Toves hoping to get job, life back together
By Valerie Lynn M. MaiguePacific Daily News
vmmaigue@guampdn.com
James Cruz Toves, a former Department of Public Works bus driver accused of rape, is hoping that he can get his job and his life back together after his attorney filed a motion to dismiss the criminal case against him.

"He's hoping that DPW will move quickly to reinstate him immediately and provide all the back pay that they owe him," said Attorney Mike Phillips, who is representing Toves. "He wants to move on with his family and hopes the attorney general's office takes steps to ensure this does not happen to another innocent person."

Fighting the jacket

ASK RBMonday, August 21, 2006

Dear RB,
Someone I love has been ordered by the court to pay child support for a child whom he does not believe he fathered. He and the baby's mother were living together as a couple and he came home one day and caught her in bed with another man.She also had a relationship with his cousin to whom the baby bears a striking resemblance. She does not want to take a paternity test and I believe that is because she knows the baby is not his. He signed the birth certificate and is more than willing to take care of the child if it is his biological child.- Fighting the Jacket

Unfortunately, paternity laws are seen by some to be flawed. It is claimed that when men are lied to about contraception (or even raped), certain paternity laws give them no defense.

Paternity is the social and legal acceptance linking a father to his child and a child to its father.

A child born to the wife during a marriage is presumed to be the husband's child, as determined by common law. This concept is the "presumption of lawful paternity", and gives to the husband complete rights, duties and responsibility as to the child, in spite of whether he is the true parent or not.

However, the presumption can be refuted by evidence to the contrary. At least before a court issues an official settlement of paternity in the husband's favor, or a duty of support is established by a decree of divorce or legal separation.

Jurisdictions differ extensively on whether, when, and under what circumstances a ruling determining paternity or a support commitment founded on the presumption, can be set aside on the basis that the husband was not in fact the natural father.

In the case of an un-married mother a man may come to the fore and accept the paternity of the child, the mother may appeal to the court for a determination if she can identify the likely candidate(s), or paternity can be determined by estoppel over time.

Where paternity of the child is uncertain, any person with an interest can ask the court to decide paternity, of one or several possible fathers (called putative father) initially based upon sworn statements and then upon testimony, including but not limited to:

Lack of access to the mother by the putative father during the same time period

Sexual associations by the mother with a man other than the putative father, with a description of the conditions of the child's conception

Scientific proof (blood group, HLA marker, DNA testing, etc.) showing the probability of the putative father being genetically related

Other admissible proof that may tend to ascertain paternity such as testimonial against interest made by the putative father


Generally, hospital records and a birth certificate are not adequate to offset this supposition of lawful paternity. A successful application to the court results in an Order of Filiation, and transferring paternity to a particular man. The true biological father must now support the child and may also, generally speaking, have access to the child.

In a marriage where the natural father is unknown, or without financial means, the court may find the husband responsible for supporting the child. In some jurisdictions the courts have also stated the man who acts as the child's father to be the father through the equitable process of an estoppel. Once the child has been affirmed to be a son or daughter and has lived with the man for a period of time, the court may cloak the putative father with all of the responsibility of parenthood letting the biological father, "off the hook" so to speak.

In calculating the date of conception, one should remember that the duration of a human pregnancy period is roughly 9 months, less 7-11 days.

A child born to the husband and wife before marriage usually becomes a child of the marriage when the marriage is completed. This was the old rule from canon law (the law of Roman Catholic and Anglican churches), but at common law retroactive legitimacy was not bestowed on a child by the marriage of the parents after the child was conceived; a matter of some importance when birthright was at issue. The different rules have largely been abrogated in the United States by a series of judicial rulings or legislation curtailing or minimising the disabilities of illegitimacy.

Unfortunately, paternity laws are seen by some to have flaws. It is claimed that when men are lied to about contraception (or even raped), certain paternity laws give men no defense.

Advocates of paternity law change, such as the US National Center for Men, have a "Voluntary Fatherhood" scheme, which points out that these laws discriminate against men and correspond with an increase in out of wedlock births.

Some paternity laws are claimed to also make men support children that they were duped into thinking were theirs.

Many people have been duped into paying for DNA testing where results are incorrect or in some cases no results have been given. Many low priced companies lack knowledge and experience and are more interested in making a sale than giving good advice.

