The woman hobbled across the courtroom, her feet shackled, her wrists handcuffed behind her back. With a marshal at her side, she headed to the “ladies side” to wait for the magistrate in Courtroom 3A to begin weighing her son’s future.
A door on the left side of the courtroom opened, and a small man in prison beige emerged. Escorted by a marshal, the shackled and handcuffed man shuffled to the “guys” side, as a marshal called it, careful not to presume too much.
Tabitha Taylor, 29, and Duane Cruz, 35, appeared before the family support magistrate to determine the fate of a little boy.
It was another in a long line of cases being heard on another “Paternity Thursday” in state Superior Court on Church Street. (Read about the phenomenon here.) But this case, heard this past Thursday, was different from the others. It involved two parents, or possible parents, in chains. And that enabled the court to solve a mystery with a tool officials are hoping they can use more often: DNA testing.
Taylor, a large woman with a hard face and long orange-tinged hair, stood with her shackled legs slightly apart and shifted back and forth. Cruz, nearly half her height and weight, was still.
Both Taylor and Cruz had several criminal convictions. Both were incarcerated. Neither could care for the boy.
The question for Thursday’s hearing, however, was not who would care for the child. Taylor’s parents were doing that to the evident relief of Chief Family Support Magistrate Sandra Sosnoff Baird who was hearing the case.
The question before the court: Is Duane Cruz the boy’s father?
A juvenile court considering the child’s custody had ordered a paternity test for Cruz. It established to a 99.9999 percent certainty that Cruz was not the child’s biological father.
That made Magistrate Sosnoff Baird’s task easy after the results were introduced.
“Duane Cruz is not the father of [the boy],” she declared in entering an “exclusion,” a finding of non-paternity.
In Time, This Time
“They got this one in time,” said Patricia Wolf, a lawyer representing the child’s interests as guardian ad litem in the case.
That doesn’t always happen, she said.
Had the paternity hearing been held before the juvenile court ordered a genetic test or had the results not been known to the paternity court, Cruz could have been legally established as the father—a determination that is often hard to overturn even with a negative paternity test.
Attorney Wolf said there are lots of instances in which the juvenile court or the probate court concludes a man is not a child’s father when the family support magistrate division determines he is. To overturn such a determination, the man must go to court to file a petition to open paternity, which the magistrate will grant only if the man is able to prove “fraud, duress, or a material mistake.” Magistrates and lawyers who represent both mothers and putative fathers agree it’s a difficult standard to meet.
Part of the problem is that the juvenile court has the authority to order a paternity test. So does the probate court, which has some jurisdiction over paternity questions because of inheritance issues. But the family support magistrate division, which determines paternity for purposes of providing child support in lieu of public assistance, doesn’t. Unlike judges, magistrates can’t issue such orders without explicit statutory authority. The statute doesn’t give them that right.
The other problem is that the different court systems often don’t communicate well with one another, according to Attorney Wolf.
That leaves some “putative fathers” in the position of being considered the father by one court, and not-the-father by another. “You can even end up with two legal fathers,” said former magistrate Lifshitz, who continues to hear cases as a referee. “This happens on occasion.”
Where’s The Real Daddy?
Duane Cruz avoided that outcome. After the magistrate’s finding of non-paternity Thursday, Cruz was returned to Willard-Cybulski Correctional Institution in Enfield to finish his 18-month sentence for second degree assault. He has previous convictions for third degree assault and 6th degree larceny.
Tabitha Taylor was returned to York Correctional Institution, a high security facility for female offenders in Niantic. On Monday, she was sentenced to three years in prison for burglary in the third degree and conspiracy to commit burglary in the third degree. She has a long list of criminal convictions beginning in 2003, including convictions for narcotics possession, identity theft, conspiracy to commit robbery, and larceny in various degrees.
With Cruz and Taylor back in prison, the child presumably will continue to live with Taylor’s parents.
And what about the boy’s biological daddy?
During Thursday’s hearing, it was indicated that Taylor had named another man as the father.
And where is the putative father?
Incarcerated, Taylor said. In Tampa, Fla.
Previous stories about paternity & DNA cases: