Daddy Dearest

Can the courts order a wronged father to keep quiet? David Ziskind doesn't think so.

Ziskind talks about the discovery like a beaten man. He says he was not outraged, nor did he collapse in despair or even cry. He just became coolly resolved to act. "After the separation and the limited access I had to my own kids, nothing shocked me," he says. "This was just one more piece of crap."

So Ziskind decided on a course of action sure to horrify any parent. In 1998 he asked the court to reduce his child-support payment because he was not Amy's father. In effect he disowned a child he had raised as his own.

The decision wasn't as complicated as it might seem, Ziskind says. He had lived with Amy for just a year and a half before the split. Following the breakup he claims to have met with her fewer than twenty times. "Maybe if we were still married, I would have carried on," he says. "But I really didn't know her. There are a lot of people who would figure that since I'm not the father, why should I pay to support her? On the other hand, she's a really nice, sweet kid and I'm saying I don't want to support her because she's not biologically mine. I understand why people would criticize me for that.

"I also understand I have no relationship with her. It's not her fault. It was engineered by her mother to be that way."

Ziskind describes the testing of his daughters' DNA as so simple and quick that it required no explanation to the girls. Yet the information he collected was so powerful it changed all of their lives.

DNA testing is having a similar effect across the country. When men discover they are not fathers, the courts are left to decide what defines fatherhood: biology or social construct.

Until the late 1990s, the law regarding paternity disputes was designed to maintain the family unit. Thus if a child was born in wedlock, the court recognized both spouses as parents. Such presumption of paternity and maternity was meant to protect the child, especially if a parent-child bond developed before the discovery of illegitimacy.

But now some fathers' groups are arguing that science should sort out our increasingly tangled concepts of family. In Florida two earlier cases have tested that notion.

In 1997 the Florida Supreme Court upheld a precedent-setting appeals court ruling known as Daniel v. Daniel. In that St. Petersburg divorce case, Michael Daniel argued that he shouldn't have to pay to support his youngest child. The youngster was born three months into his marriage with Tara Daniel. Both parents conceded he was not the father.

But the local court found in favor of Tara. The judge reasoned Michael Daniel was better able to provide financial support than the biological father. Thus it was in the child's best interest that Daniel remain the legal father. The Second District Court of Appeal overturned the ruling, stating that "a husband, like Michael Daniel, who is not the natural or adoptive parent of a child and has not otherwise contracted for the child's care and support, has no duty to pay child support upon the dissolution of the marriage."

The Daniel ruling seemingly contradicted a 1993 state supreme court ruling, Department of Health and Rehabilitative Services v. Privette. In that decision the justices rejected a lower court's order that William Privette of Sarasota County take a blood test to determine paternity. The child had a father figure, the court reasoned. It was not in the child's interest to question that arrangement.

Ziskind's case falls squarely in the middle, says Rana Holz, a Fort Myers attorney. Holz is a member of the Florida Bar's legislative committee on family law. "If properly argued, this could go right up to the [state] supreme court," She recently coauthored an article for the Florida Bar Journal on gaps in paternity law. "The problem is we have three competing interests: the child, the mother, and the father. Right now our laws don't protect any of the parties clearly.

"The lines that are being drawn are not consistent. If a father wants to step out of his role as a parent because there's no genetic tie, he's allowed to. And if he wants to remain the father with no genetic tie, that's allowed. The father holds all the cards."

Ziskind's attempt to disown Amy resulted in a vigorous exchange of legal motions. After the court rebuffed his effort to cease child support in June 1998, Hart attempted to block his telephone calls and visits to the elder daughters because he refused to contact Amy. In court papers Hart alleged "the other two children ... are highly resentful of their father's attitude ... toward their baby sister."

In August Hart accepted a job at Texas Tech and moved the kids to Lubbock. It's unclear whether she told Ziskind about her planned move: He claims she withheld the information. She contends he agreed Texas would be best for the children.

In any case Ziskind soon tracked down the family. He called Hart's house and left the following message on her machine: "Yes, I'm calling about the Ziskind children. This is David Ziskind, the putative father. Please call me and let me know where they are. Good-bye." Then Nadine Ziskind took the phone: "Hey, Syb, this is Nadine, David's wife. We're trying to find the kids and I'm wondering if you're enjoying your sleep and who you're sleeping with."

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