What Constitutes a Parent in the Eyes

Transcription

Tuesday: Breakout Session 5
Workshop B
Time: 2:45 p.m. - 4:00 p.m.
Location: Regency 2
PATERNITY DISESTABLISHMENT: WHAT CONSTITUTES A “PARENT” IN
THE EYES OF THE COURT, THE STATE, AND THE FAMILY? (CLE)
Join an interactive lively discussion about real world issues surrounding what defines the identity of the
term “Parent” from both a legal and social perspective. Beginning with the more traditional model of the
father who tries to dissolve his legal relationship with a child in the face of a negative DNA test, this
workshop explores the differences between how the law treats marital and non-marital children, and the
constitutional problems that arise. Special emphasis will also be given to how states and courts treat
voluntary acknowledgements of parentage, when and under what circumstances genetic testing can be
ordered and paid for by the IV-D agency in light of existing parentage determinations, and public policy
developments in some less traditional cases involving same sex partners, assisted reproduction, and
international cases that may employ religious presumptions of parentage. Summaries of where the states
stand on these issues in terms of their most recent legislative and case law developments will provide the
basis upon which attendees can debate the ethical and social policy implications of the process of
separating the legal bonds between child and “parent.”
Presenters:
Bill Reynolds
Professor
University of Maryland - School of Law
Baltimore, MD
Susan Paikin
Senior Associate
The Center for the Support of Families (CSF)
Newark, DE
Moderator:
Christin Lahiff Semprebon
Staff Attorney
Vermont State Office of Child Support
Springfield, VT
My Notes....
ERICSA 47th Annual Training Conference & Exposition
Lexington, Kentucky ‘10
“When it Comes to
Supporting Children We
Don’t Horse Around!”
1
PATERNITY
DISESTABLISHMENT
(and other Emerging Issues in Paternity
Establishment)
47th ANNUAL ERICSA TRAINING CONFERENCE
May 2010 Lexington, Kentucky
Susan F. Paikin
Center for the Support of Families
spaikin@csfmail.org
Bill Reynolds, Professor
University of Maryland School of Law
wreynolds@law.umaryland.edu
Christin L. Semprebon, Staff Attorney
Vermont Office of Child Support
christin.semprebon@ahs.state.vt.us
When is a Dad,
Who is not a Dad,
a Dad?
Policy Question
Once paternity is legally
established, should a man be
allowed or forced to abandon
his social, emotional and
financial responsibilities to his
child?
4
How is Paternity Legally
Established?
• Marriage
• Voluntary Establishment
• Ruling of the Court
• Evidence Based
• Default
5
What is the Government’s
Interest?
• Constitutional Interest:
Equal treatment of children
• Fiscal Interest:
Government as payor of last
resort
• Legal Interest:
Rule of law
6
Welfare and Child Support
• Child Support Is Major Impetus to
Streamlining the Paternity
Establishment Process
• Voluntary paternity establishment
• Use of emerging technology
• Mandatory default process
• Hugely Successful Effort
• Increase in Paternity Establishment overall
550,000(1993) to 1.8m(2008)
• Increase in Paternity Establishment in IV-D
45%(1993) to 94.9%(2008)
• Increase in Award Establishments
55%(1993) to 79.1%(2008)
7
Downside of Success
• Voluntary paternity
establishment
Good faith acknowledgement
misfires
• Use of emerging technology
DNA testing--a two-edge sword
• Mandatory default process
The courts can be wrong
8
Paternity
Disestablishment
9
Policy Dilemma 1
Some Dads,
who are not Dads,
end up being legal
Dads that are required
to support children who
are not their biological
children.
10
Policy Dilemma 2
Some children
who had a Dad,
end up having no Dad
and lose the emotional,
social and financial
support
from a Dad
11
Why Difficult Policy Call?
• No easy answers
• Interests of different actors
often conflict
• No one “typical case”
• Emotional language used in
the debate – paternity “fraud”
• Intense media attention
12
Policy Considerations
• child well being: emotional, social
and financial
• fairness and justice to the fathers
• fairness and justice to the mother
• social and legal implications of
paternity disestablishment
13
What are the Facts?
• Disputed Paternities
About 25% to 30% not the Dad
• General Population
About 2% to 10% not Dad but
varies by population
14
Current Practices
• Nine states have PD statues
(AL, AZ, GA, IL, IN, GA, MD, OH, VA)
• Free genetic testing offered at
birth (uptake less than 1% in TX
demo)
• Reopen default orders
(small uptake (1400) cases in CA;
MO “redo” now underway)
• Disparate approach to marital and
non-marital children – when must
the “best interest of the child” be
considered
15
Current Practices
•
•
•
•
No allowance for return of paid
child support but relief from
arrears and continued support
Informal corrections of mistakes
of fact (especially when no
father-child relationship)
FFP limited for genetic testing in
disestablishment cases
Interstate contests
16
Competing Legal Presumption
Issues
• Voluntary acknowledgement signed by one father while
child born of marriage between mother and a different
man
• Positive genetic testing completed on someone who is
not the “legal” father, either by marriage or via signed
acknowledgement
• May courts discount acknowledgements? Do genetics
trump legal documents? Should IV-D agencies pay for
genetic testing to resolve competing presumption
conflicts?
• 42 U.S.C. sec. 666(a)(5); 45 C.F.R. 302.70
17
Future Possibilities
• Mandatory Genetic
Testing
• Constitutional Review
• UPA (2002)
18
Further Reading:
www.ncsl.org
www.clasp.org
Bellis, et al
@www.jech.bmjjournals.com
www.aspe.hhs.gov
19
Establishing Paternity in
Same Sex Partner Cases
Why is it Important?
• More than 250,000 children
are being raised by same-sex
couples in the United States
• More and more, courts are
struggling to apply traditional
equitable parentage
principles in same sex partner
cases.
21
Unique Challenges in
Same-sex Partner Cases
• Biological Connection
– May be natural birth mother
– May have donated genetic material (with
intent to raise child jointly)
• Gender-neutral reading of the UPA
– UPA (1973) Section 21 – insofar as practicable,
the provisions of the UPA applicable to the
father-child relationship are also applicable to
the mother-child relationship
– UPA (2002) Section 201(a) clarifies that the
mother-child relationship may be established by:
• Giving birth
• An adjudication of the woman’s maternity
• Adoption
• Valid gestational agreement
22
• Presumed
parent/equitable
adoption/de facto parent
• Pre-birth agreements/coparenting plans
• Domestic partnership
laws
• DOMA
23
• What if 2 “moms” sign a
VAP?
• Is a support order entered
in same-sex partner case
entitled to FFC?
• May a new support order
be entered?
• What is the impact of
UIFSA?
24
• What about support
orders from FRCs or
where foreign order is
requested to be enforced
under state-level
agreement or on the basis
of comity?
25
CASE EXAMPLES:
•
•
•
Matter of Sebastian, 879 N.Y.S.2d 677 (Surr. Ct. N.Y. Co.
2009 (Court grants a second parent adoption to the genetic
mother of a child conceived by donating her ova to be
fertilized by an anonymous sperm donor and carried by her
partner. Given NY’s “evolving jurisprudence of same-sex
relationships, equal protection full faith and credit, and the
effects of DOMA, the only remedy available in NY that would
accord both parents full and unassailable protection was a
second parent adoption.)
Halpern v City of Toronto, 172 O.A.C. 276 (Ontario) [2000]
(The right to same-sex marriage is recognized under the
Canadian Charter of Rights and Freedoms.)
Carol Chambers v Karen Chambers, 2005 Del. Fam. Ct.
LEXIS 1 (Del. Fam. Ct. 1/12/05) (An ex-partner of a lesbian
couple found to be a de facto parent within the meaning of
Delaware child support law, had legally established
visitation rights, and was equitably estopped from refusing
to pay child support.)
26
Further Reading
Paula Roberts, Parentage Case Update: Can a Child
Have Two Mothers, Pub. No. 05-53 at
www.clasp.org/publications/parentage_update_1201
05
Susan F Paikin and William Reynolds, Parentage and
Child Support: Interstate Litigation and Same-Sex
Parents, 26 Delaware Lawyer 26 (Spring 2006)
Can Gay Marriage Strengthen the American Family?
Brookings Institution Briefing 4/1/04,
www.brookings.org/comm/events/20040401.htm
27
Paternity Issues
in Assisted Reproduction
Technology (ART) Cases
ART Cases
• Medical advances and scientific advances
offer multitude of ART technologies ,
where child may be biologically related to
one, both, or neither member of the
couple and may have as many as 6
“parents”
–
–
–
–
–
–
Sperm donor
Egg donor
Gestational mother
Gestational mother’s husband
Intended mother
Intended father
29
ART Cases
• Competing legal theories: societal
need to strengthen the traditional
2-parent family and recognition
that in today’s science and social
structure picking 2 is artificial.
• Fundamental legal presumptions
and genetic identity – does biology
still control?
• Giving birth vs. giving genetic
material
• Intent-based model for ART
parenting presumptions
30
ART Cases
• Some general rules:
– Man who anonymously donates sperm to a
sperm bank is NOT a parent of a child
conceived by ART (though lots of discussion
about breaking the seal of confidentiality)
• But less clear if it is self-help –
informal/known donation
– Husband is obligated to support child born
via artificial insemination (even though parties
do not execute agreement legitimizing child under state
law)
• Also wife can’t contest husband’s paternity
– UPA (2002) – biology does not control (Sec.
702: “A donor is not a parent of a child
conceived by means of assisted reproduction.”)
• Does not apply to children conceived through
sexual intercourse
31
ART Cases
• Canada: Assisted Human
Reproduction Act is federal
legislation that applies across
Canada, regulates a variety of
issues relating to new technologies
and reproduction.
– Goal is to avoid commoditization of
human life by sanctioning practices
such as commercial surrogacy and
commercial egg donation.
– Critics: the issue of who are the legal
parents and who is liable for child
support is not covered by the
legislation (determination of parentage is a
provincial matter)
32
ART Cases
Policy Questions
• How many individuals may serve a
recognized parenting role for a given
child? In multiple parent situations, how
should the different aspects of the
parenting roles be distributed?
