When a child is born to a married couple, the husband is presumed to be the child's legal father and paternity does not need to be established. However, non-marital children must have their legal paternity established in order to give the child the right to such benefits as child support payments, social security payments and insurance benefits, inheritances, and the father's medical history. Paternity also is a prerequisite for establishing a father's legal right to have access to the child in order to develop emotional and social ties with the child, and to have a role in decisions about the child's life such as religious affiliation or place of residence. In the past, paternity was primarily established by courts when the mother or the child support enforcement agency filed a paternity suit in order to pursue child support. A judge or jury established paternity based on testimony, physical appearances, or blood type. Contested cases were common and paternity trials were seen as cumbersome, expensive and uncertain in their results. With the development of more sophisticated technology, courts have come to rely on DNA testing, especially in contested cases, because testing can determine genetic parentage with more than 99 percent accuracy. If paternity is contested in a case in the Title IV-D Child Support Enforcement Program, the child support enforcement agency must pay for genetic testing if either party requests it, although they may recoup testing costs from the father if paternity is established. An enhanced federal financial participation rate of 90 percent is available for the state costs for genetic testing in Title IV-D cases.
Recognizing the broad benefits of early paternity establishment for children and the specific efficiencies for the child support enforcement program, Congress passed and the President signed into law as part of the Omnibus Budget Reconciliation Act of 1993 (P.L. 103-66) provisions requiring that every state enact procedures allowing parents to voluntarily acknowledge paternity by signing a written admission of paternity. P.L. 103-66 also required states to give full faith and credit to paternities voluntarily acknowledged in another state, allow paternity to be established or acknowledged at least until the child is eighteen years old, have programs that offer new unwed parents the chance to voluntarily establish the child's paternity in the hospital at the time of the child's birth, and allow paternities to be voluntarily acknowledged at state vital records offices. Either parent may rescind a voluntary paternity acknowledgement within the earlier of 60 days or the date of an administrative or judicial proceeding to establish a support order involving a signing party. After that, voluntary acknowledgements can generally only be challenged on the grounds of fraud, duress, or mistake of fact. The Personal Responsibility and Work Opportunity Act of 1996 (PRWORA) added several additional provisions, including the requirement that states must provide the putative father with standing to establish paternity even over the objections of the mother and that states have procedures to establish paternity by default.
The provisions in P.L. 106-33 and PRWORA, plus the greater certainty of DNA results in contested cases, have been extremely successful in increasing paternity establishment. Paternity was established in more than 1.5 million child support enforcement cases in FY 2002, a 60 percent increase from 1995. Over half of these paternities were established through voluntary acknowledgements by the parents in the hospital at the birth of the child.
Recently, it appears that a growing number of voluntary acknowledgements and paternities established by virtue of marriage or otherwise have been challenged because the legal father has been shown through DNA testing not to be the biological parent of the child. Because it is now possible to prove with certainty that a father and child are not biologically related, paternity disestablishment is emerging as a difficult issue that state child support enforcement programs must address. Paternity disestablishment challenges several of the central premises on which family law and child support practice are based, such as the presumption of parentage for any child born within marriage and that a child support award can be treated as a final judgment not subject to retroactive changes. Paternity disestablishment is also drawing much attention in the media and in state legislatures, particularly when a man who was erroneously led to believe a child was his own is required to pay support after it is determined that he is not the biological parent.
Potential changes to the paternity establishment process to decrease the possibility of erroneous establishment of paternity could impact the performance of the child support enforcement system. For example, DNA testing is not currently required for all paternity establishments. If it were required prior to a voluntary establishment of paternity, establishment rates might fall and administrative costs would rise, potentially leading to decreased child support collections and higher costs. Additionally if government and/or custodial mothers would be required to reimburse men who paid child support for children whose legal paternity was erroneously established, this could be a potential drain on state and federal child support funds as well as economically harming families.
To take a broad look at the policy issues raised by paternity distestablishment, the Office of the Assistant Secretary for Planning and Evaluation in the Department of Health and Human Services initiated a project to analyze the issues surrounding disestablishment, focusing on how paternity disestablishment may impact child support enforcement, child welfare and access to other federal benefits based on the legal parent-child relationship. Consideration was be given to broad social factors such as the emotional, social and financial well being of the child; fairness and justice to the wrongly named father; and the social and legal implications of paternity disestablishment. While paternity disestablishment also affects parents married at the time of the birth of the child, the focus of this project was on non-marital paternity establishment.
The analysis found that the current available research literature on paternity disestablishment is sparse. Published material in the academic and professional literature focuses predominantly on the legal aspects of paternity disestablishment and court challenges to paternity judgments. Several cases have received widespread attention in the popular media, but the focus has always remained on the legal and subsequent financial aspects, predominately child support. There does not appear to be any comprehensive empirical study on the prevalence of legal paternity disestablishment or the effects of paternity disestablishment on various domains of child well-being.
As part of this project, on January 25, 2006, ASPE convened an invitational symposium in Washington, D.C. The symposium's goal was to look beyond just the economic implications of paternity disestablishment for the child support program and consider the emotional, social and financial well-being of the child; the societal and legal implications of paternity disestablishment, including maintaining the integrity of the paternity establishment process; and the affect of child support enforcement and other federal programs, especially child welfare.
The project first conducted a literature review of both academic and popular media. Four background papers were presented by the authors and a discussant:
- The State of Paternity Establishment Policy,
- Implication of Principles of Family Law,
- Paternity Disestablishment, Father Involvement and the Best Interests of the Child: Lessons from Child Welfare and Family Law, and
- Conceiving the Father: An Ethicist's Approach to Paternity Disestablishment.
Those invited, including law professors, child welfare researchers, state and federal administrators, and academics, were engaged in a discussion of the framework under which paternity disestablishment should be further examined. The symposium's goal was to identify what is understood about the relationship between paternity establishment/disestablishment law and procedures and the well-being of children, and to determine critical questions and future research needs to better inform policy discussions and decisions on these issues.
Paternity disestablishment touches on areas such as child wellbeing, marriage and family formation, health promotion, and the interaction between science and society. The research is anecdotal; the magnitude of paternity disestablishment is unknown. This symposium is a very preliminary look at an emerging issue.