A number of people have had DNA tests carried out by companies and have not been confident of the test results. Points of inaccuracy being: wrong laboratory number, wrong name or wrong gender of persons concerned. Errors range from a mix up of specimens to an incorrect calculation of laboratory results.

Incorrect advice

The vast majority of "Low Price Companies" tend to be lacking in knowledge and experience, they offer the client one, or possibly two types of test and would like to make a sale regardless of the tests suitability. The results often mean opinions being issued that are at best not helpful and at worst useless, because the test was not suitable for the application.

No results despite payment

People have experienced this with certain test providers around the world. These companies will charge approx £150 for a paternity test. The client will phone for the results, but is instead, given one excuse after another as to why the results are not available, they then give up trying. The payment was irretrievable because it was not worth litigating for £150.

Poor customer service

It has been known with some companies, after placing the order for a low-price-test, that the client has had to wait 2 to 4 weeks for the test set to arrive, if at all! The test guidelines are so inadequate that the client has to make enquiries over the phone (if an advisory service is offered). Unfortunately this service is often carried out by an unqualified employee who has had little medical or biological training. E-Mails, if answered, take up to a week to be replied to.

THEREFORE!...

Choose a proven laboratory at the outset. A company that offers a reliable transaction process and a result that is accurate. Research the company prior to going ahead with a test and look for customer testimonials which will enable you to make an informed choice. Check if they do any work for major organizations such as the police or government. Finally, check that the company is DCA (Department of Constitutional Affairs) accredited. If not, the results would not be valid in a court action.

DNA is passed on by your parents and is responsible for your individuality. Each of us is made up of 23 pairs of chromosomes. We are the result of combination of a single egg and a single sperm cell....these cells go through a dividing process changing from 23 chromosomal pairs to 23 chromosomes.


DNA (deoxyribonucleic Acid) is the genetic material that makes us who we are

Your personality, your habits, your features, your likes, your dislikes etc. are all determined by your genetic blueprint. It is found in almost every cell of your body and it controls everything that you do and everything that you are.

DNA is passed on from your parents. It is responsible for your individuality and also keeps you connected to your biological family.

How does that happen? How can you share family traits and not be identical to them? The answer is in how you came to be.

Each of us is made up of 23 pairs of chromosomes. We are the result of the fusion of a single egg cell and a single sperm cell. When the body creates egg or sperm cells, these cells go through a dividing process that takes them from 23 chromosomal pairs to just 23 chromosomes (one of each). An egg cell has 1 copy of chromosome 1, 1 copy of chromosome 2 and one copy of each chromosome right up to 23. This is not enough to create a human. It is not until the egg is fertilized with a sperm cell that a human embryo is formed. The sperm cell brings with it, it's own copy of each of the 23 chromosomes. Once fertilized, the egg cell contains everything that it needs to create a new human being.

This means that exactly half of our DNA comes from our mother and half from our father. It is this, that allows paternity testing to be possible.

A laboratory will look at 16 specific areas of each individual DNA sample. These areas are called loci (locus- singular). Since we all have 2 copies of each chromosome, the lab will have two readings for each locus tested. The reading is in the form of a number.

The numbers of the DNA loci are compared once testing is completed. For an individual’s locus, one number must match one of the mother's numbers for that locus. The child's other number will match the biological father's.

A paternity index is then calculated. The paternity index is a calculation of how often that match occurs in a particular race population. It is the likelihood that the tested man is the biological father of the tested child based on that locus. But 1 locus is not enough to conclusively determine paternity. That is why 16 different loci are tested.

Each locus has its own paternity index. If all the loci match, the paternity index for each is combined and a probability of paternity is calculated. The probability of paternity is the final percentage calculated.
If the tested man does not match the tested child on a locus, the paternity index is zero for that locus. If there are 4 or more non-matches the probability of paternity is 0%.

When a paternity action identifies the putative father (“putative” meaning “generally regarded as”) as a defendant, he has the choice of either agreeing to the entry of a paternity decision, or of challenging it stating that he is not the father, or asking for DNA tests to be carried out to verify his paternity.

It is not unusual for legal representatives to be employed by men who have been issued with notice that they are the subjects of paternity proceedings. It is also not unusual for a man to contact his lawyer to enquire how he can establish the right of access to his children, born out of marriage. At times, it will be necessary to ascertain paternity for other reasons, such as obtaining government benefits after the death of a child's father.