• Which should be more determinative of
parental responsibilities and parental
status – the bio-genetic connection or the
intention to become a parent?
• How should the IV-D agency approach
ART cases?
33
Questions??
34
Losing Fatherhood
By RUTH PADAWER
Ruth Padawer is an adjunct professor at Columbia University's Graduate
School of Journalism. Her last article for the magazine was about a dating
site for ''sugar daddies.''
I.
It was in July 2007 when Mike L. asked the Pennsylvania courts to declare
that he was no longer the father of his daughter. For four years, Mike had
known that the girl he had rocked to sleep and danced with across the livingroom floor was not, as they say, ''his.'' The revelation from a DNA test was
devastating and prompted him to leave his wife -- but he had not renounced
their child. He continued to feel that in all the ways that mattered, she was
still his daughter, and he faithfully paid her child support. It was only when he
learned that his ex-wife was about to marry the man who she said actually was
the girl's biological father that Mike flipped. Supporting another man's child
suddenly became unbearable.
Two years after filing the suit that sought to end his paternal rights, Mike is
still irate about the fix he's in. ''I pay child support to a biologically intact
family,'' Mike told me, his voice cracking with incredulity. ''A father and
mother, married, who live with their own child. And I pay support for that
child. How ridiculous is that?''
Yet despite his indignation -- and despite his court filings seeking to end his
obligations as a father -- Mike loves his daughter. Every other weekend, the
11-year-old girl, L., lives in Mike's house in a quiet suburban neighborhood in
Western Pennsylvania. Her bedroom there is decorated to reflect her current
passion: there's a soccer bedspread, soccer curtains and a soccer-ball night
light. On her bed is an Everybody Loves Me pillow covered with transparent
sleeves filled with photos of her and Mike, the man she calls ''Daddy,''
canoeing, fishing and sledding together.
As the two of them prepared breakfast together one Saturday in June, just
after L. finished fifth grade, Mike sang a little ditty about how she was his
favorite daughter. A few minutes later, when he noticed L. sneaking a piece of
raw biscuit dough, he poked her. She looked at him impishly until they both
giggled.
''Just because our relationship started because of someone else's lie,'' he said
later, ''doesn't mean the bond that developed isn't real.'' Still, his love became
entangled with humiliation and outrage, and each child-support payment
stung so much that he felt compelled to take a stand on principle. In doing so,
he also took the small but terrifying risk of losing his child.
Mike's conundrum is increasingly playing out in courts across the country, a
result of political, social and technological shifts. Stricter federal rules have
pressed states to chase down fathers and hold them responsible for children
born outside of marriage, a category that includes 40 percent of all births. At
the same time, DNA tests have become easier, cheaper and more reliable.
Swiping a few cheek cells and paying a couple hundred dollars can answer the
question that has plagued men since the dawn of time: Am I really the father?
One hundred and twenty-two years ago, the playwright August Strindberg
meditated on this quandary. ''The Father'' is the story of a cavalry captain
whose wife hints that he might not be the father of the daughter he adores.
Consumed with doubt, he rages at his wife: ''I have worked and slaved for you,
your child, your mother, your servants . . . because I thought myself the father
of your child. This is the commonest kind of theft, the most brutal slavery. I
have had 17 years of penal servitude and have been innocent.''
Without a biological tie, the captain cries, his paternal love is without
foundation. But even as he laments that his daughter may not be his, the
captain seeks consolation from his childhood nursemaid. With his mind
unraveling, he rests his head in her lap and speaks of the comfort of ''mother''
-- because that was the nursemaid's role, biology notwithstanding.
Strindberg never reveals whether the captain's fears were justified, and
perhaps the answer doesn't matter. As long as the captain believed he had a
biological link to his child, their relationship was meaningful. It is that link, or
perhaps the fear of its absence, that drives men today to DNA tests.
Over the last decade, the number of paternity tests taken every year jumped
64 percent, to more than 400,000. That figure counts only a subset of tests -those that are admissible in court and thus require an unbiased tester and a
documented chain of possession from test site to lab. Other tests are
conducted by men who, like Mike, buy kits from the Internet or at the corner
Rite Aid, swab the inside of their cheeks and that of their putative child's and
mail the samples to a lab. Of course, the men who take the tests already
question their paternity, and for about 30 percent of them, their hunch is
right. Yet as troubled as many of them might be by that news, they are even
more stunned to discover that many judges find it irrelevant. State statutes
and case law vary widely, but most judges conclude that these men must
continue to raise their children -- or at least pay support -- no matter what
their DNA says. The scientific advance that was supposed to offer clarity
instead reveals just how murky society's notions of fatherhood actually are.
When Mike learned that Rob -- the man who had impregnated Mike's wife -would now be the one to make his little girl breakfast and tuck her in at night,
Mike wondered just what the word ''father'' really meant. Was he the father
and Rob the stepfather or the other way around? Most galling to Mike was
that he was expected to subsidize this man's cozy domestic arrangement.
Mike's wages would be garnished because he was the legal father -- even
though, in this case, the biological father had more of the benefits of
fatherhood and none of its obligations. (Neither L.'s mother, Stephanie, nor
Rob agreed to be interviewed for this article. To protect the girl's privacy, the
magazine is withholding the families' surnames and L.'s full first name.)
Even in paternity cases simpler than that of Mike and L., nonbiological fathers
often feel like serial dupes: their wives or girlfriends cheated on them, the
children they thought were theirs aren't and yet they are required to support
children they did not create. Because nothing can be done about the cheating
or the biological revelation, the men focus their indignation on the money.
The urge to withhold every dime, lest it end up easing the mother's life, is hard
to resist. Often the fight isn't really about child support; it's simply a way to
channel rage about the woman's duplicity. Some observers suggest that
insisting these men pay child support will damage rather than fortify the
relationship between father and child that society seeks to preserve. As
Alaska's Supreme Court concluded in a decade-old paternity case, making a
nonbiological father pay ''might itself destroy an otherwise healthy paternal
bond by driving a destructive wedge of bitterness and resentment between the
father and his child.''
Mike did not tell L. that he was asking a court to release him as her legal
father. But when she was 9, he did sit her down in his lap and tell her that,
according to her mother, Rob was her biological father. He said there was a
chance, though small, that the courts or her mom would forbid him to see her.
But if they did, Mike told L., he would fight back.
''For nine years, I thought my dad was my dad,'' L. told me when I met her in
June, as she tried to articulate the confusion she felt two years ago and has felt
ever since. Her favorite movie is ''The Parent Trap,'' a story of two girls who
meet at summer camp and discover they are identical twins, then successfully
plot to bring their parents back together. L.'s life hasn't worked out as neatly.
She remembers the way her stomach hurt and her head felt dizzy when her
dad said he wasn't her real dad, and she remembers crying.
''At first, it made me scared, because if my dad wasn't related to me, then I
was living with someone who wasn't a part of my family, like a stranger,'' she
said. ''I want him always to be my real dad. Because if he's not my dad, then
who is he?''
II.
THERE IS A STRONG cultural imperative that a man should never abandon
his offspring: that a man who impregnates a woman should be responsible for
their child, and that a man who acted as a child's father should continue to
nurture her. But what is the cultural standard when those roles are filled by
two different men? Judges, legislators and policy makers have floundered
trying to reconcile the issues -- a tangle of sex, money, science, betrayal,
abandonment and the competing interests of the child, the biological parents,
the nonbiological father and the state itself. No matter how they decide, the
collateral damage is high because fairness for one party inadvertently violates
fairness for another.
The challenge is to settle on principles that help answer the riddle of who is
the father in each distinct and gut-wrenching situation. In most states,
paternity decisions are governed by centuries-old English common law, the
presumptions of which hold sway, whether or not they're codified: a child
born in a marriage is presumed the product of that union unless the husband
was impotent, sterile or beyond ''the four seas'' when his wife conceived. The
aim was to avoid ''bastardy'' and to preserve family stability -- or at least the
appearance of it.
Judges around the country have interpreted the common law in so many
different ways that what happens in contested-paternity cases depends almost
as much on the state as on the details of the case. Some state-court judges
have let nonbiological fathers off the hook financially, but they are in the
minority. In most states, judges put the interest of the child above that of the
genetic stranger who unwittingly became her father -- and that means
requiring him to pay child support. Some judges have even rebuked
nonbiological fathers for trying to weasel out of their financial obligations.
''The laws should discourage adults from treating children they have parented
as expendable when their adult relationships fall apart,'' Florida's top court
held in a 2007 paternity decision, quoting a law professor. ''It is the adults
who can and should absorb the pain of betrayal rather than inflict additional
betrayal on the involved children.''
In an age of DNA, when biological relationships can be identified with
certainty, it can seem absurd to hew so closely to a centuries-old idea of
paternity. And yet basing paternity decisions solely on genetics places the
nonbiological father's welfare above the child's. Phil Reilly, a lawyer who is
also a clinical geneticist, has been wrestling with the policy implications of
DNA testing for years, and even he is stumped about how society should
manage the problem that men like Mike face. ''We're at a point in our society
where the DNA molecule is ascendant, and it's very much in the public's
consciousness that this is a powerful way to identify relationships,'' Reilly
says. ''Yet at the same time, more people than ever are adopting children,
showing that parents can very much love a child who is not their own. The
difference here for many men is the combination of hurt and rage over the
deceit, the fact that they're twice beaten. I can see both sides of this argument.
As a nation, we're still in search of what the most ethical policy should be.
Every solution is imperfect.''
Once a man has been deemed a father, either because of marriage or because
he has acknowledged paternity (by agreeing to be on the birth certificate, say,
or paying child support), most state courts say he cannot then abandon that
child -- no matter what a DNA test subsequently reveals. In Pennsylvania and
many other states, the only way a nonbiological father can rebut his legal
status as father is if he can prove he was tricked into the role -- a showing of
fraud -- and can demonstrate that upon learning the truth, he immediately
stopped acting as the child's father. In 2003, a Pennsylvania appellate court
bluntly applauded William Doran -- who had been by all accounts a loving
father to his 11-year-old son -- for cutting off ties with the boy once DNA
showed they were not related. The judges found that Doran had been tricked
by his former wife into believing he was the father of their son, and he was
allowed to abandon all paternal obligations.
