Emerging Issues in Paternity Establishment: Symposium Summary. Magnitude of the Problem


Symposium Discussion

The current 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. A handful of paternity disestablishment cases have received significant attention in the popular media, but the focus has always remained on the legal and subsequent financial aspects of allegations of "paternity fraud." At this time, there does not appear to be any comprehensive empirical research on the prevalence of legal paternity disestablishment.

Where the original paternity determination was made after and consistent with genetic testing, disestablishment is not an issue. Paternity disestablishment of nonmarital children therefore is considered based on one of the three circumstances by which paternity was established:

  1. The legal father signed a voluntary paternity acknowledgment or consented to paternity before a tribunal knowing he was not the biological father but wanting to assume the responsibilities of parenthood.
  2. The legal father signed a voluntary paternity acknowledgment or consented to paternity before a tribunal believing he was the child's father.
  3. A tribunal determined paternity by default.

The discussion acknowledged that reported legal cases possibly are skewed by the economics of appellate litigation. These decisions tend to involve either marital children or families with greater financial resources. Generally, states do not quantify or report cases where a disestablishment action is filed. A growing number of very broad state statutes authorize genetic testing solely based on the fact that bio-identity was not previously determined. Thus, states such as California or Ohio soon may provide "raw" numbers that could be used to extrapolate the scope of the paternity disestablishment issue. Even so, it is uncertain whether states would likely capture the context in which the issue of biological parentage is raised, who sought disestablishment, and the result.

For example, anecdotal reports suggest that the legal father's lack of genetic connection to a child is most frequently offered as a defense to a petition to enforce or modify upward an existing support order, rather than as an independent legal action. However conferees noted that the issue also arises in a child welfare or initial child support proceeding because mother names as her child's biological father a man different from the legally determined parent, raising a conundrum for the state agency. And where the legal argument is raised in the context of a Rule 60B or other motion to reopen a court order, there is no separate case number (other than the original petition under which the order was entered) to count.

While counting and reporting disestablishment petitions filed is challenging, conferees suggested that paternity disestablishment may occur on a more informal but widespread basis in local child support agencies. Child support workers may schedule genetic testing upon request, even where paternity was earlier determined legally by voluntary acknowledgement or default order. Conferees described wide difference in policy, procedure and control among the states. Research would be valuable to ascertain if there is significant variation between written policy and grass roots practice. From a policy perspective, several participants asserted it was critical to ascertain whether or not voluntary acknowledgments were being given the status of final determinations, as required by federal and state law.

A conferee asserted that reporting the results of subsequent genetic testing was highly important. Advocates for "paternity fraud" statutes consistently argue that genetic testing excludes the man named in almost 30 percent of tests. This statistic appears to be derived from an annual survey of genetic testing laboratories by the American Association of Blood Banks (ABA). In 2003, the ABA reported 354,000 paternity tests, double the annual count from a decade ago.(1) Conferees discussed the lack of evidence that exclusion rate can be extrapolated to the population in general, or even to non-marital births, as the testing is usually ordered only in contested cases. A participant noted that, from a different perspective, in over 70% of contested cases, the putative father is also the child's biological parent. Massachusetts' IV-D agency records show that 15 to 18 percent of named putative fathers are excluded by genetic testing.

The symposium members agreed that quantifying the magnitude of the problem was a necessary precedent to all other research and policy decisions. Those in attendance expressed uncertainly as to whether paternity disestablishment was a highly visible but extremely contained issue or a wide-spread problem, though all acknowledged it is a serious political and policy problem as the perception of inequity is widespread. Data is required both to ascertain to what extent the issue should be "tackled"  and what resources committed. As an attendee put it, "If it ain't broke, don't fix it." All agreed there is a different policy response if paternity disestablishment impacts a relatively small percent of families rather than if it is more widespread. In the former case, the system can accommodate an individualized trial with a case by case response. The latter situation calls into play the validity and efficacy of existing policy choices.

Similarly, if the overwhelming number of disestablishment cases derive from default orders, this would suggest that it is those policies and procedures that need be addressed and the successful voluntary paternity acknowledgment program. Nevertheless, public perception of fairness were agreed to drive the political discussion. Thus, accurately defining the magnitude of the issue would inform state and federal legislators, and policy makers and the public.

RATES OF PATERNAL DISCREPANCY: A meta-analysis of rates of paternal discrepancy (that is, a genetic mismatch between the tested man and the child), found ten studies on paternal discrepancy conducted in the United States, although many of the studies are small and all have methodological drawbacks (Bellis et. al. 2005). The studies were divided into cases in which the testing was conducted as a result of a dispute about the child's paternity, which are likely to exaggerate rates of paternal discrepancy for the population as a whole, and those in which the testing was conducted for some other reason. Four U.S. studies from non-disputed samples show rates of paternal discrepancy from 1.4 percent to 18 percent. The studies with the largest samples, and so presumably stronger results, had rates of 1.4 percent and 2.7 percent. Among disputed paternities in the U.S. (6 studies), rates of paternal discrepancy varied from 25.5 percent to 53 percent. The 53 percent rate is based on 37 prenatal tests. Most of these studies had rates of paternal discrepancy in the 25 to 29 percent range.  Mark A. Bellis, Karen Hughes, Sara Hughes and John R. Ashton, "Measuring Paternal Discrepancy and its Public Health Consequences," Journal of Epidemiology and Community Health, 2005; 59; 749-754.

Research needs

  1. Identifying the magnitude of incidences of challenges to legal paternity and paternity distesablishments was the most pressing research need identified by symposium participants. To fully inform researchers, policymakers, and practitioners, this should include the method of paternity establishment, who is seeking to disestablish (e.g. mother, legal father, and claiming biological father), age of the child at the time of establishment and disestablishment, and analysis by subgroup.

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