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:
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. |
[ Go to Contents ]
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.
[ Go to Contents ]
All symposium participants considered "stability" for children a critical value in weighing the competing interests in whether or not to permit paternity to be challenged. However the discussants quickly acknowledged that term encompassed a range of issues pertaining both to child well being and legal status. The group first explored varying concepts of "stability", without reaching a consensus definition.
A commenter pointed out that in child welfare, stability is important to all developmental phases of children and essential to growing up competent and secure. Without stability, the child lives in chaos. Child welfare experts use the term with particularity, measuring the child's living arrangements during a prior period — 6 months or a year. The opposing child welfare concept is disruption. Several participants linked the need to study the emotional impact of disruption on children with ascertaining the "best interest of a child". Conferees noted that the few studies available focus on adoption disruption, not the withdrawal of a father through paternity disestablishment. There was a consensus that measuring disruption and stability needs to be made relative to the child's developmental level.
A conferee noted that the interests and what is required to satisfy the various "stakeholders" in a paternity disestablishment decision, are not necessarily going to be stable over time. For example, even assuming the genetic father may best meet the child's emotional interests in love and support at the time of the child's birth, after a paternal relationship is formed between father and child, that need may be best met by preserving the stability of the existing relationship, regardless of whether it is with the genetic father.
A participant pointed out that in terms of family law, stability, like "best interest of the child" is an imprecise term, ascertained on a fact-driven case by case basis. Another discussion examined the fact that while the law tends to protect legal stability, it cannot ensure social stability. One question is the extent to which courts weigh stability in determining whether or not to grant genetic testing requests.
Little is known about how paternal discrepancy and the paternity disestablishment process affect the father-child relationship — and the mother-father relationship — and interact with overall child wellbeing. Participants identified at least three categories of cases where quality and stability of the relationship might be explored: disestablishment is raised but testing is blocked based on legal principles such as res judicata; genetic testing establishes that the legal father is not the child's biological parent but paternity is not disestablished on other grounds — such as the family remains intact and it is a third party who seeks to assert his rights; and, father (or mother) asserts he is not the child's biological parent but genetic testing proves him wrong. More than one symposium member suggested that the threat of instability alone causes harm. Depending on the age of the child, despite confirmation of bio-identity, the challenge itself is disruptive. While laws such as the UPA (2002) aim to balance the outcomes — and favor the interests of children over adults — participants discussed whether the law can prevent or mitigate harm in an environment of inexpensive, non-invasive, self help genetic testing.
[ Go to Contents ]
During the morning presentation of all four background papers, several interrelated themes emerged and were carried forward to the afternoon's discussion. Symposium members referred to the balancing test between legal, social and biological parenting as "biology plus". It was the group's consensus that key goals of both paternity establishment and disestablishment policy are to provide two-parent care where possible and to preserve established relationships. While bio-identity was recognized by all to be a powerful emotional force and important factor for all involved, there was no corresponding universal support for what a participant identified as a "strict sperm liability" policy — where paternity is fixed irrevocably at conception by the contribution of genetic material.
Participants suggested that it is reasonable to explore whether genetic parentage trumps other interests. However, others suggested that a pure genetics model built on the ascendancy of a biological imperative ignores evidence from adoptive, step- and non-traditional families that children can be successfully nurtured and raised by adults with whom they do not share genes. Other conferees noted that modern reproductive technologies challenge traditional understandings of parenthood. Surrogate motherhood, ovarian transplants, and post-mortem sperm donation all call into question: What is a mother? What is a father?
This discussion encompassed two key disparate concepts. First, under what circumstances and to what extent should those social and emotional "plus" factors — involvement, nurturing, and legal identity as a parent — outweigh bio-identity, if ever? When weighing such factors does it matter who brings the action to disestablish? It is not always the case that paternity disestablishment arises when a legal father seeks to terminate his relationship to the child — or to the mother — and end his financial support. Disestablishment litigation occurs when a mother uses non-biology to oust the child's legal father. A biological father may also seek to establish his legal and emotional relationship with a child with whom he shares a genetic identity. As a participant noted, while they may contain common stories, the human twists are inevitably unique.
The second concept is drawn primarily from the child welfare model — the more adults positively engaged with a child the better. Participants discussed looking at multiple fathers in this context — a legal father, a social father and perhaps a separate biological father. A member suggested such a model would find a parallel in open-adoptions and foster care cases. The viability of such as solution was considered to be dependent on positive relationships among those involved and a reliance on mediation and co-parenting. There was agreement that the failure of cooperation would default to a government decision — and a low probability that legislatures and courts would adopt widely the multiple father models. A participant suggested that while the concept of multiple fathers was appealing, the complication of parceling out both rights and responsibilities was unrealistic. For example, who would pay child support — all, the legal father, or the biological parent? Even the idea of multiple social parents is inevitably complicated by the propensity of American families to move. Despite important laws, such as UIFSA and the UCCJEA, designed to bring more consistency to interstate child support and child custody litigation, conferees highlighted the inevitable complications when litigation and evidence-gathering crosses state borders.
The discussion considered the role of step-parents as a possible model. Several analogies were proffered. A participant suggested that step-parents are evidence that social parents don't see themselves as replacing biological parents. However, neither do step parent families provide the same benefit as intact families. She suggested that if step-parents are obligated to care for stepchildren, it would affect the decision-making on whether or not to get involved. The group discussed the fact that second marriages break up more often than first marriages. However, a participant noted that the way many single mothers get out of poverty is through marriage. She posited that it was counterproductive to penalize step-fathers for supporting their wives' children during marriage by making them financially responsible for the children should the marriage dissolve.
Others observed that the tendency was to equate non-biological legal parents to step-parents. It was suggested that a more apt model on which practice and policy should be weighed is adoption. Such a model promotes the values of stability for the child and permits — in accord with and limited by state law — the child to explore his or her bio-identity as an adult, without disruption of the legal relationship during minority.
Finally, the discussion mirrored some of the concerns identified and discussed earlier. To what extent are voluntary paternity acknowledgement laws used as an inexpensive, self-help adoption? What are the triggers for bringing the disestablishment action, including disability or illness of a child, child support enforcement, or new relationships?
[ Go to Contents ]
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.
[ Go to Contents ]
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.
Top of Page | Contents
Main Page of Report | Contents
of Report
Home Pages:
Human Services Policy
(HSP)
Assistant Secretary for Planning and Evaluation
(ASPE)
U.S. Department of Health and Human Services
(HHS)