Courts, of course, deal with paternity cases only when there is a legal dispute.
Many men don't sue because it is expensive or because they suspect they will
lose anyway. And then there are those who never even discover the biological
truth. How many fall in that category is impossible to quantify. The most
extensive and authoritative report, published in Current Anthropology in
2006, analyzed scores of genetic studies. The report concluded that 2 percent
of men with ''high paternity confidence'' -- married men who had every reason
to believe they were their children's father -- were, in fact, not biological
parents. Several studies indicate that the rate appears to be far higher among
unmarried fathers.
Some other number of men discover they are not biological fathers, but
choose to soldier on rather than go to court, unwilling to upset their children
or the relationships they have established. Tanner Pruitt, who owns a small
manufacturing business in Texas, paid child support for seven years after
divorcing his wife. His daughter never looked like him, but it wasn't until she
was 12 that it began to bother him. He told the girl he wanted to check
something in her mouth, quickly swabbed some cheek cells and sent the
samples off to a lab. After the DNA test showed they weren't related, he
contacted a lawyer, figuring the lab results would release him from childsupport payments and justify reimbursement from the biological father. But
the lawyer told Pruitt his only option was to take the matter to court and that
doing so might mean giving up his right to see the girl at all. It might also alert
her to the truth. Pruitt didn't want to chance either possibility, so he stayed
silent and kept paying.
''I spent thousands and thousands of dollars, and it hasn't cost that biological
father a penny, and yeah, I'm angry, but it would have been more harm to her
psychologically than it was worth,'' says Pruitt, who eventually fought for, and
won, full custody. The girl, now 15 years old, recently learned from a relative
that Pruitt is not her biological father. Afterward, Pruitt sat with her on a park
bench, held her hand and told her the saga. ''When it was all over with, she
gave me a big hug and told me I'd always be her daddy,'' he told me. ''Even
though she's not my blood daughter, I was there the day she was born, and
I've been there ever since, so she's my daughter, and as long as she's alive,
she'll always call me Dad.''
Mike's first inkling that something was amiss in his marriage was in 2000,
when he was digging through a closet looking for the source of some mice. He
didn't find any nests, but he did come upon a plastic grocery bag of love letters
to his wife, Stephanie, from her co-worker Rob. Confronted, Stephanie
confessed to a fleeting affair but assured Mike that L., then nearly 3, was his. A
year later, according to Mike's undisputed court testimony, while changing the
sheets, Mike found Rob's photograph tucked under Stephanie's side of the
mattress. Despite Stephanie's assurances that L. was his child, Mike's doubts
haunted him. The marriage deteriorated, and as L. approached her 5th
birthday, Mike asked Stephanie to take a DNA test with him and their child.
They told the girl that all three of them had to take a test for the doctor. Mike
remembers telling her that rolling the swab inside her cheek wouldn't hurt
one bit.
''The day the results came back was the most devastating day of my life,'' Mike
said, beginning to cry as he described opening the envelope from the lab and
reading there was no chance he was L.'s father. ''This little girl,'' he whispered,
his throat tight, ''is not my child. I ran upstairs, locked myself in the bathroom
and cried and dry-heaved for 45 minutes. I felt like my guts were being ripped
out.''
Mike and Stephanie separated immediately. Mike expected Rob to pay L.'s
support and remembers asking Stephanie if Rob would ''step up'' to be L.'s
father. He recalls Stephanie saying no, although Stephanie, in court
documents, denies that such a conversation ever occurred. Mike would later
claim that he agreed to support L. only because her rightful father would not.
After Mike moved out, the lawyers he consulted told him there was no use
contesting paternity: if he denied he was the father, they said, he wouldn't get
to see L. at all, and the state would probably take his money anyway. So when
a clerk at the child-support office handed Mike a form confirming he was the
natural father, he signed. Since then, Mike -- a human-resources analyst for
an equipment manufacturer -- says he has paid $7,500 a year in child support,
child care, camp and medical insurance.
At first, whenever Mike saw Stephanie after the divorce, he felt a stabbing
bitterness, but eventually, he grudgingly accepted the situation. In 2005, he
began dating Lori, a woman he had met at his church and whom he would
later marry. Lori deeply resented the chunk of Mike's salary that went to
another man's child, while she was reduced to clipping coupons. But she
accepted L. They made scrapbooks together, baked scones and pizza and
picked berries at a local farm. Neither Mike nor Lori had any idea Rob was in
L.'s life until 2006, when Stephanie called and said she was marrying him. It
was then that Mike became consumed with resentment. ''The courts insist on
the best interest of the child,'' Mike fumes, ''but it was in the child's best
interest for Stephanie and Rob not to do this in the first place. So why is that
burden all of a sudden put on me?''
A year after Mike learned about Rob and Stephanie's marriage, Lori read an
article in the local newspaper about a paternity case involving Mark Hudson, a
Pennsylvania doctor who discovered he wasn't related to his 11-year-old son.
Like Mike, Hudson had questioned his wife about the child's origins and was
assured he was the father. In Hudson's case, the state appellate court deemed
this misrepresentation fraudulent and dismissed his $1,400-a-month childsupport obligation. Lori showed Mike the article and urged him to file suit.
For the first time, Mike felt he had a chance at being understood. There were,
however, two crucial differences between the cases: Unlike Hudson, Mike had
signed a paternity acknowledgment knowing it was a lie. And unlike Mike,
when Hudson petitioned to end his legal fatherhood, he wholly disengaged
from the child, underscoring for the court that he had stopped acting as the
boy's parent.
This dictate to abruptly sever the bond with a vulnerable child -- to simply
cease reading bedtime stories or cheering at soccer games or wiping away
tears -- sounds coldhearted. But courts in Pennsylvania and many other states
are suspicious of men who claim they were defrauded into serving as father
but who, after discovering the truth, nonetheless continue to behave exactly as
a father would. Looking through the narrow lens of legal reasoning, courts
seem to conclude that these men are perpetuating the fraud and worsening
the child's confusion and pain by prolonging a doomed relationship. In reality,
however, the requirement to cut ties often destroys the relationship by forcing
men to choose between their desire for retribution and their desire to remain
the child's parent.
Hudson chose the former path, though he told me he had hoped his ex-wife
would allow him time with the boy. ''What do you do with that information?''
Hudson says of the DNA results. ''Do you just stick it in your back pocket and
forget about it?'' But if he wanted to maintain that relationship, he was
disappointed. The boy's mother said if Hudson wasn't going to be the father
for financial reasons, he couldn't see the boy either. Court records show she
also told the child his father no longer wanted him. Hudson and his former
wife have another child, a daughter. When he goes to pick her up and tries to
talk to the boy, now nearly 17, Hudson says that the boy turns and walks away.
Mike's enduring attachment to L. became the central question of a hearing
before a family-court magistrate in October 2007. Mike acknowledged that he
continued to act as L.'s father, even after the DNA results, but argued he did
so only because he was conned into believing L.'s genetic father would not
assume responsibility. Stephanie testified, however, that she never claimed
such a thing. The real issue, her attorney, Todd Elliott, told the court, was that
Mike didn't really want to stop being L.'s father.
''Every time he was given a chance to deny paternity, he never did,'' Elliott
said, according to the transcript. ''He signed consent order after consent order
because he wanted to be the father. The testimony here today is that he only
did it because of some philanthropic belief that he wanted to step up. That's
not true. . . . He fought for every other weekend. He fought for having her
overnight on a Wednesday. He fought for having her not be able to leave the
jurisdiction. These aren't things that someone does because they are just
philanthropic. He wants to be the dad; he just doesn't want to pay support.''
Elliott's accusation infuriated Mike, who believed it accurately described Rob,
not him.
The hearing officer was persuaded by Elliott's argument: Mike hadn't been
defrauded into admitting paternity after the DNA tests, and he had hardly
abandoned L. after he learned the truth. Still, the officer ruled, Rob had also
acted ''essentially as a parent.'' During the hearing, Stephanie testified that
Rob was the biological father, and that he and L. loved each other. He had
taken her on vacations to Disney World, Las Vegas and the ocean, celebrated
at her birthday parties, bought her gifts and attended her soccer games and
school activities. As such, the hearing officer ordered, Rob should help pay her
support, too.
Despite being named a defendant in Mike's lawsuit, neither Rob nor any legal
representative for him ever showed up in court or contested the rulings. But
Stephanie did. Her attorney argued in an appeal that parenthood shared by
one mother and two fathers ''would lead to a strange and unworkable
situation.'' So, the lawyer reasoned, Rob should not be forced to help pay for
L.'s care. David Wecht, the state-court judge charged with hearing the appeal,
agreed with Stephanie's conclusions, albeit for different reasons. Pennsylvania
law did not allow for the recognition of two fathers of the same child, he wrote
in his opinion, and thus he could not order two men to pay paternal support.
Wecht concluded that under the law, Mike was L.'s legal father. Fraud is the
only way to rebut the key paternity doctrine, and Wecht, like the hearing
officer, concluded fraud did not induce Mike to continue as L.'s dad after the
DNA results; love did.
In reaching his decision, Wecht looked to a 2006 custody dispute that seemed
weirdly similar to Mike's. A married man named Kevin Moyer learned he was
not the genetic father of his 9-year-old son. Still, when the marriage ended,
Moyer retained partial custody and paid child support. Like Mike's ex-wife,
Moyer's ex-wife, Vicky, subsequently married the son's biological father, a
man named Gary Gresh, who had had little contact with the boy for his first
nine years of life. The child lived primarily with Vicky and Gresh, but when he
was a teenager, he asked to live full time with Moyer, whom he considered his
father. Moyer sought primary custody of the boy. The Greshes fought back,
suing to name Gresh as the legal father instead. The appellate court, however,
ruled in favor of Moyer. Gresh, the judges said, had given up his right to be a
legal father by being entirely absent during the child's first decade. Moyer, on
the other hand, had provided emotional and financial support throughout the
boy's life.
