Emerging Issues in Paternity Establishment: Symposium Summary. The Sooner The Better

09/17/2007

Symposium Discussion

Conferees accepted the premise that children grow better in healthy functioning families, though they recognized individual disagreement as to the form such families might take. For non-marital children, federal policy has moved the legal establishment of paternity from predominately contested court proceedings toward a preference for a user-friendly voluntary acknowledgment process. The father-child relationship is formalized at or soon after the child's birth, when the relationship between the mother and father was perceived to be the strongest. Simultaneously federal law has emphasized the independent importance of establishing a legal father-child relationship. For example, child support services are available for those seeking only to establish paternity, regardless of whether the client is a putative father or mother. TANF mandates the recipient identify the father and cooperate in establishment of paternity and child support. And performance requirements for state child support agencies set a high bar, requiring action to establish paternity for almost all children born outside of marriage.

While contested paternity cases involving non-marital children are decided on the basis of genetic testing, federal law also requires the entry of default orders when a putative father fails to appear for and participate in paternity establishment proceedings. As with voluntary acknowledgments, default paternity determinations are concluded without establishing any biological relationship between father and child. The ground is thus laid for a later claim to disestablish the legal father-child relationship. One core theme presented in the background papers and by symposium participants is whether policy and practice should be changed so that paternity is established based on bio-identity from the start.

However, consensus was not reached on whether the paternity establishment in non-marital cases means exclusively identifying a child's biological father. Some participants asserted that the expanding role of genetics in medical health and treatment is so critical that accurate genetic identification of a child's parents now trumps all other interests. For this group, the import of biology weighs in favor of genetic testing and paternity established in accord with those tests. Given the general agreement that the critical time to "get it right" is the first time legal paternity is determined, those asserting biological identity as the ultimate determination of paternity were more favorably disposed to considering mandatory genetic testing before a voluntary acknowledgement could be signed or a default order entered. This group noted that a growing number of state legislatures and court rulings provide for genetic testing where legal paternity was determined without it. It is far better to test from the beginning rather than to entangle the child in a disestablishment dispute later in life, where the trauma of dissolving an existing relationship will likely to be greater.

Other conferees expressed reservations over the premise that "getting it right" equaled bio-identity. They note that medical technology is moving so fast that it has leapt over the need to know the genetic make up of either parent; the child's genome provides the critical information for diagnosis and treatment of disease. A participant suggested that family stability is perhaps as or more important than living with two biological parents. She suggested a need to examine further the impact of non-biological paternity determination on the adult behavior of children raised in such family settings. Given the prevalence of blended and adoptive families, conferees considered that many men successfully act as fathers to children with whom they have no genetic connection. Conferees also discussed how the law treats children born through a range of assisted reproductive technologies. In such cases, the law frequently identifies as parents and grants parental rights to individuals with no genetic connection to the child.

It was suggested by more than one conferee and discussant that there were considerable legal and policy considerations to be analyzed and addressed before adopting a policy that would mandate genetic testing for non-marital children but not marital children. If bio-identity is declared paramount, should that conclusion be different for marital children?

Practical concerns were identified and discussed. Conferees agreed that mandating genetic testing before permitting a voluntary acknowledgement to be signed would run counter to the policy goal of providing a user-friendly procedure to legally establish the paternity of non-marital children. While genetic identity would be accurate, conferees were concerned that the disruption was too high, particularly as the scope of the disestablishment problem is unknown. (See earlier discussion.)

Conferees considered the experience of the Texas IV-D program in its 2004 study at Parkland Hospital. Genetic testing was offered at no cost in the hospital at the time of the child's birth. Of the 5,332 births to unmarried mothers during in the study, genetic testing was requested in only 79 cases  1.5 percent. Of this total, testing was completed in 31 cases  0.6 percent of the total births. Of the 31 completed genetic tests, seven alleged fathers learned that they were excluded as biological fathers. During the study period, 3,835 alleged fathers chose not to have the free testing and instead signed the voluntary Acknowledgment of Paternity. A symposium participant identified possible conflicting human dynamics at work here: The unmarried father is in a relationship with the mother and concerned about being kicked out of the home should he request genetic testing. Another noted that for an unknown number of low income families, the voluntary acknowledgement process offers a free step-parent adoption process  both parties sign knowing the signatory is not the child's biological father but wish to form a family nonetheless.

Participants agreed that the procedure to rescind a voluntary acknowledgment within the allowable 60 days was unclear in many states. There was a consensus that model procedures should be evaluated and all states required to adopt and to publicize those procedures. And, where an acknowledgement is rescinded, the issue of paternity establishment should be immediately joined and litigated, along the lines of the procedures incorporated into the Uniform Parentage Act (2002). A child's paternity should be ascertained at the earliest possible moment.

Other conferees suggested that further analysis is required of the impact mandatory genetic testing would have on adoption law and practice. For example, both safe harbor laws and putative father registries aim to quickly free children for adoption without formally establishing paternity. Participants agreed further research is required to determine whether such laws could be harmonized with a requirement to establish biological identity for all nonmarital children. Also, what roadblocks would exist in a child welfare case where the agency seeks to bring in paternal relatives and genetic testing had not been completed?

While there were significant differences in approach on key issues, conferees were nearly unanimous that default paternity orders offer the greatest opportunity to change procedures in favor of determining the biological parent of a child. Currently state child support agencies report total paternities established and the number of determinations by voluntary acknowledgement. Participants agreed that federal reporting by the states should include the number of cases where paternity is established by default. Additionally, state default practices should be examined, including notice and what steps could be taken to ensure procedural fairness. While default practices vary from state to state, court to agency or even court to court, Los Angeles County, California illustrates a system overwhelmed by defaults orders. Two years ago, L.A. reported that 70 percent of its orders were established be default. (The report did not differentiate between paternity and non-paternity cases.) A conferee cautioned that entering final and binding default orders is critical to the court process in order to provide the appropriate sanctions for putative fathers who knew of the hearing and refused to appear. . (It is also mandated by federal law, subject to whatever safeguards a state elects.) All agreed that states with low default rates should be studied and recommended practices shared with other states.

Research Needs

  1. Symposium participants suggested that, because the risk of paternal discrepancy may be greater when paternity is established by default, these establishment procedures should be further analyzed to determine the proportion of paternities that are established by default, the role of the mother and of the child welfare system in providing information on the father's identity, and "best practices" in states and localities with low default rates.

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