Lack of Biological Paternity is Not a Valid Defense to Criminal Nonsupport


If you have been criminally charged with failing to provide child support, don't expect to claim that the child isn't yours. In a recent case, the Missouri Court of Appeals has reaffirmed the conviction of an individual for failure to provide child support even though he was not the biological father of a child.

After the birth of the child, the mother told the defendant that he was the father since she did not have sexual relations with anyone else. Shortly after their separation, the mother filed a petition with the court seeking to have the defendant named as the father, along with a request for child support. Believing the mother's claim, the defendant did not challenge the paternity claim. The court found him to be the father and ordered him to pay child support.

Later, upon learning from the mother that he may not the father, the defendant requested a DNA test. The test conclusively determined that the defendant could not be the biological father and, as a result, the defendant stopped paying child support.

The State prosecuted the defendant for Criminal Nonsupport and the defendant attempted to introduce the DNA test as evidence in his defense. Although the trial court did not allow the evidence, the mother testified that she lied to the defendant about his being the father. The trial judge found that the defendant was not the father and that he had been deceived, but found him guilty of the Criminal Nonsupport felony.

The court of appeals upheld the conviction finding that the result was mandated by an earlier decision of the Missouri Supreme Court. The court noted that in a prosecution for Criminal Nonsupport, the State only has the burden of proving that the child was legitimated by legal process, and not that the defendant was the biological father of the child.

While the appellate decision is certainly unfair, it is a result of the statutory definition of "child." In the Criminal Nonsupport statute, "child" is broadly defined as a biological child, adopted child, a child whose paternity was established under certain provisions of state law, or a child who was determined by a court to be the child of someone in a divorce or separation proceeding.

The Whiteley Law Firm is familiar with the Criminal Nonsupport statute and knows the proper defenses to raise in order to aggressively defend those accused of failing to provide adequate child support. If you have been charged with Criminal Nonsupport and believe you are not the father of the child, contact our Nonsupport attorney today to discuss your case as Missouri law permits an expungement of a conviction in those cases.

The case is State v. Buckler, Cause No. WD72794 (Mo. Ct. App. filed October 18, 2011)