The ruling preoccupied Wecht as he considered the facts in Mike's case. If the
court recognized Moyer's paternal role despite the lack of genetic tie -- and
despite the available biological father -- how could Wecht disregard the role
Mike had played in L.'s life, just because her biological father was now in her
life?
Still, the state of the law frustrated the judge. In his opinion, Wecht wrestled
with how to apply a law that requires deliberately ignoring genetic facts that
are of the utmost importance to the people involved. The law's exasperating
consequence, he wrote, is that the man who ''may very well be the biological
father is able to avoid any direct support obligation'' and the nonbiological
father is left with ''unjust results.''
Although Mike sensed that Wecht understood his predicament, he felt trapped
by the ruling and he appealed, hoping another judge might find him a way
out. When the appellate panel turned him down, Mike brought his plea to the
state's top court. Then he waited.
III.
CARNELL SMITH, an engineer-turned-lobbyist in Georgia, is the leading
advocate for men like Mike. In 2001, after Smith's own paternity struggle, he
formed U.S. Citizens Against Paternity Fraud, to help the men he calls ''duped
dads.'' In his most notable success, Smith persuaded Georgia lawmakers to
rescind nonbiological fathers' financial obligations, no matter the child's age
or how close the relationship. Smith then became the first man to disestablish
paternity under that law.
Smith's movement was spurred by federal welfare reform in the mid-1990s
that pressured states to track down the fathers of children born out of wedlock
and make them accountable. Congress demanded that states find fathers for
at least 90 percent of those kids, arguing that connecting a child to her father
would improve the child's emotional well-being. Identifying a man to tap for
child support in welfare cases would also reduce government spending. The
law required paternity-acknowledgment forms to be distributed at every birth
by an unwed mother. It did not require states to offer genetic testing before
those forms were signed, but most of the forms do note that genetic testing is
available. Advocates on both sides of the issue, however, say nearly all men
sign the form without undergoing testing. Sometimes they believe they are the
father; sometimes they don't understand what they're signing; sometimes they
hesitate to question a girlfriend's fidelity right after she's given birth; and
sometimes they sign knowing full well the child isn't theirs. If the putative
father isn't at the birth and the unwed mother is on welfare or seeking child
support, she must identify the man she thinks is the father. He is then served
with legal papers. If he doesn't respond, judges usually name him the father
by default.
The policy changes have been a huge success: the number of out-of-wedlock
births with established paternity has more than tripled in the last 15 years,
reaching 1.8 million in 2008. But as that figure swelled, so did the number of
men who started having doubts. What if, they asked, the child wasn't really
theirs? New, easy-to-use technology provided them with the means to an
answer. As Identigene, a paternity-testing company, says in its marketing
material, ''Putting your mind at ease has never been more convenient,
affordable or accurate.''
With the scientific proof in hand, men like Carnell Smith began fighting back.
A few months after Smith split up with his girlfriend in 1988, she announced
she was pregnant with his child. Believing her, he signed a paternity
acknowledgment for their daughter, Chandria. He obtained joint custody,
paid her support and spent virtually every weekend with his little girl. When
Chandria was 11, her mother sued to increase support. Smith decided to be
tested, and the results excluded him as the father. In a lawsuit, Smith
demanded Chandria's mother pay back the $40,000 he had laid out in what
he calls ''involuntary servitude'' and fraud. The court ruled against Smith,
concluding that he had known that his former girlfriend had other partners at
the end of their relationship and should have realized he might not be the
father. By not exercising his ''due diligence'' and getting a DNA test early on,
the court put the burden on Smith for not unearthing the truth sooner.
The law that Smith helped to pass in Georgia, like a similar one in Ohio, sets
no time limit on using DNA to challenge paternity. The premise is that a man
shouldn't be punished for entering a paternal relationship that he would have
avoided had he known the truth. It is, Smith says, a correction to a double
standard that allows mothers and caseworkers to use DNA to prove paternity
but prohibits men from using that same evidence to escape its obligations. But
child-welfare experts counter that a child shouldn't be punished by losing the
only father she has ever known -- or the financial security he offers -- just
because he's upset that she doesn't share his genes. In 2002 the National
Conference of Commissioners on Uniform State Laws -- an influential body of
lawyers and judges that proposes model laws -- drafted a compromise. The
proposal would allow the presumed father, the biological father or the mother
to challenge the paternity until a child turns 2. The proposal had two goals: to
balance the rights of children with those of their presumed fathers and to
encourage parentage questions to be raised early in a child's life, before deep
bonds are formed. Several states, including Delaware, North Dakota,
Oklahoma, Texas, Utah, Washington and Wyoming, have adopted that model
or a variation of it. But men's rights groups complain that most putative
fathers don't discover the child isn't theirs until after the two-year window
closes -- at which point, they have little or no recourse.
The last time Smith saw his one-time daughter was nine years ago, when she
was 11. His outrage at Chandria's mother and the system remains close to the
surface. ''We're penalized for trusting our wives or girlfriends!'' Smith seethed
to me. He has long since lost track of Chandria. It is as if she ceased to exist
once their biological connection evaporated.
Chandria, however, has not forgotten Smith. Her memories of her 11 years
with him are happy ones, which makes what happened afterward so hard for
her to grasp. As Chandria, who is now 20, remembers it, Smith just
disappeared from her life. ''I was just a kid, so I didn't really understand what
happened or why,'' she said. ''He never did explain why he didn't want
anything to do with me anymore.'' Chandria says he wouldn't answer when
she called him at home, or he would promise to call back but never did. Smith
says he doesn't recall Chandria calling him.
She stopped seeing friends and holed up in the bathroom, scratching and
picking at her skin until it bled. The more it hurt, she told me, the calmer she
felt. Her hair started to fall out, her grades slipped and she had trouble
sleeping, details her mother and her mother's lawyer at the time corroborated.
Chandria received counseling at her school and privately for years.
''It kind of wrecked my self-esteem,'' she says. ''Even now, I worry about being
a burden on people. I don't want to be in the way. I don't want to be anybody's
problem. It's made me apprehensive about getting attached to people, because
one day they're there and the next day maybe they won't be. You can't help but
be careful.''
Chandria now attends college in Georgia. She has seen Carnell Smith on the
local news and on the Internet and cannot reconcile the man who seems to her
so insensitive with the father she knew: attentive, seemingly proud of their
relationship and eager to spend time with her. ''He was what a father was
supposed to be,'' she says, ''but when things changed, he completely
disconnected. That's just not fair. You've been in my life my entire life and for
you to just cut that off for money, well, that's not fair to anybody.''
Child-welfare advocates say that making biology the sole determinant of
paternity in cases like Smith's puts the nonbiological father's interest above
the child's. Besides, society has increasingly recognized that parenthood is not
necessarily bound to genetics. Reproductive technology has made it possible
for one person to supply an egg, another to fertilize it, a third to gestate it and
a fourth and fifth to be deemed the parents. Stepparents, grandparents and
same-sex co-parents are increasingly winning legally protected access to
children whom they helped raise, even when no direct genetic link exists.
''Having been involved in cases like these, I think the answer to 'Is it my kid?'
is irrationally important to the cuckolded husband,'' says Carol McCarthy, an
officer of the Pennsylvania chapter of the American Academy of Matrimonial
Lawyers. ''My own biases are going into this because I'm adopted, so I'm real
into 'your parents are the people who raise you.' I couldn't care less who my
biological parents are. My parents are the ones who went through all the crap
I gave them growing up.''
IV.
WHY IS IT THAT we imbue genetic relationships with a potency that borders
on magic? How many among us have trolled through genealogy records in
search of unknown relatives or have welcomed strangers into our homes and
hearts in instant intimacy simply because a genetic connection is suddenly
revealed? Grandpa Harry's older brother's grandchild just found us on the
Internet! A lovely man! Let's have him over for dinner! The emotional
connection between newly discovered kin is trenchant because we believe the
genetic link to be significant, allowing us to embrace a stranger who -- if that
tie were lacking -- we would never otherwise blindly accept. But what happens
when we believe a tie exists, as Mike did, and then discover it doesn't? If
betrayal and money are taken out of the equation, would everything look
different?
Denny Ogden has thought a lot about these questions. He was 54 when he got
a phone call from a woman saying she was his daughter. As a college junior,
Ogden had an intense summer romance; that September, the woman told him
she was pregnant and planned to give up their baby for adoption. The day the
baby was born, Ogden called his old flame from a pay phone on campus and
listened, distraught, as she described the beautiful baby girl she knew she
needed to give away. He felt confused and guilt-ridden.
In the 34 years that followed, Ogden only rarely thought about that little girl.
He married, had three kids and settled into a comfortable life in Connecticut,
telling his secret to no one, not even his wife. The three times that his wife
gave birth, he felt swoony and in love with their creations, and as he examined
each baby's tiny toes and fingers, he wondered fleetingly how that other girl,
by then a teenager, had turned out.
But then the phone rang, and a woman named D'Arcy Griggs said she was
calling from Seattle to say she was his daughter. Her birth mother had died of
cancer, but Griggs had met the mother's family, who in turn had led her to
Ogden, and no, she wasn't after his money. Shaken, Ogden called his lawyer.
He also ran a background check on Griggs and her husband, a prominent
surgeon, to make sure Griggs's tale held together. It did. Ogden told the whole
story to his shocked wife, and over the next several months, Ogden and Griggs
exchanged hundreds of e-mail messages, phone calls and photos, quizzing
each other on intimate medical histories and marveling at how similar their
coloring was, their love of adventure (she's a skydiver; he's a private pilot) and
their distaste for green peppers and Spanish class. He took to calling Griggs
''honey'' and slid her photo under his desk blotter at work, alongside those of
his other children.
Two months after their first talk, Ogden flew to Seattle to meet her. He and
Griggs spent four days, morning to night, catching up on 34 lost years, staring
in the mirror side by side, comparing noses and ears and hair. ''For the first
time in my life, I felt like I totally fit, as if we shared the same personality,''
Griggs says.