 

Contested Paternity Actions

Disputed paternity proceedings come about either as private actions, or are brought by the state. A private action for paternity is usually meant first and foremost to secure maintenance payments from the father, or parenting time with the child. The state will usually initiate a paternity action through a prosecutor's office where the mother applies for state assistance, so the state may gain full or partial recompense of any grant of aid from the child's father. A person cautiously identified as the child's father in paternity proceedings is referred to as the "putative father" pending the ruling of the case. When a paternity action names the putative father as a defendant, he has the choice of either agreeing to the entry of a paternity decision, or of contesting it stating that he is not the father, or requesting that DNA tests be carried out to verify his paternity. Paternity testing is now usually performed during a DNA test based upon a saliva swab, and it is not normally necessary to take a blood sample. If the putative father disagrees with the result of a court-ordered test, he has the right to find and initiate an independent paternity test.

If a paternity action names the mother as defendant, she faces the same important choices as the father. She may either agree to have the putative father named as the child's legal father, or may call for paternity testing to confirm that he is the father.

Non-Contested Paternity Actions

Some men are certain that they are the natural father of a child, or want to sustain a legal association with the child whether or not they are the father and thus either begin a paternity action or agree to the entry of a paternity order. Once such an order is entered, it permits the father to visitation time with the child, and creates a legal duty for the father to pay child support.
Please note: when you agree to the entry of a paternity order, you consent for life. Most jurisdictions will not permit you to get away from the consequences of that order, including the obligation that you pay child support, even if you can later prove that you are not the child's biological father.

If there is any chance that you will dislike the child, or wish to sever your relationship to the child, if you eventually learn that you are not the child's natural father, then you should get a DNA test before acknowledging that you are the child's father. Some studies propose a non paternity rate for children born inside marriage of 20% or more. Outside of marriage, you have even fewer guarantees. If you agree to being named as the child's father, be sure that you are willing to live up to that designation regardless of what you may later learn.

Establishing Paternity When the Father is Deceased

In the event that a child is born out of marriage, and the father is not documented on the child's birth certificate, it may be necessary to establish paternity following the death of a father by court order, or through a legally binding acknowledgement of paternity. Even if the father provided for the child in life, and had a relationship with the child, a government agency may need definite proof of parentage before extending survivor's benefits to the child. If there is no provision for the child in the father's will, it may be necessary to establish paternity in order to obtain a share of the father's estate for the child as an heir accidentally excluded from a will, often because the heir was born after the will was drafted.

In some cases, the father's DNA may be available, perhaps from a preserved tissue sample. If the father's DNA is not obtainable, it may be possible to match up the child's DNA to other close relations of the father, such as grandparents or perhaps the father's other children. DNA testing of close relatives can ascertain paternity with a high degree of probability, and will almost certainly satisfy the needs of any court.

Innovations in genetics or DNA testing are making it easier for people to find out about inherited illness or paternity (who the father of a child is). Although the procedures are very simple, usually just a blood sample or a saliva swab, there can be huge emotional turmoil as a result of paternity testing.

Before going ahead with a paternity test, it's very important that you consider how you will feel if the result isn't what you want or expect. The outcome can be devastating for the child involved and for the entire family. You might want to consider counseling first. This will help you decide if paternity testing is the right thing for you and your family. It can also help you choose how and when to talk to your child about what is happening.

It's important to remember that a child who looks different, or has different health issues, to its brothers and sisters, doesn't mean that you should question who the father is. Differences like these can be quite normal.

What can the test show?

Often conventional blood testing will provide enough information to determine if a man is the child's true father or that there is a high probability he is not the father of the child. If the routine tests do not provide an answer a DNA test can prove whether or not there is a biological relationship.

The test will:

Prove 100 per cent that an alleged parent is not a parent of the child; or

Show a 99.99% probability that they are a parent of the child.

A parent of a child in the UK can apply to the CSA (Child Support Agency) for the assessment and collection of child maintenance. If the alleged father denies paternity, the CSA could take action to determine if he is the biological father of that child, which may involve undergoing a DNA test.

Private tests

By applying for a test privately, your GP will be able to arrange the blood test. Information on DNA testing clinics is available from court offices. Your GP may also have information about DNA testers who do private tests. Anybody having a test carried out privately will have to pay the fees, unless the client is involved in court proceedings and is receiving legal aid.

Court directed tests

If a court determines a test is necessary, the parents will usually have to pay the cost of the blood tests. Details of testers and their fees are held by the clerk of the court. The CAB (Citizens Advice Bureau) states that there is no maximum fee for a DNA test but it is likely to be approx £150 per person. It would be advisable to check the fees for the test in advance.

