights have blocked other states from taking such action.

The PFA subcommittee will review reported abuse of the protection-order system.

The group discussed how Kansas uses a mutual PFA system, where the petitioner is issued a no-contact order with the person they are seeking from protection from. The subcommittee plans to evaluate that process during its meetings in the coming months.

On Jan. 12, the group held its annual public hearing in the state House chamber, where families, parents, grandparents and concerned citizens addressed the commission about Delaware’s Family Court system. In its subsequent meetings, the panel took its direction from that hearing.

Formed nearly 20 years ago, the group’s mandate is to listen to the public’s concerns, research the matters and make recommendations to lawmakers on how to make the process better.

The group can’t make substantive changes to the court on its own or impact the outcome of any case currently before the court.

The 20-member panel is made up of citizens, Family Court representatives and lawmakers.

The commission will convene again in either November or December to hear reports from its subcommittees and prepare for its next public hearing, expected in January.

By Logan B. Anderson

Delaware State News

DOVER — Change that would improve Delaware’s Family Court system is being looked into thanks to a meeting held in Dover on Thursday.

The General Assembly’s Family Law Commission just may have proven its purpose during its regular meeting held at Legislative Hall.

The group was formed nearly 20 years ago to review relevant issues of law as it pertains to Delaware families and the court processes pertaining to them and is charged with making recommendations to lawmakers on how to make the process better.

On Thursday, Chief Family Court Judge Chandlee Johnson Kuhn made her annual appearance before the body. The May meeting was set to discuss policy and procedures of the court.

Judge Kuhn began her presentation by regaling the commission with some of her department’s successes.

Family Court operates resource centers throughout the state to help petitioners and other litigants learn how to navigate through its systems.

In 2009, Judge Kuhn said 60,000 people availed themselves of the centers, and received detailed instructions about divorce, child custody and other issues. She added that the most popular information package supplied by the center is titled "How to prepare for your own court hearing." Judges and lawyers in family court have noticed a difference in how unrepresented litigants prepare for court, which Judge Kuhn equates as a success of the resource centers.

She told the commission of another recent success, where a Delaware mother called the court, frantic because she believed her ex-husband was trying to take their child overseas, away from the mother. Judge Kuhn said she and her staff jumped to quick action and had the father placed on the U.S. State Department’s no-fly list, blocking the man from leaving the country with the child.

When the group got to its May agenda, Family Law Commission Chairwoman Lynn M.A. Kokjohn wanted to get to the issue of court access and its hours of operation.

Mrs. Kokjohn suggested Judge Kuhn look into providing evening hours for her courts.

"I am all for it. I just don’t have the money or the space. There are so many different resources you would need," Judge Kuhn said.

To that Ms. Kokjohn replied, "Why can’t we do something like the (Department of Motor Vehicles), where they have the same amount of hours but on some days they are open later?"

Judge Kuhn suggested a legislative task force could be formed to look into that possibility.

Immediately after the suggestion was made, Family Law Commission members and members of the House of Representatives Michael Ramone, R-Middle Run Valley, and Michael A. Barbieri, D-Newark, stood and made a commitment to form a Legislative Working Committee to investigate how Family Court could adjust its hours to serve more Delawareans.

"Done," Rep. Barbieri said as he and Rep. Ramone agreed to the bipartisan effort.

Judge Kuhn said the committee may find difficulties when they look into the New Castle County facility as Family Court shares the building with many other agencies and courts. She asked the representatives to start in Kent and Sussex counties, as her court is the only occupant of each county’s building.

Rep. Barbieri and Rep. Ramone said they would report back to the Family Law Commission at its next meeting.

The commission will gather again in June to review the issues its heard this legislative session, along with the new Family Court hours working committee findings. The group is expected to review potential bills in both legislative chambers and could lend its support for some.

Dover man has worked for years to bring issue to light

Protection-from-abuse orders topic at first meeting

Delaware State News

DOVER — The Family Law Commission was formed by the General Assembly nearly 20 years ago to review law and court issues pertaining to Delaware families and make recommendations to lawmakers on how to make the process better.

On Jan. 12 the group held its annual public hearing in the House of Representatives chamber, with families, parents, grandparents and concerned citizens addressing the commission.

The commission made up of citizens, Family Court representatives and lawmakers heard concerns regarding child custody, child support, false allegations, protection-from-abuse orders, Family Court commissioners and paternity fraud. The 20-member panel pledged to review the concerns raised during the hearing and make recommendations to the General Assembly.

The group, led by Chair Lynn M. A. Kokjohn, met Thursday to talk about what they learned last month.

"I want to make these working sessions make some changes, make some differences," Mrs. Kokjohn said at the start of Thursday’s meeting.

The group plans to break down each issue during its monthly sessions — this month’s topic was protection-from-abuse orders.

In an effort to learn more about PFAs, the commission invited former Family Court commissioner and current Dover City Councilman James G. McGiffin as its guest speaker.

"The PFA was developed to protect from classic domestic violence situations," Mr. McGiffin explained.

He described the classic domestic violence situation as one of repeated abuse where one partner has control over the other. The PFA is designed to break that cycle.

PFAs, as described in Delaware law now, were instituted in 1994, one month before Mr. McGiffin was appointed as a Family Court commissioner.

During January’s public hearing, the commission heard many complaints about Delaware’s PFA regulations, including allegations of perjury, lack of punishment for filing a false order claim and misuse of the system.

Mr. McGiffin explained a true PFA is issued after a trial in front of a Family Court commissioner. Both parties appear before the commissioner, and if granted, the order is enforceable for one year.

"The vast majority of PFAs out there are product of the consent process," he said.

The consent process involves a Family Court mediator, the go-between for the parties involved. If the petitioner asks for the order, the mediator works out the terms and conditions. If both parties agree, the PFA is issued without going before the commissioner. If the terms cannot be met, a trial is ordered.

Many of the complaints heard by the commission at its public hearing came from emergency, or ex-parte, PFAs.

These are issued by the court if the person the order is against cannot be reached or is in extreme circumstances.

The ex-parte PFA is only good for 10 days. During those 10 days the person the order is against can’t have contact with the petitioner. If he or she does they can be charged with a crime. After 10 days the order is lifted.

A main concern addressed last month, Mrs. Kokjohn said, was instances where an ex-parte order was issued and the petitioner used those 10 day to remove, sell or destroy the other person’s belongings, leave the area or attempt to stop the other person from seeing their children.

"Is it the case that people lie in Family Court? Do people lie when a police officer stops them and asks, ‘Do you know how fast you were going,'" Mr. McGiffin said. "It probably does happen."

He added the trial is the best place to determine truth.

"It certainly is an imperfect process," he said, adding, "The theory is that it is going to save some people from potential fatalities."

"We are all bound by the system we work in — we are just the messenger," said Bill Walls, Family Court judge and Family Law commission member. "We need to figure out a better way of doing things and work in concert with our legislators."

After hearing from Mr. McGiffin, the commission discussed making a recommendation to lawmakers to add a temporary property injunction, similar to the injunction given at the beginning of divorce proceedings, where the petitioner cannot move, sell or destroy the other person’s belongings during the ex-parte PFA order.

The commission will meet again on March 18 in Legislative Hall to discuss issues of paternity tests, child custody and custody evaluations.