The final overarching theme during the symposium was fairness and consistency. As with the other topics, several principals are intertwined into this category. Discussants raised substantive and procedural fairness as integral to a public perception that the justice system and government was acting appropriately in these cases. The bottom line is: Are similar cases similarly treated? Conferees considered that attaining consistency is challenging for two critical reasons. First, state laws govern and vary greatly on such key issues as whether and under what circumstances a legal paternity determination may be reopened or challenged. Second, paternity disestablishment cases are fact-specific, complex and nuanced, with conflicting interests asserted by the legal father, the mother, the biological father, the child and the state.
As to the first point, participants saw little merit in a policy that would make a uniform federal law paramount in disestablishment matters. They commented that family law still reflects the values of the citizens of the states. As a result lack of uniformity among states was to be expected and accommodated, although inconsistency within a state challenged notions of legal consistency.
Attendees recommended that states laws on matters such as adoption, termination of parental rights (TPR), child support, child welfare and inheritance be catalogued, inconsistencies identified and, to the extent possible, laws harmonized. There was considerable discussion about whether and how a the best interest of the child standard should be defined and applied, and if so, whether that term would have a consistent result when the underlying legal issue changed. One example cited was adoption. Putative father registries were established, and found constitutional, as a means to expedite infant adoption when no man self-declared his connection to the child. Here a participant noted the policy is to give a man little time to become a legal father because "we're in a hurry to place the child in a nurturing environment." Participants considered whether such lack of consistency was "fair" and whether fairness to the child and the father who might later come and assert parental rights were in conflict. Similar policy choices have been made by safe harbor laws.
Beyond the traditional family law areas, legal parental identity also impacts inheritance laws and entitlement to public and private benefits. Several members recommended that states consider the Uniform Parentage Act (2002). Drafted by the National Conference of Commissioners on Uniform State Laws, UPA (2002) is designed to make uniform state paternity establishment and disestablishment laws and procedures across the full range of such state legal issues. UPA (2002) has been enacted in seven states. It is not mandated by federal law but discussants suggested that it offers a consistent way to implement federal mandates. Most attending commented that consistency in such matters as the procedures to use when a signor timely seeks to rescind a voluntary acknowledgment and what then happens regarding ascertaining parentage would provide greater equity in the process.
While parentage determination is a state law issue, the circumstances where the federal government must ascertain whether a person qualifies as a child for purposes of receiving federal benefits. Currently, there is not consistency across types of federal benefits and rights due children. See attached Appendix C for further information.
As to how to ensure that individual decisions are substantively fair, the symposium contained considerable discussion as to what principals and procedures would bring "equity to the decision-making process". There was not a consensus on what procedures to include but there was agreement that establishing at least a broad structure as to how to approach individual cases would provide much needed standards. However, a member cautioned that cultural trends are fast-changing and the current notion of what is right for children, for the adults involved, or for government may not be an accurate predictor of what is right in the future.
- Recommendations for a more in-depth research analysis of both how paternity disestablishment cases arise were reiterated, together with a closer exploration of whether the environment in which the case arises predominately child support or child welfare make a difference in actions by the mother, the legal father or the biological father. Comparative analysis of how different jurisdictions deal with establishment, paternal discrepany, and disestablishement issues would also be useful.
1. It is important to note that there is no evidence that this rate could be applied to the population in general. Much of the testing done by the ABA is ordered in contested cases, and it is possible that multiple men will be tested concurrently for paternity of the same child, meaning that at least one man must be excluded.