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Fighting a 16th-century presumption of paternity

Sunday, February 21, 1999

By Marylynne Pitz, Post-Gazette Staff Writer

When his wife gave birth in 1987, Gerald A. Miscovich never gave the boy's brown eyes a second thought.

Mary Ann Uivary and Gerald Miscovich at their Douglasville home. (Brad C. Bower) 

After Miscovich and his wife divorced, a nurse to whom he was engaged revealed the hard genetic truth. Miscovich and his former wife both have blue eyes, so their child's eyes could not be brown. Someone else had to be the boy's biological father.

DNA tests later confirmed what Miscovich's fiancee told him.

"I felt betrayed," said the computer programmer who grew up in Westmoreland County and now lives in Douglassville, Berks County. He couldn't sleep. He couldn't eat. He lost 30 pounds.

He soon got another shock. Miscovich tried to challenge the monthly child support of $537 that a judge had ordered him to pay by introducing the DNA evidence in court.

He was turned down flat.

Under Pennsylvania law, a child born to a married couple is presumed to be that couple's child. Paternity can be challenged only if the man can show he is sterile, impotent or was nowhere near his wife when she conceived.

A married or divorced man cannot introduce DNA evidence unless one of those scenarios can be proven.

Rooted in 16th-century English common law, this presumption of paternity is designed to keep families intact and protect children from the stigma of illegitimacy.

Today, it also ensures that any man who impregnates a married woman can avoid the responsibility of supporting his child, said Miscovich and his fiancee, Mary Ann Uivary.

A double standard exists because state law allows an unwed mother to use blood and DNA testing to pin the paternity badge on a man. Miscovich's fiancee believes divorced or married men should have that same right.

"Our justice system is based on the truth," Uivary said. "Here, we're being asked to base our lives on lies. I don't think that's right. It really is injustice."

In a tie vote in December, Miscovich's appeal was turned down by the Pennsylvania Supreme Court. Dissenting justices in a similar 1997 case made the same point as Miscovich: If science can help prove paternity, why not allow it?

Now 36, Miscovich is fighting to change the law on two fronts.

Next month, he and his attorney, Neil Hurowitz, will ask the U.S. Supreme Court to hear his case on the basis that he has been deprived of income without so much as a hearing on the issue of paternity. That, Miscovich claims, is a denial of due process guaranteed by the U.S. Constitution.

Two legislators familiar with his case and others like it plan to introduce legislation to change Pennsylvania's law.

Neither Miscovich's former wife, Elizabeth Miscovich, who has remarried, nor her attorney, Lisa A. Waldman, responded to requests for interviews.

"I cannot get on with my life," said Miscovich, who has fought what he considers an unjust law for 71/2 years.

So far, child support and legal fees total more than $100,000, he said.

Paying the price

The emotional cost has been exorbitant, too.

Uivary, 42, agonized for weeks before telling Miscovich about her suspicions that someone else fathered the boy he thought was his son. She finally did on Christmas Eve of 1991. By that time, the couple was engaged and had made detailed wedding plans.

To make sure Uivary was right, Miscovich arranged for DNA tests on his blood and the boy's. The results of the tests excluded Miscovich as the father.

How do you explain something like that to a 4-year-old? Not easily, Miscovich said.

"He had a little puzzled look on his face," Miscovich said. "He said, 'Who's going to be my daddy?' I said, 'Well, we'll have to talk to your mom about that.' "

That was the last time Miscovich saw the child, who is now 11.

The law gave him little other choice, he said.

Men who know a child is not theirs but still behave like a father cannot later deny paternity, state law says.

As hard-hearted as it may seem, Miscovich stood on principle.

"The decision to actually break the tie with the child - that was an easy decision. That was based on fact. Once I had the knowledge that I wasn't his father, I knew I couldn't be his father," Miscovich said.

He and Uivary made a special trip to Greensburg to break the news to his parents. To this day, Miscovich said, some of his friends are unaware of his legal battle.

Miscovich received an annulment from the Catholic church after showing the DNA test results to a tribunal.

"They about fell on the floor," Miscovich said. "They saw that the marriage was destroyed."

A short-lived marriage

Miscovich and Elizabeth Oplinger Miscovich were married July 26, 1986, and she became pregnant in March the next year.

The couple used birth control and had not planned to have a child immediately, according to Miscovich.

"I did question it," he said "She said, 'Well, we must have had an accident.' "

The child was born Dec. 28, 1987. In October 1989, Miscovich arrived home from work to find that his wife had left him.