The British government issued a code of practice for paternity testing services in 2001. Companies must now also be accredited by the Department of Constitutional Affairs for genetic paternity testing. If the company does not have this accreditation, the results of their tests will not be valid in court.
This article is based on information from the National Association of Citizens Advice Bureaux.

DNA is passed on by your parents and is responsible for your individuality. Each of us is made up of 23 pairs of chromosomes.

We are the result of combination of a single egg and a single sperm cell... these cells go through a dividing process changing from 23 chromosomal pairs to 23 chromosomes.

Are you aware that it is possible for someone to obtain your DNA blueprint without your consent or knowledge according to the department of health?

Members of the Human Genetics Commission have called for a change in the law, making secret DNA testing a criminal offence. A significant number of paternity tests are carried out in the UK each year. According to experts, the figure may be as high as 10,000.

The Department of Health published guidelines aimed at ensuring UK-based clinics work within a clear ethical framework. However, the code is voluntary and there are growing concerns that stronger measures are needed.

The Human Genetics Commission called for a change in the law in its first report. Its members want secret DNA testing to be made a criminal offence. Unofficial figures suggest that as many as one in ten paternity tests are carried out on children without the consent or knowledge of one or more parents and usually the mother.



Internet clinics

Few UK-based clinics offer such a service, but there are some concerns with the fact that paternity testing is offered by overseas companies across the Internet.

The commission's report, (‘Inside Information’), states: "We are broadly happy with the regulation of UK paternity testing companies which abide by a government code of practice. But more and more people are making use of overseas companies which advertise on the Internet."

In preventing DNA testing and genetic information from being used in "malicious or deceitful ways", its members believe that a new law would go a long way.

Professor of family sciences at Cambridge University and a member of the commission, Martin Richards, said the concerns were legitimate. "The evidence, at the moment, is if covert testing occurs it is on a very limited scale but there is evidence that it may become more common."
He added: "In the UK, we have guidelines and as far as anyone knows they are adhered to. However, if you go onto the web it wouldn't take more than a few minutes to find sites that advertise the fact that they do not require consent to carry out DNA testing. I think there is reason to think there are already cases in the paternity testing field where people have covertly tested and sometimes with results that are very upsetting to those involved."

The problem is that DNA results can be acquired easily. Normal practice is to carry out tests on a blood sample or a saliva swab, but it is possible to obtain results from a single strand of hair or a used fork or cup.
A clinic in Australia offering paternity testing to people living in the UK, over the Internet, says it can provide accurate results after being sent a single strand of hair.
A spokeswoman for the clinic said since the service was first offered to residents in the UK, approx two years ago, demand has been "quite high". She added that the company encouraged potential customers to act openly and honestly. "We tend to veer them in that direction. We certainly do not suggest they should sneak around," she said.

Medical tests

Dr Paul Debenham, life sciences director at UK-clinic LGC, said its customers were required to be tested by registered doctors only.

Dr Debenham said approx one in 10 callers to the company enquired about covert testing. He added that LGC would encourage a change in the law to prohibit this practice.

"We don't accept that case work at all," he said. "It would make life a lot easier if we could just refer to the legal framework."

LGC carried out paternity tests on behalf of the now discontinued CSA (Child Support Agency). However, a wide variety of people use its services, according to Dr Debenham.

He said: "There is a growing demand from a broad range of people, including those involved in inheritance issues, siblings trying to establish whether they have the same father, and people who have been adopted and are trying to identify their parents. There has also been tremendous growth in people wanting to know about their roots and there is, of course, an increasing importance of genetics in terms of medical traits and health."



Legal plans

Plans to make covert testing illegal would put the UK ahead of other countries. Although European and North American governments are considering similar moves, none has legislation in place. "No country has a fully worked out system that is up and running," Prof. Richards said. "This has to be a leap in the dark because no one has ever done it."
He added: "All you can do is make it an offence and hope it will be a deterrent."

Criminalizing covert DNA testing could make a difference, said Dr Debenham. "It is impractical to see how the UK can monitor or police internet services. But it does mean that if you ever tried to present the results of a DNA test that was carried out covertly you would be admitting to a criminal offence. You would also not be able to use those results and would at the very least be doubling your costs. While it may not stop covert tests it may force people to think twice before doing it."

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