Posted by Jay McMillian | Aug 06, 2017 | 2 Comments


The issue of paternity would lend itself to be explainable in fairly simple terms. Paternity issues in South Carolina Family Courts most often come up when a single mother has a child out of wedlock. The basic premise is that the best interest of the child, the mother, and the state would be served if the biological father can be determined and, at the very least, a system of financial support can be established from the biological father to the mother in the form of child support. Sounds simple right?

The mother can usually initiate a paternity finding through service of a Notice of Financial Responsibility and Paternity Determination upon the suspected father. The mother can initiate this proceeding through either the South Carolina Department of Social Services (DSS) or through her own family lawyer. This is a court pleading filed in Family Court and served upon the suspected father that allows the mother to get a judicial finding of paternity upon a father. In the modern age the method that is considered "absolute" in a finding of paternity is DNA testing. The judicial finding establishes the father through the DNA testing and will also initiate the child support obligation of the father. One thing to seriously note here is that this process should never be confused with some type of state sponsored Maury Povich episode. In the vast majority of cases, the mother has a pretty good idea who the father is and the service of the court Notice mentioned above is usually limited to one individual. 

 Again sounds simple right? . . . Well let's try this one on for size . . . Can a South Carolina court declare you the father and then, 16 years later, say that you are not the father? The South Carolina Court of Appeals just released an opinion on August 2, 2017 in the case of Ashburn v. Rogers and South Carolina Department of Social Services that answers this question, and under the right circumstances the answer is "yes"! It is important to note that this is an opinion of The South Carolina Court of Appeals, therefore I am anticipating this case being heard by the state Supreme Court and whether the conclusions reached by the Court of Appeals will be upheld is something we will have to wait and see.

The facts in this case go back to late 1999 and early 2000. Mr. Ashburn (Appellate) was a Marine stationed at Parris Island. During late 1999 and early 2000, Mr. Ashburn had a brief romantic relationship with Ms. Rogers (Respondent). Though the relationship was short-lived, Ms. Rogers subsequently found out that she was pregnant. In October of 2000, Ms. Rogers gave birth to a daughter. It is important to note before going any further that Mr. Ashburn was a male Caucasian and Ms. Rogers was a female African-American. The daughter born in October of 2000 was bi-racial. These demographic facts plan a very important role in what is to follow.

Mr. Ashburn had no involvement with mother during her pregnancy, he was not present at the birth of the child in October 2000, and did not visit the child until she was nearly 7 months old and only after being forced to initiate contact by the Marine Corp. In March 2001, Mr. Ashburn was served with a Notice of Financial Responsibility and Paternity Determination initiated by The South Carolina Department of Social Services on behalf of Ms. Rogers so that child support could be started. During the subsequent hearing in Beaufort County Family Court, Ms. Rogers testified that she did not have any intimate relations with any other white men, with the exception of Mr. Ashburn. Mr. Ashburn was offered the chance for genetic testing to determine paternity, but he waived it. (whether the fact that mother's testimony and the birth of bi-racial child influenced this decision, who knows but always get the DNA testing done - more about this later) Mr. Ashburn signed an Administrative Order with DSS whereas he acknowledged that he was the natural father of the child, acknowledged the legal finding of his paternity,and agreed to pay $100.00 semi-monthly in child support to Ms. Rogers. 

In May of 2002, Mr. Ashburn signed an agreement with DSS, who once again gave Mr. Ashburn the chance to submit DNA to establish paternity. Mr. Rogers failed to provide a sample. Mr. Ashburn had very limited contact with Ms. Rogers and the child up until 2003, when the Marine Corp reassigned him to Japan. At that point, Mr. Ashburn severed contact with Ms. Rogers and the child. 

Now the story fast forwards to November 2012. Remember . . . ITS BEEN 12 YEARS!! That is when Ms. Rogers filed a request with the Beaufort County Family Court to modify Mr. Ashburn's child support obligation. A month later, Mr. Ashburn requested a visit with the child and a visit was arranged in Charleston. During this visit, Mr. Ashburn brought along a drug-store purchased DNA kit and obtained samples from the child and himself. These samples were sent in for testing . . . AND . . . I bet you know where this is going. The DNA test concluded that he was not the biological father of the child.

Based on the conclusion of his own testing, Mr. Ashburn filed a concurrent action in Beaufort County Family Court in April 2013 to dis-establish his paternity for the child . . . who is now 12 years old. As part of this action filed by Mr. Ashburn, DSS scheduled genetic testing of Mr. Ashburn and the child. You probably already know don't you . . . The test conclusively confirmed that Mr. Ashburn was not the biological father of the child. 

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At the June 2014 hearing on the dis-establishment of paternity, Ms. Rogers did walk back her claim concerning her intimacy with Caucasian men. She testified that she did get drunk at a party one evening with a white male friend and that "something may have happened." The date she testified that this party occurred would fit the window of conception for the birth of the child in October of 2000. However, despite the genetic testing and mother's testimony, the Family Court of Beaufort County denied Mr. Ashburn's request to dis-establish paternity, stating that the finding from back in 2001 was not induced under any extrinsic fraud committed upon him. Mr. Ashburn also filed a Motion for Reconsideration based upon the grounds that the obligation upon him was no longer equitable to him if it was to be enforced in the future. The Family Court denied this Motion and this got the case to the South Carolina Court of Appeals.

