The public good is in nothing more essentially interested, than in the protection of every individual’s private rights.
William Blackstone, 1 Commentaries *135. 

While nothing in federal law requires or authorizes establishing paternity against the wrong man, there is also nothing in federal law that prohibits or penalizes tagging the wrong man.  Eligibility for receipt of federal funds under TANF and under the incentive formula depends only upon tagging the largest possible number of men and there is no review or requirement that it be the right men.  With the enormous sums of federal funds that are at stake, the result is not difficult to predict.  The states are hugely incentivised to establish paternities and one man will serve as well as any other. 

California has long been notorious for its high rate of “sewer service,” high rate of default judgments, and high rate of false paternity establishments.*¹⁴  When the California Legislature attempted to ameliorate the problem of paternity fraud, then Governor Gray Davis vetoed the bill, saying:

This [Bill] would directly impact child support collections and would jeopardize California’s ability to meet federally required performance measures putting California at risk of losing up to $40 million in Federal funds.*¹⁵

Simply put, the Governor of the most populous state in the Union vetoed an effort to reduce paternity fraud because a reduction in paternity fraud might cost the government money.*¹⁶ Gov. Davis is not alone in his conclusion that refusing to address paternity fraud is good government and good business.  As the Tampa Tribune reported when Florida was debating paternity fraud reform:

Department spokesman Dave Bruns said the State would be hard-pressed to find the real fathers should a law remove the burden of child support from non-fathers, “Until we could identify who the real dad is and begin making collections, then that family is likely to go on Public Assistance.”*¹⁷

In Missouri, local media reported on a father whose DNA test excluded the possibility of paternity and wrote:

But that made no difference.  The State would consider letting Williams off-the-hook only if his attorney contacted the other two men and Williams paid for their paternity tests.  Otherwise, Williams must pay child support until the two girls reach age eighteen . . . the State is just doing its job, insists Mike Shortridge, chief counsel for the DCSE.  “It is in the best interest of the child to have an order for child support,”*¹⁸

The bottom line in the drive to find some man, any man, to drive up the paternity establishment rate is that “fairness was not a high concern.”*¹⁹ 

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C. Abusive Practices in the Initial Establishment of Paternity

False paternity establishments occur in myriad ways.  There are, however, three major pathways to false paternity establishment that are the direct result of poorly designed state systems:  1) Default Judgments; 2) Lack of Legal Representation; and 3) Defective In-Hospital Paternity Acknowledgments. This section describes major deficiencies in initial paternity establishments.

1. Default Judgments

In Los Angeles County, 80 percent of paternity establishments are entered by default judgment while for the State of California as a whole, the number is 68 percent.*²⁰  California is not alone.  The United States Department of Health and Human Services Office of Inspector General (HHS/IG report) reported that “seven states’ child support agencies report half or more of paternities established in their states occur through defaults.” The Inspector General further reported that “[t]wenty-four percent of local offices in focus states report half or more of paternities in their caseloads are established by default.”*²¹

Every year, some politician can be counted upon to rail against “Deadbeat Dads” and the ever-growing arrearages in the collection of child support.*²²  Despite the most oppressive form of debt collection practiced in the United States (wage garnishment,*²³ asset seizure,*²⁴ license denial,*²⁵ passport denial,*²⁶ tax refund interception,*²⁷ public humiliation through “most wanted” posters,*²⁸ and arrest, criminal fines and imprisonment, *²⁹etc.), child support arrearages are growing.*³⁰  To its credit, California commissioned the Urban Institute to investigate why.  The Urban Institute reported that the number one reason for arrearages was that “orders are set too high relative to ability to pay.”*³¹  The first two of the four listed causes for orders being set too high relative to ability to pay were: 1) establishing too many child support orders by default; and 2) setting default orders at the standard level without knowledge of the obligor’s income.*³²  The first recommendation of The Urban Institute was to:

Reduce Default Orders.  Default orders occur when a noncustodial parent fails to respond to a child support case being brought against him or her.  Some default orders are expected, but a default rate of 71 percent statewide indicates that something is terribly wrong.  Noncustodial parents are not participating in the process of establishing the child support order when default orders occur, which we find reduces collections.  Every effort should be made to identify the reasons why default rates are so high and reduce them.*³³

The Urban Institute findings of (1) a statewide default rate of 71 percent, (2) poor location information for service of process, (3) use of substitute service rather than personal service, and (4) unnecessarily complex pleadings are not the basis for a just system of paternity establishment.  In reporting on the effect of default judgments in cases of false paternity establishments, the United States Department of Health and Human Services Inspector General stated that:

Regardless of the timing, appealing a default order is not likely to be an easy process.  Several state and local managers report they advise parents who wish to appeal to hire an attorney to negotiate the process.  This might be financially difficult for a large number of fathers, and they may end up paying months of child support payments even if they are proven not to be the father.  Even if later excluded by genetic testing, staff indicates the man may still be liable for the child support arrearages not paid during the time he was presumed to be father by default.*³⁴

With a false paternity establishment, a child support order that exceeds his ability to pay, and no realistic avenue for appeal, arrearages accumulate and an innocent paternity fraud victim becomes recharacterized as just another “deadbeat dad.”