Ogden was so reluctant to leave that he even stayed an extra day. As they
prepared to part, one or the other of them (their memories are fuzzy on this
detail) pointed out that they couldn't be sure they were related unless they had
a DNA test, so they found a lab through the Yellow Pages and were tested.
Both felt certain it would confirm what they already felt to be true.
When the news came back that Ogden wasn't the father, he was crushed. ''It
broke my heart,'' he said. ''We talked to each other and cried, and I even called
the testing lab to say, 'Are you really sure?' '' As confused as Ogden had been
about how to become a father to a 34-year-old stranger, he was even more
confused about how to stop being a father to a 34-year-old daughter he had
quickly come to love.
Griggs was devastated, too. Her biological mother was dead, and she had lost
the man she thought was her father. She sobbed for days. Even seven years
later, she cried as she recalled it: ''I had finally found a connection, a family I
belonged to, and then I thought it was gone. But he didn't go away. I think of
him as my 'almost dad.' I call him before I call anyone else in my family
whenever I'm upset. When I was going through my divorce, we talked three,
four, five times a day for weeks.
''If we had met on the ski slopes or at an airport, we might have hit it off as
friends, but the fact that we believed we truly belonged to each other is why we
loved each other right away like we did,'' she told me. Griggs is no longer
interested in finding her true biological father. For her, Ogden is enough. On
each Father's Day, she sends him a card and scrawls across the top, ''I wish.''
Many of Ogden's friends and family don't understand why he and Griggs
remained close after discovering they were biological strangers. ''They don't
get the whole idea that believing you're genetically connected makes
something happen between people,'' Ogden said. ''All the emotions and
feelings were there because we were convinced we were linked. I had
committed myself to this child, and when I found out she wasn't my child,
how could I just step away?''
V.
IN LATE JUNE, Pennsylvania's highest court announced it would not
consider Mike's appeal. That left Wecht's decision intact: Mike was the legal
father and the sole man responsible for L.'s support. ''It all could have been
avoided from the beginning if she'd just told the truth,'' Mike said of his
former wife after the decision was handed down, ''if she hadn't led us to
believe we were father and daughter, if she had just told me after she got
pregnant that it might not be my kid.''
Three and a half years earlier, at a federally convened symposium on the
increase in paternity questions, a roomful of child-welfare researchers, legal
experts, academics and government administrators agreed that much pain
could be avoided if paternity was accurately established in a baby's first days.
Several suggested that DNA paternity tests should be routine at birth, or at
least before every paternity acknowledgment is signed and every default order
entered. In 2001 the Massachusetts Supreme Judicial Court urged the state to
require that putative fathers submit to genetic testing before signing a
paternity-acknowledgment form or child-support agreement, arguing that ''to
do otherwise places at risk the well-being of children.''
In other words, the same care that hospitals take ensuring that the right
mother is connected to the right newborn -- footprints, matching ID bands,
guarded nurseries, surveillance cameras -- should be taken to verify that the
right man is deemed father.
Mandatory DNA testing for everyone would be a radical, not to mention
costly, shift in policy. Some advocates propose a somewhat more practical
solution: that men who waive the DNA test at a child's birth should be
informed quite clearly that refusing the test will prohibit them from
challenging paternity later. Yes, the plan would reveal truths some men might
not want to know. Yes, it would raise administrative costs, lower the number
of paternity establishments and blow apart some families. But far fewer
children would be entangled in traumatic disputes in which men they call
Daddy suddenly reject them.
In the meantime, maybe the solution is to accept that lives can be messy and
relationships much more complicated than the law would like. Several judges
in Pennsylvania, including David Wecht, who heard Mike's case, have used
their paternity rulings as a platform to urge the Legislature or top state court
to grant them the discretion to consider DNA. It is evidence, they say, that
should be neither exalted nor ignored, but rather weighed as one of many
factors, along with the history of the relationship and the child's age, in
determining who should raise a child and who should pay for his or her
upkeep. In other words, maybe a nonbiological father could be granted
custody rights even if the biological father is charged with paying support. A
small but growing number of courts in other states have gone this route, but
such arrangements are still rare. ''There shouldn't be any reason why custody
couldn't be treated differently than paternity and support, each looked at on
its own merits,'' Wecht says. ''But many states, including Pennsylvania,
haven't begun to grapple with these issues yet. They are exceedingly complex,
intellectually and legally, and perhaps most significantly, the issues are hotly
disputed politically.''
VI.
L. SAYS SHE wishes her parents, Mike and Stephanie, had taken a DNA test
when she was a baby instead of waiting until she had a firm -- but inaccurate - sense of who her biological father was. It's not that she wishes Mike hadn't
turned out to be her dad; it's that, having had Mike as her dad for so long, she
can't bear that he turned out not to be her father.
As Mike's case wended its way through the courts, Mike asked L. to take
another DNA test, this one with witnesses. He knew the appellate court was
unlikely even to consider DNA evidence, but if it did, he wanted to make sure
the veracity of his test results would not be questioned. L. wavered. Why help
him prove he wasn't her dad? ''I didn't really want to be reminded of that,'' L.
said.
Eventually, she yielded, and the test confirmed she was not Mike's biological
daughter. She was disappointed. She had been secretly nursing a fantasy that
provided her own ''Parent Trap'' ending. ''I got a picture in my head,'' L. said,
''that the test people would call and say they had been wrong, that he really
was my biological dad and that everything I had thought before never really
happened.''
Images: PHOTOS: Mike L., holding an owl that belongs to his daughter, still
pays child support even though his ex-wife married the girl's biological father.
(pg.MM39); THE LOBBYIST: Carnell Smith, after his own paternity struggle,
persuaded the Georgia Legislature to rescind the financial obligations of
nonbiological fathers. (pg.MM42); FATHERLY INSTINCT: Tanner Pruitt,
holding a panda that belongs to the girl he helped raise, chose to keep paying
child support rather than risk hurting her. (PHOTOGRAPHS BY HORACIO
SALINAS FOR THE NEW YORK TIMES) (pg.MM44)
Copyright 2009 The New York Times Company
Reprinted with permission.
Downloaded from jech.bmjjournals.com on 15 August 2005
Measuring paternal discrepancy and its public
health consequences
Mark A Bellis, Karen Hughes, Sara Hughes and John R Ashton
J. Epidemiol. Community Health 2005;59;749-754
doi:10.1136/jech.2005.036517
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749
REVIEW
Measuring paternal discrepancy and its public health
consequences
Mark A Bellis, Karen Hughes, Sara Hughes, John R Ashton
...............................................................................................................................
J Epidemiol Community Health 2005;59:749–754. doi: 10.1136/jech.2005.036517
Paternal discrepancy (PD) occurs when a child is identified
as being biologically fathered by someone other than the
man who believes he is the father. This paper examines
published evidence on levels of PD and its public health
consequences. Rates vary between studies from 0.8% to
30% (median 3.7%, n = 17). Using information from
genetic and behavioural studies, the article identifies those
who conceive younger, live in deprivation, are in long term
relationships (rather than marriages), or in certain cultural
groups are at higher risk. Public health consequences of PD
being exposed include family break up and violence.
However, leaving PD undiagnosed means cases having
incorrect information on their genetics and fathers
continuing to suspect that children may not be theirs.
Increasing paternity testing and use of DNA techniques in
clinical and judicial procedures means more cases of PD
will be identified. Given developing roles for individual’s
genetics in decisions made by health services, private
services (for example, insurance), and even in personal
lifestyle decisions, the dearth of intelligence on how and
when PD should be exposed urgently needs addressing.
...........................................................................
F
See end of article for
authors’ affiliations
.......................
Correspondence to:
Professor M A Bellis,
Centre for Public Health,
Faculty of Health and
Applied Social Sciences,
Liverpool John Moores
University, Castle House,
North Street, Liverpool L3
2AY, UK; m.a.bellis@livjm.
ac.uk
Accepted for publication
22 June 2005
.......................
or any father, identifying that the child they
are raising as their biological progeny is
actually sired by another man (paternal
discrepancy (PD)) can have substantial health
consequences. Such knowledge can also destroy
families;1 affecting the health of the child and
mother as well as that of any man who is
ultimately identified as the biological parent.2
Typically, PD is associated with a woman having
a sexual relationship (usually covertly) outside of
her marriage or long term partnership. Here PD
occurs when a child is believed to have been
fathered by the husband (or partner) but is
actually the progeny of another man. Pregnancy
may be accidental but occasionally may be the
reason for infidelity (for example, where sex
with the long term partner has not produced
children a woman might seek conception elsewhere3). PD also occurs without infidelity. Where
a woman quickly changes from one sexual
relationship to another, a pregnancy resulting
from a previous partner can be wrongly attributed to a new partner. Rarely, PD occurs because
of medical mistakes including mix ups of semen
during artificial insemination and in vitro fertilisation.4
Increased understanding of human genetics5
and, more recently, widespread public access to
genetic identification techniques now means
that almost anyone can establish the biological
parentage of their children.6 7 Moreover, along
with an increase in parentage testing8 health
services now use genetic techniques in diagnosis9
and treatment,10 with criminal justice organisations also using genetic techniques in crime
detection.11 Such techniques can inadvertently
uncover inconsistencies in a family’s genetics
that disclose PD.12 However, while the opportunity to expose PD through paternity testing or
routine health and judicial procedures has
increased, little consideration has been given to
the consequences. Here, we collate existing
evidence on the prevalence of PD, review how
increasing use of genetic techniques will continue to reveal more cases, and examine the
public health consequences of people having
greater need for, and access to, such knowledge.
METHODS
Titles and abstracts of peer reviewed scientific
literature (PubMed 1950–2004 including Medline 1966–2004, BIDS International Bibliography
of the Social Sciences 1951–2004, PsychINFO
1887–2004) were interrogated for references to
the prevalence of PD, mechanisms for its detection, and the potential health consequences of
PD being exposed. The key search terms used
were: nonpatern*; non and patern*; and father
matched with discrepancy, uncertainty, misattributed, false and investment. Peer reviewed
papers were supplemented by reports from
conference abstracts, books, and other scientific
reports (table 1). As relevant literature was not
associated with any particular journals hand
searching13 was not undertaken on any journal’s
entire contents but references listed within all
identified literature were examined for additional relevant papers. Using all available data
we used discursive qualitative techniques to
assess the evidence for PD. Thus, all papers were
examined separately by two authors for references to PD, sampling characteristics, methodology for identification of PD, and potential bias
inherent in studies that have measured PD but
usually not been designed for that purpose (see
table 1). Where authors’ classifications conflicted
this was resolved by a third author examining
the document.