So I already gave away the ending . . . The South Carolina Court of Appeals did find that Mr. Ashburn's paternity finding should be terminated in light of the DNA testing and mother's testimony. The interesting part of this case and what needs to be noticed is how they got to that decision. 

As a lawyer, the first thing that popped into my mind when I read this opinion was "What about res judicata?" Res Judicata is a legal doctrine that basically prevents re-litigation of the same issue once it has been decided by the Court. Simply put, Mr. Ashburn would be prevented from seeking a new paternity finding since paternity was the specific issue established back in 2001 between the same parties and as a result of the same transaction or series of events. There are very limited exceptions to res judicata but they are very narrow in scope. So how do we get around this legal doctrine in this case and release Mr. Ashburn from his obligation.

The vessel used by the Court of Appeals to grant the relief sought by Mr. Ashburn is Rule 60(b)(5) of the South Carolina Rules of Civil Procedure. This is a Motion for Relief from A Judgment or Court Order. The Court of Appeals granted Mr. Ashburn's request for relief under this Rule basically under the premise that to enforce the court order going forward, knowing he is not the biological father, would be unjust. 

This seems like a rational reason, though it is also understandable that minds could differ. However, the wheels come off in the explanation given by the Court on why future enforcement would be unjust to Mr. Ashburn. The Court runs home to gold standard of family court actions involving children . . . THE BEST INTEREST OF THE CHILD! The Court lays out several factors to consider in a situation where a "legal father" can get relief from a previous order of paternity. Those factors include:

  1. Financial impact on the father
  2. Interest of the parents or alleged parents
  3. Length of time since the previous paternity determination
  4. Nature of the relationship between the father and the child
  5. Possibility of other potential fathers withheld by the mother
  6. Best Interest of the Child 

The Court even says the "best interest of the child" is paramount in this analysis. So, I ask how is the best interest of the child in this case served by terminating financial support. Financial support paid by a person who not once, but twice refused to provide samples for DNA testing. It is only 12 years later that the "father" seeks to take on any responsibility for determining paternity, and that was only in response to a request by the biological mother for an increase in child support. Is this, in its totality, at this point in time, in the best interest of the child?

The Court, whether intentionally or through oversight, seems to throw Mr. Ashburn a bone and implies that the lack of relationship between Mr. Ashburn and the child supports its conclusion to reverse the paternity finding. The Court comments that to enforce the child support obligation and paternity finding would only serve to establish a relationship based in finances with no real social support. The Court also comments that using finances alone as the standard would mean upholding paternity in all cases on the premise of the best interest of the child. I find this to be a interesting rationale and takes me to where I would like to end this article. 

I would like to end this article with two questions . . . One, all facts considered, is the best interest of the child being served by the termination of the support obligation of Mr. Ashburn? And two . . . let's assume all the facts of this case are true with one exception being that Mr. Ashburn is involved in the life of the child and otherwise carries out the role of a father . . . does the Court find the same conclusion. Did Mr. Ashburn benefit eventually from being an absentee father?


If you have a child and seek to establish paternity in order to pursue Child Support or to establish visitation rights, contact me at The McMillian law Firm. Sit down with a me for a conversation so that we can evaluate your evidence, weigh the merit of your claim, and begin the process of setting things straight and doing what is right for you and your child. Contact me today and let's begin to reclaim your life.

About the Author

Jay McMillian

Background I chose to build my law practice in the areas of Car Accident and Personal Injury because these areas of the law are the most accurate reflection of my values and my upbringing. Being the son of a breakfast hostess and a retired US Army Sargent turned construction worker, the values instilled upon me by my par...


Denise Drake Reply

Posted Nov 27, 2017 at 04:44:01

Excellent article!… I’m posting on my twitter page! I have alleged fathers asking me daily about this and so many legal issues….my company is located in Beaufort SC : Coastal Paternity, RN opened and operated DNA paternity and Drug Testing company

Jay McMillian Reply

Posted Nov 27, 2017 at 13:39:08

Denise, Thank you for the compliment! From a legal perspective, I am always advising potential clients that DNA / Paternity testing must be done in any matter where there is even an inkling of doubt about paternity. It helps avoid the pitfalls associated with support, visitation, and even matters like inheritance and end of life decisions. Please feel free to distribute this post at your own discretion. Please feel free to have any potential fathers who have a legal question to give me a call. The first hour consultation is free and can be done in person or over the phone.

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Attorney Jay McMillian operates a solo practice with an emphasis on two core principles. First, to provide competent legal advice in the areas of Auto Accident and Personal Injury Law to the people he is proudest to serve, the people of the South Carolina Low Country. Second, to provide the most personal and intimate service to each and every client and give them the attention and compassion that they deserve while going through the stress and strain of negotiating or litigating an injury claim. If you live in Charleston, Summerville, Mount Pleasant, Goose Creek, James Island, Walterboro, Moncks Corner, and you or someone you love has been injured by the negligence of another, please call Jay at The McMillian Law Firm today.

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