2. Intimidation and the Lack of Legal Representation

Paternity fraud victims who can not afford appellate counsel are no more likely to be able to afford trial counsel.  There are few settings in which one is more at the mercy of others than to be an unrepresented litigant in an American court.  Entering a government building purposefully designed to be imposing, addressing a judge in robes on a raised platform, flanked by a bailiff, clerk and court reporter, and opposed by a government-paid lawyer representing the Welfare Department,*³⁵ does anyone seriously think that this is a fair fight for a poorly educated, low-income minority who walks into the courtroom alone?*³⁶  Surely, some judges struggle to assist the unrepresented indigent, but anyone who has been into a child support court knows that most are run with the ruthless efficiency of a factory assembly line.

The paternity fraud victim is hustled through the formality, often in less than five minutes, and may not even realize what has happened until the first garnishment of his paycheck.  The State’s direct financial incentive is to establish paternity regardless of actual paternity facts.  In welfare cases, there is almost always only one attorney in the courtroom and that attorney is not representing the paternity target. 

3. Inadequate In-Hospital Paternity Acknowledgment Procedures

In-hospital paternity acknowledgment is a cornerstone of government policy and a requirement for any state seeking TANF funds.*³⁷ In-hospital paternity acknowledgment can be a real boon for parents and children, but only if the program is well-designed.  A program that fails to screen out false paternity establishments scores a temporary statistical victory but causes enormous enforcement burdens and emotional costs to the victims of the false establishments.

Hospitals do an exceedingly good job of making sure that the right mother is connected to the right baby.  Any visitor to a maternity ward will observe that footprints are taken, identity bands are placed on mother and child, nurseries are staffed and guarded by 24-hour surveillance cameras.

Just as technology exists to protect the mother, equally dispositive technology, DNA testing, exists to protect men as well.  But no in-hospital paternity acknowledgment program is geared toward providing protection to men.  Anyone familiar with in-hospital paternity establishment programs knows that the programs are not geared toward verifying that the right man is identified as the father.  Instead, the programs are openly geared toward exploiting the emotional vulnerability of a man who has come to the hospital solely because he believes that it is his baby who is there.*³⁸  The man’s presence in the hospital to be with “his” baby is called the “magic moment”and the child support bureaucracy openly exploits it as the best opportunity to get a paternity acknowledgment with no questions asked.  As explained by the United States Department of Health and Human Services: 

The experience of States indicates a father of a child born to an unmarried mother is more likely to be present and to admit paternity during the time surrounding the birth than later on . . .

We are not requiring genetic testing for all births as a means of preventing fraudulent acknowledgments. . .

Furthermore, we are not requiring hospital-based programs to offer the option of genetic testing as part of hospital-based programs.*³⁹

The man has come to the hospital solely because he has been led to believe that his baby is there.  He is proud, excited, trusting and he signs the paternity acknowledgment form without first demanding a confirmatory DNA test.  From that moment, actual paternity becomes irrelevant and the paternity fraud victim is trapped.

The baby is already present at the hospital.  For less than $100, a DNA test could conclusively establish the identity of that baby’s father.  The baby needs that information for medical reasons including the possibility of inheritable defects and diseases.  The State should want the information to assure that the child is as correctly matched to its father as to its mother.  The paternity fraud victim surely wants the information at once rather than after years of doubt, expense and litigation. DNA testing should be automatic in all births and should be a mandatory precondition to a valid paternity acknowledgment.

Because courts are wildly inconsistent and greatly troubled by the perceived difficulties of paternity disestablishment, the best solution is to get things right at the front end. Fewer false establishments will serve all interests. The State has equal obligations to both men and women.  The State has an obligation to protect the interests of the real father as well as an interest in avoiding a false establishment naming the wrong man.  The State has an interest in assuring that each child has information about that child’s real parents for both medical reasons and for the love and stability that flow naturally with the biological bond but do not flow naturally between child and paternity fraud victim.  The temporary statistical advantages of “getting the numbers up” do not justify the injury inflicted upon innocent people through false paternity establishments. 

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D. Who and How Many Are Affected?

If paternity fraud were a “one in a million event,” we might shrug and say that the random strike of paternity fraud is no worse than the random strike of lightning.  The reality is that the lowest estimates of the number of paternity fraud victims are in the tens of thousands while many believe that the number is in excess of one million.  The scandal is that the child support enforcement bureaucracy has consciously chosen to make no attempt to quantify the problem.