Literature reviews and, where necessary, original research literature were also examined to
Abbreviations: PD, paternal discrepancy; STI, sexually
transmitted infection
www.jech.com
750
identify developments in the use of DNA techniques that
have disclosed or could potentially disclose PD. Finally,
although few publications deal with how demographics may
affect levels of PD and we found no papers dealing directly
with how exposing PD could affect health, we use a
combination of extensive literature reviews and original
research literature on sexual behaviour and the health
correlates of different social structures to address each issue
respectively.
RESULTS
How common is paternal discrepancy?
Few studies have been undertaken specifically to estimate
population levels of PD14 and most evidence is based on data
collected for other purposes (table 1). Historically, comparisons of family members’ blood groups (ABO and rhesus)
either collected for blood donation or for other purposes
provided some estimates of PD (table 1). More recently,
investigations of familial patterns of disease inheritance have
identified PD15 and led to further estimates of its prevalence
(table 1). An additional source of estimates results from
commercial and public organisations offering tests to fathers
who already suspect PD (table 1). Such studies are no
substitute for population surveys and contain biases that
either exaggerate or underestimate population levels of PD.
Thus, PD estimates based on men or women seeking proof of
paternity can overestimate levels of PD where paternal
uncertainty was usually the motivation for testing. In
contrast, estimates based on genetic health screening and
other studies (where confirming paternity was not the
objective) may underestimate PD as people can refuse to
participate or are excluded15 when subjects or investigators
consider paternity in doubt. Estimates can also include
anomalies that seem to be PD but result from other social
phenomenon. Thus, people may adopt a child or conceive
through AID (artificial insemination by donor) but keep such
information hidden. Equally, friends or relatives occasionally
raise a child as theirs when the mother is too young, unwell,
considered inappropriate, or has abandoned the child.16
Historical blood type data or even modern data identifying
relatives of natural disaster and terrorist attack fatalities17 18
can include such anomalies unless family histories are
available. Here, to estimate population levels of PD we have
included all identified published estimates of PD except
where they do not include at least basic methodological
details and sample sizes or are based on historical data over
multiple generations.19 20 We have also excluded estimates
derived solely from behavioural studies that have not
included biomolecular marker testing (table 1). For the
remaining studies we examine two types of PD rates. For
disputed paternity tests median levels of PD across 16 studies
is 26.9% (interquartile range (IQR) = 16.7%–33.4%).
However, being based on cases where PD was already
suspected this inevitably overestimates population levels
(table 1). For studies based on populations chosen for
reasons other than disputed paternity (table 1) median PD
is 3.7% (IQR = 2.0%–9.6%). While this is not a measure of
population prevalence it does suggest the widely used (but
unsubstantiated) figure of 10% PD21 may be an overestimate
for most populations.
Who will PD affect most?
While few studies have measured demographic effects on
levels of PD, higher rates have been found among people
from lower socioeconomic groups.14 Furthermore, existing
data on sexual behaviour permit some measure of those
populations most at risk.22 23 Increased risk of PD is seen
among people with concurrent sexual partners. As having
concurrent sexual partners occurs more at earlier ages,
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Bellis, Hughes, Hughes, et al
younger women are at highest risk (for example, British
women with concurrent sexual partners in past 12 months;
16–24 years = 15.2%, 25–34 years = 7.6%22). Prevalence of
women with concurrent partners has increased over the past
decade (for example, Britain22). Consequently, girls who
conceive at early ages may have greater chances of PD with
first pregnancies having been shown to be at higher risk.24
One in five women in marriages or long term relationships in
the UK have had affairs and similar figures are reported from
most developed countries.25 However, higher rates of infidelity are seen among pairs who are not married.26
Furthermore, time spent apart in marriages or long term
relationships (for example, through occupational travel) is
also associated with higher levels of infidelity as is living in
higher population densities.27 Sexual risk taking (measured
for instance by levels of sexually transmitted infections
(STIs)) has also been associated with higher levels of
deprivation as well as ethnic and cultural issues.28 29 Thus,
in the USA, African Americans’ rates of gonorrhoea can be 20
times higher than their white counterparts,30 while Hispanic
adolescents have birth rates 2.9 times those of non-Hispanic
white adolescents.31 Studies in the UK also show similar
ethnic differences in sexual risk29 and limited analyses of PD
suggest higher rates among some ethnic groups.32 Thus,
ethnicity as well as lower socioeconomic class,14 younger age,
and higher levels of deprivation seem to be risk factors for
both PD as well as other sexual health issues (for example,
teenage pregnancy and STIs33).
Increases in techniques that identify PD
Genetic techniques are becoming increasingly central to
modern medicine. Both the number of conditions thought to
be related to a person’s genetics (for example, cystic fibrosis34;
coronary heart disease35; cancer36; obesity37) and the number
of DNA molecular tests undertaken continues to increase
(UK9). The role of genetics will increase as more diseases
are related to genetic predispositions5 and treatments
become tailored to a patient’s genome.38 Often, genetic
screening can be triggered by a child, parent, or other relative
developing a genetic disease and consequently, many family
members will be screened to determine who else is at
risk and the exact nature of the genetics.39 Such tests are
essential for clinicians and patients to make vital decisions
regarding lifestyle,40 terminations of pregnancy,41 whether
to conceive at all and types of treatment42 but will also
identify PD. In these circumstances, there are clear advantages to patients understanding their actual genetic inheritance, in particular in allowing them to rule out genetic
conditions experienced by their social father and instead
take into account those relating to their biological father.
Equally for health professionals in general, measuring PD is
essential to understanding the genetics of health and ill
health43 with discounted PD confusing estimates of heritability and potentially inhibiting development of genome
based interventions.
Two further expanding health areas also expose PD. Organ
donation, particularly when close family is screened for
potential donors, can identify PD (for example, kidney
donation44). Equally, examination of male fertility can
identify people who are infertile and unlikely to have ever
been fertile. PD is exposed when this diagnosis occurs in
families where the husband (or long term partner) already
believes he has fathered one or more children.45
Criminal investigations increasingly rely on DNA techniques to identify culprits and important investments have
been made to develop DNA databases of criminals (for
example, the National DNA Database, UK46). Such databases
have already been used to identify relatives of criminal
offenders47 and consequently have the potential to expose
2578
67
1417
523
6960
200
132
2839
300
1983
217
521
362
25
1607
396
744
2708
285
Southern English families
Undisputed paternity tests
Michigan white sample
Michigan black sample
Californian white sample
Southern English families
Yanomama tribe
Hawaiian families
Screening and paternity tests
Tokelau families
Families with new borns
Cystic fibrosis screening
Genetic screening (various)
Haemophilia B screening
Cystic fibrosis/bone marrow screening
Nuevo Leon new borns
Multiple sclerosis screening
Magazine readers
College undergraduates
(22.7 to 35.3)
(24.7 to 27.5)
(23.8 to 27.2)
(23.5 to 28.1)
(15.0 to 54.2)
(36.1 to 40.3)
(14.9 to 18.4)
(2.1 to 26.5)
(12.2 to 21.4)
(37.2 to 70.9)
(33.6 to 40.5)
(0 to 30.6)
(12.5 to 13.5)
(17.9 to 37.5)
(26.6 to 32.9)
(28.9 to 29.3)
6.9 to 13.8
13.0 to 20.0
3.7 (3.0 to 4.4)
18.0 (8.5 to 27.3)
1.4 (0.8 to 2.0)
10.1 (7.5 to 12.7)
2.7 (2.3 to 3.1)
30.0 (23.6 to 36.4)
9.0 (4.1 to 14.1)
2.3 (1.7 to 2.8)
7.0 (4.1 to 9.9)
4.0 (3.1 to 4.9)
2.9 (0.6 to 5.0)
1.4 (0.4 to 2.3)
2.8 (1.1 to 4.5)
4.0 (0 to 12.3)
0.8 (0.4 to 1.3)
11.8 (8.7 to 15.1)
1.6 (0.7 to 2.5)
29.0
26.1
25.5
25.8
34.6
38.2
16.6
15.2
16.8
53.0
37.0
14.0
13.0
27.7
29.8
29.1
PD estimate %
(95% CIs)
markers
markers
markers
markers
markers
markers
markers
markers
markers
markers
markers
markers
markers
markers
markers
markers
markers
Behaviour based estimate
Behaviour based estimate
Blood and other
Blood and other
Blood and other
Blood and other
Blood and other
Blood and other
Blood and other
Blood and other
Blood and other
Blood and other
Blood and other
DNA testing
DNA testing
DNA testing
Mixed methods
Blood and other
DNA testing
Blood and other
Blood and other
Blood and other
Blood and other
DNA testing
Blood and other
DNA testing
DNA testing
DNA testing
DNA testing
DNA testing
DNA testing
DNA testing
DNA testing
DNA testing
Mixed methods
Method`
sample composition (+)
not known
not known
not known
not known
not known
not known
poor test sensitivity (2)
not known
non-participation in sample (2)
some suspected non-paternity (+)
not known
not known
not known
suspected non-paternity (+)
Bias1
Bellis and Baker 199088
Gaulin et al, 199789
Edwards, 195774
75
Sussman and Schatkin, 1957
Schacht and Gershowitz, 196376
76
Schacht and Gershowitz, 1963
77
Peritz and Rust, 1972
Philipp, 197378
79
Neel and Weiss, 1975
Ashton, 198080
Salmon et al, 198081
82
Lathrop et al, 1983
Peñaloza, 198683
Brock and Shrimpton, 199115
84
Le Roux et al, 1992
Poon et al, 199385
86
Sasse et al, 1994
14
Cerda-Flores et al, 1999
Chataway et al, 199987
Marsters, 195762
63
Valentin, 1980
64
Houtz et al, 1982
Mickey et al, 198665
66
Helminen et al, 1988
32
Du Toit et al, 1989
Jeffreys et al, 199167
68
Helminen et al, 1992
Krawczak et al, 199369
Strom et al, 199670
70
Strom et al, 1996
Molyaka et al, 199771
72
Boardman F, 1998
73
Geada et al, 2000
Geada et al, 200073
48
American Association of Blood Banks, 2002
Reference
* All populations in ‘‘other testing’’ are after birth. CI, confidence intervals. 95%CIs were not included in most papers reporting levels of PD. Here, we have calculated all confidence intervals based on the sample size and percentage included in
the table. However, this does not take into account sampling and other methodological variations between studies. 95%CIs have not been calculated for behaviour based estimates as these have been published as ranges. ` Blood and other
markers methods usually rely on ABO and rhesus blood groupings or human leucocyte antigen differences. In studies using these methodologies calculations of PD prevalence often include a corrective factor to account for discrepancies that
remain undetected. With DNA tests polymerase chain reaction and restriction fragment length polymorphism are commonly used and PD detection rates are usually sensitive enough to require little or no correction. 1 Bias is identified as
(+) = likely to overestimate PD and (2) = likely to underestimate PD. All disputed paternity testing is likely to recruit individuals who already suspect PD and results exaggerate population levels. Genetic screening for health reasons is likely to be
avoided by those concerned that PD will be exposed and consequently may underestimate PD. Not known is entered next to studies where direction of any bias is unclear. Behaviour based estimates rely on questionnaires rather than
biomolecular markers to estimate PD.