"Everything in the townhouse was gone," he said. "I had to borrow a pillow and blanket from my boss."

When the couple divorced Dec. 11, 1990, the boy was 3 years old.

Miscovich said he became a weekend father and supported the boy through an agreement he reached with his ex-wife.

A year after the divorce, Miscovich learned the truth when Uivary reviewed her old biology textbooks and did research in the library on genetics. Before Uivary talked to Miscovich, she consulted a psychologist about how to broach the subject with her fiancÚ.

Soon after receiving the DNA test results, Miscovich stopped paying child support in March 1992.

In February 1994, Elizabeth Miscovich sued a Montgomery County man for child support. Blood test results returned in May 1994 indicated that that man was not the father, either, court records show.

A year later, in May 1995, Elizabeth Miscovich sued her ex-husband for support, insisting that he was the father. At the time, Elizabeth Miscovich was on public assistance and pursuing a post-secondary degree, according to court records.

A Berks County Common Pleas judge ordered Gerald Miscovich to pay $537 a month in child support. He was not allowed to introduce DNA evidence showing that he could not be the boy's father. His salary has been garnisheed since.

George S. Stern, president of the American Academy of Matrimonial Lawyers and a lawyer from Atlanta, said that under the circumstances, Elizabeth Miscovich had no choice but to sue her ex-husband for support.

But, Stern added, "If he isn't the father, and the evidence is as good as it gets, then that evidence should be allowed in."

H. Joseph Gitlin, a divorce lawyer from Woodstock, Ill., said a majority of states allowed the admission of DNA test results in such cases.

"Pennsylvania has always been regressive as far as family law goes," Gitlin said.

Elizabeth Miscovich remarried in August.

In the minority

A vocal minority of Pennsylvania's seven Supreme Court justices favors the admission of DNA blood tests when a married or divorced man challenges paternity of his wife's child.

Justice Russell M. Nigro wrote in a 1997 paternity case that blood tests should be used to identify a biological father or to show that a man could not be a child's father.

Such tests, Nigro wrote, "would also work to eliminate situations where a man is deceived into believing he is the father."

In that same case, Justice Sandra Schultz Newman wrote that, "Pennsylvania's approach to establishing paternity is clearly outdated."

Newman said Pennsylvania was among a minority of states that do not accept blood test results in such cases while two-thirds of the states do.

"We should join the majority of states and accept these reliable scientific tests to rebut the presumption that a child born to a married woman is her husband's child," Newman wrote.

She said that when a child's biological parents were known, a child could more easily discover inherited medical conditions that can be successfully treated if caught early.

Such knowledge [of a child's biological parent] also allows for "placement of moral and economic responsibility," Newman wrote.

A majority of the court disagreed with Nigro and Newman and voted 4-3 to uphold the state law.

Stewart Barmen, a Pittsburgh lawyer, agrees with Newman and Nigro and notes the contradiction in the state law.

"The reason for the presumption [of paternity in state law] is you want to keep a family intact," he said. "Once you're separated and divorced, they are no longer an intact family."

The state Legislature also has a chance to change the law.

State Rep. Rod Wilt, R-Greenville, Mercer County, introduced legislation this month that would allow blood and DNA testing to be used to establish paternity in cases such as Miscovich's.

Wilt said he knew of a dozen other men who are in the same predicament.

"I think every kid needs a dad," he said. "It takes two responsible people to make a child. Under our current system of law, we're exonerating one of the responsible parties from any responsibility. The person who impregnated the woman is never called to the witness stand, never required to assume any responsibility for his actions."

Wilt believes the law encourages irresponsible behavior.

"Look at the message you're sending to that guy in the bar who is preying on married women," he said.

"He can ruin this woman's life and walk away from her and the whole situation."

Dennis Leh, R-Berks County, is co-sponsoring Wilt's bill but is aware that the new law could be abused.

"I don't think you want to open up the floodgates for divorced fathers and estranged husbands to go back and try to absolve themselves of financial responsibility," Leh said.

Yet the law also would ensure that someone such as Miscovich would find fair treatment in court, Leh said.

Gerald Miscovich said he would like to have acted as a big brother to the boy and continued a relationship with him.

The law, he said, left him no choice but to cut all ties.

Miscovich said he favored laws that are tough on dads who don't pay child support because he believes in being responsible.

"But if I'm not the dad, I'm not the dad and no law can make me a father," Miscovich said.

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