1.  The Numbers

The United States Department of Health and Human Services spends approximately $4 billion per year on child support enforcement, sponsors enormous research efforts and demonstration projects, and claims credit for establishing more than one million paternities per year.*⁴⁰  It maintains a huge website.*⁴¹ Nowhere, however, has HHS seriously studied the number of paternity fraud victims. The lack of study is by choice rather than a lack of awareness about the gap in knowledge.  For example, the HHS Inspector General report on paternity establishment issued in April 2000 noted, “We did not attempt in our research to determine the proportion of default paternity orders which were eventually overturned.”*⁴²  The Inspector General Report is one of the few government documents to even acknowledge that false paternity establishments might be worthy of quantification.  The failure to quantify is not for a lack of resources or opportunity.  As noted in an online article, the government:

Crunches the numbers every which way: total child support dollars collected per dollar of total expenditure, average amount collected per case, and so on.  But nowhere does the state bother to count the number of citizens it has wrongfully named as fathers.  The bias is overwhelming, and abuses are inevitable.*⁴³

Finding paternity fraud victims is not hard.  Television host Maury Povich has made a career of bringing scandalous paternity fraud stories to homes across America,*⁴⁴ but the child support bureaucracy has chosen not to quantify or identify them.

The only significant insight into the number of paternity fraud victims comes from the American Associations of Blood Banks which, year after year, reports that approximately 28 percent of all paternity tests exclude the targeted man.*⁴⁵  In California, there were 158,000 default paternity establishments in the year 2000*⁴⁶  If it is assumed that the unwed couples that comprise the great bulk of those default judgments were as monogamous as the average couple undergoing DNA testing, there would be approximately 44,000 false paternity establishments in California from default judgments every year.  In 18 years, that would be almost 800,000 false paternity establishments in California alone.  Default judgments are not the only way of obtaining a false paternity establishment.  Extrapolated to the nation as a whole, and considering all sources of false paternity establishment and considering the 18 to 21-year lifespan of a child support order, an estimate of one million obligor paternity fraud victims in the United States might be unduly conservative.

Regardless of whether the number is one million or one hundred thousand, or “merely” ten thousand, significant numbers of paternity fraud victims obviously exist and are obviously suffering from the burdens imposed by false paternity establishments.  Sadly, there has been no interest in counting them or in identifying them.  Each paternity fraud victim is an embarrassment to the child support bureaucracy.  Each paternity fraud victim is a potential reduction in performance statistics.  Only the victims want to be counted and they do not control the research budgets…...

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I. Ending the Culture and Condonation of Paternity Fraud

The problem of paternity fraud as a serious social issue is a relatively recent creation that follows the increased effort in child support enforcement over the past two decades.  Many unintended consequences have crept into the child support enforcement system.  A system in which arrearages exceed $70 billion and continue to grow despite the expenditure of over $4 billion annually in federal funds and similar amounts in state funds is obviously broken.  Among the problems are high rates of default judgments, orders that are grossly in excess of the obligor’s ability to pay, failure to make modifications during employment interruptions, and paternity fraud.*⁴⁷  Solutions to the paternity fraud crisis are not difficult but the solutions do require an end to the culture and condonation of paternity fraud by agencies and courts.

A. Legislatures

Paternity establishment is a good thing.  Children should know and have the opportunity to form secure, loving relationships with their fathers.  Currently, federal policies create unintended and perverse incentives which foster paternity fraud to the great injury of children and men, as well as great costs in compliance efforts and in loss of public respect for a system that is seen as unjust in wide segments of the affected communities.

The most important change that can be made by the federal government is also the most simple.  For purposes of state compliance with paternity establishment targets and incentive payments, the federal government should count only those paternities that are confirmed by a DNA test.  Congress should also instruct the bureaucracy to count and identify the paternity fraud victims, develop mechanisms for their emancipation, and require procedures to minimize future paternity fraud victimization.

From biblical times until today, generations have been inspired by the simple statement that “the truth shall make you free.”*⁴⁸  The States should abolish all judicial or statutory barriers to the emancipation of paternity fraud victims. States should mandate in-hospital DNA testing for all newborns and should prohibit paternity establishment unless and until confirmed by DNA testing.  After any default judgment, States should require DNA testing immediately upon locating the defendant for garnishment or other enforcement action.  Default judgments should be reduced through improved service of process and understandable pro se procedures.  Finally, sanctions should be imposed upon those guilty of paternity fraud, both when perpetrated by a private individual and when perpetrated by a government employee….. 

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II. Conclusion

Although paternity fraud existed in the pre-DNA era, it has become a mass phenomenon disproportionately affecting low-income minority males as a result of the recent governmental push to obtain welfare cost recoupment through paternity establishments and child support collections.  Fortunately, paternity fraud can be stopped at a cost of less than $100 and conclusive truth can be known through a simple DNA test.

In the past, injustices could occur because we were simply unable to be sure about the identity of the child’s father.  That excuse no longer exists and there is no excuse for continued injustice.