200
3913
2500
1393
26
2124
1702
35
256
37
753
21
16122
83
790
310490
Sample
Size
After birth
After birth
After birth
After birth
After birth
After birth
After birth
After birth
After birth
Prenatal
After birth
After birth
After birth
After birth
After birth
After birth
Population*
Summary of studies providing measures of paternal discrepancy stratified into disputed paternity tests and those undertaken for other reasons
Disputed paternity testing
USA
Sweden
USA
USA
Finland
South Africa
Mostly UK
Finland
Germany
USA
USA
Russia
UK
Portugal
Portugal
USA and European
Other testing
UK
USA
USA
USA
USA
UK
South America
USA
France
New Zealand
Mexico
UK
France
Canada
Switzerland
Mexico
UK
Behavioural estimates
UK
USA
Country
Table 1
Paternal discrepancy and public health
751
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752
Policy implications
What this paper adds
N
N
N
N
N
N
As advances in genetic techniques allow paternal
discrepancy to be identified, clear guidance is
necessary on when and how it is disclosed.
Individual and family support services need to be
integrated into the paternity testing service and
supported by appropriate training.
Sufficient evidence is already available to suggest
paternal discrepancy affects the health of many people.
Appropriately designed studies are now required to
accurately measure its demographics and quantify its
direct and indirect costs.
Health and judicial procedures that can identify
paternal discrepancy should have guidance on when
and how paternal discrepancy should be exposed and
such guidance should be publicly available.
unexpected anomalies including PD. Furthermore, both
health and judicial systems increasingly rely on genetic
testing in major disasters (for example, environmental
catastrophes and terrorist attacks) to confirm the identity
of those who may have perished; especially where bodies
have been damaged beyond recognition.17 18 Here, genetic
sampling can expose PD where DNA results (matched to a
parent, child, or other relative) conflict with other evidence
(for example, clothing, jewellery found on corpses).
By far the most common means available for most people
to test PD is through use of commercial testing kits with
multiple web sites already advertising this service. People
(usually concerned fathers) visit a clinic or send off for a
testing kit and provide samples (cheek swabs, hair follicle
samples) from themselves and the child for testing.6 The
number of tests undertaken annually continues to increase
(USA, 1991 = 142 000, 2001 = 310 49048). Although some
countries are considering changing legislation to try to stop
fathers testing children without the permission of the
mother, such legislation is unlikely to affect testing patterns
as using services based abroad is comparatively simple.
Public health consequences of PD
Despite increasing use of, and access to, techniques that can
identify PD, very little consideration has been given to the
consequences of a family becoming aware of PD or what
services and support are required when PD is exposed.
Furthermore, even when PD is inadvertently identified by
public agencies, a public health perspective is necessary to
assess how such information should be used and if and when
those affected should be informed.
A 4% PD would affect far more than 1 in 25 families. Given
an average of two children per family, more families will be
affected within just a single generation; although it is
probable that PD will cluster in some family groups.25
Typically however, many families have three or more living
generations. Consequently, the proportion of families
affected will increase further when other relationships (for
example, between parents and grandparents) are also
considered.
In addition, for each child resulting from PD there is also a
biological father elsewhere and such people are often part of
other long term relationships involving marriages and
children.49
An important consequence of discovering infidelity in a
marriage or other relationship is the eventual breakdown of
that partnership.50 Around 20% of divorces feature claims of
infidelity by one or both partners (England and Wales51). The
www.jech.com
N
N
Provides a broad review of paternal discrepancy rates
and population characteristics related to its prevalence.
Reviews the new methodologies used by health and
judicial systems that have increased the likelihood of
detecting paternal discrepancy.
Examines the public health consequences both of
disclosing paternal discrepancy and of keeping it
undisclosed.
Identifies the urgent need for better intelligence on
demographics of paternal discrepancy and its effects
on family structure and health.
effects of breakdowns in relationships include increased
mental health problems for both partners52 while children
can experience low self esteem, anxiety, and increased
involvement in antisocial behaviour such as aggression.53
Other issues related to separations such as relocation of one
parent and children can also have detrimental effects.54 Not
all disclosures of PD will result in relationships ending.44
However, those that continue must cope with a child in the
family structure who is related to only one parent and
sometimes the result of infidelity. Despite many mixed family
structures working well, fathers spend more time and other
resource on their biological children and, at worst, children in
families where the father is not their own may be at greater
risk of paternal violence.55 Suspected infidelity is also a
trigger for domestic violence against women.56 Furthermore,
people outside the family who are ultimately identified as
true biological fathers may experience breakdown in their
own relationships. With such outcomes relating to the results
of paternity tests it is vital that they are accurate. However,
some commercial companies have already been known to
provide false results.57
Minimising the negative consequences of PD disclosure
requires services and support to be immediately available.
However, with PD testing even basic counselling is not
always provided and those receiving results by letter, email,
or over a web site can be effectively isolated. Although people
might approach generic support services (for example,
marriage guidance, general practice) in general these have
little or no research regarding PD on which to base practice or
advice. Effective practice and available support can be even
scarcer for the mother, child, and for the man eventually
identified as the biological father.
Although restricting access to commercial testing may
seem appropriate, the public health impact of restrictions
could also have negative consequences. Here we estimate that
only around one in every four elective tests identify PD; the
remainder confirm the father and child are biologically
related (table 1). Again little is understood about the
consequences to parents or children of the father suspecting
PD but not having this established or refuted. Many are likely
to be similar to having PD confirmed (that is, stress, possible
family breakdown, and abuse). For three quarters of
individuals, PD tests will allay their suspicions and may
improve relationships.
The issues surrounding accidental disclosure of PD through
health or judicial activity are no more clear cut. To date
inadvertent identification of PD has usually been kept from
those affected. However, more links between genetics and
individuals’ health are identified every day and consequently
the case for the child to be informed is strengthened.
Increasingly, the knowledge of genetic inheritance is not just
Paternal discrepancy and public health
753
of use to clinicians but informs the lifestyle choices of the
person,40 the decision to procreate,58 and in some cases access
to insurance.59 Consequently, a person left wrongly believing
they are related to a father with a heritable condition will
suffer some disadvantage. Disclosing PD in a controlled
health care environment may also have substantially fewer
health consequences than if later uncovered independently
through commercial tests. Equally, as public understanding
of heritability increases, inheritance patterns in families will
allow people to identify (or suspect) PD themselves.
Furthermore, the same increase in understanding will
discourage people from using modern genetic techniques in
case PD is disclosed.15 Overall, the health consequences of
either revealing PD or maintaining confidentiality are
strongly linked to the rights of the child, father, and mother
and recent developments in assisted fertility (for example, in
Sweden and the UK) now place the child’s right to know
their biological father above that of the donor (biological
parent) to remain anonymous.60
most inadvertently identified PD is ignored along with the
associated consequences to people of not knowing the correct
parentage and the possibility that PD may be discovered later.
However, in a society where services and life decisions are
increasingly influenced by genetics, our approach to PD
cannot be simply to ignore this difficult issue but must be
informed by what best protects the health of those affected.
CONCLUSIONS
Funding: none.
Modern genetic techniques continue to open a Pandora’s box
on hitherto hidden aspects of human sexual behaviour. No
clear population measures of PD are currently available.
However, recent trends in sexual health suggest unprotected
sex and multiple sexual partners (two key requirements for
PD) are comparatively common occurrences21 22 with a large
proportion of conceptions still unplanned (around a third in
the UK61).
Efforts to reduce PD may meet with some success.
Improved contraception in at risk groups such as young
people, who may be switching sexual partners, should help
not only with STIs and unwanted pregnancies but also PD
rates. Furthermore, PD offers another important reason to
develop sexual health messages for older age groups, some of
whom are still accumulating new sexual partners but
sometimes in a more covert fashion. The availability of
paternity testing kits themselves may also be used to
convince some men that carefree sex and denial of paternity
is no longer a viable option. However, no intervention will
completely eliminate infidelity where historically even laws
to make it punishable by death have failed (England,
Adultery Act 1650). Equally, it is unlikely that any legislation
will stop people purchasing and exploiting paternity testing
technologies. Consequently, we must develop a better understanding of the prevalence and distribution of PD, the
consequences of its disclosure or non-disclosure, and the
interventions necessary to protect health when PD is
disclosed.
Methods used in this paper identified a distinct lack of well
designed population surveys. However, the lack of a
disciplinary focus for PD studies (which appear in biological,
behavioural, medical, and genetic literature) means despite
extensive efforts some studies may have been missed
especially if they were not catalogued on health and social
literature databases.13 Equally, those sexual risk factors for
PD presented here are not based on genetic studies but on, for
instance, possible consequences of having more and concurrent partners. The strength of such risk factors will
inevitably depend on patterns of contraception use and
terminations of pregnancy. Regardless however of the level of
PD within any population, exposing such people will
inevitably affect not only their health but that of their family
and potentially that of the biological father. With increasing
levels of organ donation, male infertility treatment, screening
for diseases, and DNA profiling featuring in police and
emergency investigations, opportunities to identify PD are
also increasing. Decisions on what should be done with such
information are currently poorly researched. Consequently,
Conflicts of interest: none.
ACKNOWLEDGEMENTS
We are grateful to Penny Cook, Jim McVeigh, Sara Edwards, and
Matthew Ashton for comments on this manuscript and to Maxia
Dong and two other anonymous referees for their comments on an
earlier version of this manuscript.
.....................
Authors’ affiliations
M A Bellis, Centre for Public Health, Faculty of Health and Applied Social
Science, Liverpool John Moores University, Liverpool, UK
K Hughes, S Hughes, Behavioural Epidemiology, Centre for Public
Health, Liverpool John Moores University
J R Ashton, Government Office North West, Manchester, UK
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59 Raithatha N, Smith RD. Disclosure of genetic tests for health insurance: is it
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60 Johnson M. Donor anonymity and review: Keynote address. Proceedings of
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61 Allaby MAK. Risks of unintended pregnancy in England and Wales in 1989.
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62 Marsters RW. Determination of nonpaternity by blood groups. J Forensic Sci
1957;2:15–37.
63 Valentin J. Exclusions and attributions of paternity: practical experiences of
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64 Houtz TD, Wenk RE, Brooks MA, et al. Laboratory evidence of unsuspected
parental consanguinity among cases of disputed paternity. Forensic Sci Int
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65 Mickey MR, Gjertson DW, Terasaki PI. Empirical validation of the EssenMöller probability of paternity. Am J Hum Genet 1986;39:123–32.
66 Helminen P, Ehnholm C, Lokki M, et al. Application of DNA ‘‘fingerprints’’ to
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67 Jeffreys AJ, Turner M, Debenham P. The efficiency of multilocus DNA
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rCMIUKC
Susan F. Paikin
William L. Reynolds
Parentoae
Interstate Litigation and Same-Sex Parents
The formation,
recognition, and
rights ofthose
families has been a
constant source of
not-so-polite public
discourse and
political wrangling.
26 DELAWARE LAWYER SPRING 2006
The past few years have seen a dramatic increase in couples of the same sex
living together openly. Increasingly, those couples want to lead "normal"
middle-class lives, including that most middle-class of all life-style ornaments, children.
S
ame-sex couples, like their hetrosexual counterparts, raise children
in joint or separate households. The
formation, recognition, and rights
of those families has been a constant
source of not-so-polite public discourse
and political wrangling. Adoption by
gay individuals or partners led the way,
though not without legal challenges.1
Medical interventions and scientific advances now offer a smorgasbord of assisted reproductive technologies, where
a child may be biologically related to
one, both, or neither member of the
couple — and a child could have as
many as six parents.2 Layered on top is
the hot-button topic of the legal status
a same-sex couple may obtain in some
states or countries — domestic partnerships or gay marriage — and the Defense of Marriage Act3 (DOMA).
Not surprisingly, same-sex families
are beginning to see the same pattern
of breakups as more traditional families.
Those family breakups, of course,
involve children, and, as a result, the
legal system has begun to face some
difficult issues.
The Problem
Whether or not the end of the adult
relationship involves a legal divorce, termination of a domestic partnership, or
simply moving out and on, when children become involved, attention shifts
to the normal disputes involving the
couple's children — custody, visitation,
child support, and parentage. This article focuses on child support and parentage. Those issues are perhaps not very
difficult when the events occur wholly
within one state. After all, all that the
state needs to do is determine whether it
will treat same-sex families in the same
way that traditional families or relation-
ships are treated.
The California Cases. Well, perhaps
not so simple. Recently, the California
Supreme Court decided three cases that
raised the question whether a child can
have two mothers. Using both equitable principles and the Uniform Parentage Act, the California courts held
that biology alone does not control
parentage.4 Thus, a birth mother could
not disestablish the parentage of her lesbian ex-partner, where they had entered
into a stipulated court order (before the
child's birth) that both would be the
child's legal parents. 5
Similarly, a woman who had donated her ova, which was then fertilized and carried by her former registered domestic partner, was declared
the parent of the twins born six years
before the couple's breakup, despite
having signed a document similar
to the ones used by a sperm donor.
The court held that: The law applying to sperm donors did not apply
to egg donors in this situation, the
ex-partner was the biological mother of the twins, and under the Uniform Parentage Act both mothers
evidenced intent of establishing the
mother-child relationship.6
In the third case, a lesbian couple
each gave birth (the first to a son, the
second, a few months later, to twins).
They lived together as a family, but
neither partner signed a domestic
partnership agreement nor formally
adopted each other's children. After
the couple separated, the mother
of the twins began receiving public assistance and the county child
support enforcement agency7 sought
child support from her former partner, who denied responsibility asserting that she was neither the biological
nor legal parent of the twins. The court
applied the statutory presumption of
paternity, as the defendant had taken the
twins into her home and held them out
as her own. However, the defendant was
not permitted to rebut that presumption
and abandon the children to the care
and resources of the other parent; thus,
child support was ordered.8
The Delaware Case. In Carol Chambers v. Karen Chambers? the Family
Court of Delaware addressed the question whether an ex-partner of a lesbian
couple should be liable for child sup-
port. Chief Judge Kuhn accepted the
commissioner's order requiring Carol
to pay current child support for David,
who had been born to Karen during the
couple's three-year cohabitation. Visitation between Carol and David had been
set by a 2000 Family Court order. The
decision, based on the best interests of
David, found Carol to be David's parent within the meaning of the Delaware child-support law. Carol, in other
words, was a de facto parent. She had
been in a committed relationship with
David's biological mother at the time
of his conception and birth, and Carol
Today, more than
250,000 children are
being raised in
same-sex-couple
households. In
response... courts
have looked to factors
other than biology to
define the parent-child
relationship.
and Karen had a specific intent to coparent together. Accordingly, Carol was
equitably estopped from refusing to pay
child support.
The Legal Problems
These cases reflect the continued evolution of the concept of family in American society. Today, more than 250,000
children are being raised in same-sexcouple households.10 In response to this
evolution, courts have looked to factors
other than biology to define the parent-child relationship. Some jurisdictions have defined the relationship by
combining both biological and psychological factors; thus developing what is
referred to as a de facto parent." The
complications multiply, however, when a
child-support or paternity decree in one
state (often referred to as F-l) must be
enforced in another state (F-2). A related
problem occurs when one "parent" resides in a different state from the biological parent and child, and no basis exists
for the child's state to assert long arm
jurisdiction over the proposed obligor.
This article first discusses the enforcement of F-l child support orders in F-2.
We do so because enforcement presents
the most common interstate child support problem. In doing so, we will address the related problems that arise
when no order was issued in F-l, and
F-2 is asked to establish such an order.
Child support is particularly interesting both because the national child
support enforcement program offers
a template of very similar state laws12
and because a significant number of
child support cases will, at one time
or another, involve situations where
the parents reside in different states.
The Traditional Framework.
The law never writes on a clean slate,
of course, and it has long found solutions to problems involving children
when a couple, marital or not, dissolves. When the legal problem lies
entirely within one state, that state
has been free to work out whatever
legal principles it deems appropriate,
within the general framework provided by the federal and state constitutions and statutory law. Normally,
that solution is provided by a judicial
order. However, Congress has mandated that all states have a voluntary
paternity acknowledgment law under which an acknowledgement that
is not timely rescinded or challenged
ripens into a legal determination of paternity, without judicial ratification.13
Sometimes, however, the legal issue
arises after one of the couple (or even all
members of the putative family) leaves
the state, and no effective judicial order
is ever issued there.
The Interstate Framework. Interstate problems involving children invoke several different governing rubrics:
the Constitution, the relevant uniform
statutes (which have been adopted, with
small variations, in every state), and
their implementing federal statutes.
Full Faith and Credit. The most imSPRING 2006 DELAWARE LAWYER 27
FEATURE
portant interstate principle comes from
the Full Faith and Credit Clause of the
United States Constitution14 That clause
has long been read to require that a final judgment entered by any American court must be given as much preclusive effect as it would receive in the
state where it was rendered. In short, if
a Maryland court issues a child support
order, that order must be given as much
respect in Delaware and every other
state as it would receive in Maryland.
It is constitutionally irrelevant that the
public policy of Delaware stands in complete opposition to the Maryland policy
that underlies the judgment from that
state.15 In other words, the public
policy of neither Delaware nor Maryland has any bearing on the question
of whether Delaware should enforce
a Maryland judgment for child support involving same-sex parents.
The Statutes. Every state has adopted the Uniform Interstate Family Support Act (UIFSA). UIFSA
provides that a child support judgment that satisfies its criteria must
be recognized. Moreover, Congress
has adopted legislation — The Full
Faith and Credit to Child Support
Orders Act (FFCSOA)16 — that was
enacted under the express authority
of the Full Faith and Credit Clause.
The federal law tracks closely UIFSA
and makes quite clear that decisions
made pursuant to the latter are to be
routinely enforced in all American
courts. In other words, Congress
has reinforced the clear requirement
of the Full Faith and Credit Clause
with its own mandate: Enforce child
support judgments.17
Paternity Acknowledgements. Although not a traditional judgment, voluntary paternity acknowledgments now
create a conclusive determination of
paternity, subject to a 60-day rescission
period. The acknowledgment itself becomes a legal paternity determination,
entitled to full faith and credit. Beyond
the rescission period, the acknowledgment may be challenged only on proof
of fraud, duress, or material mistake of
fact.18 Even in those situations, however,
once the time for reopening the judgment has passed in F-l, other courts
must give the paternity order full faith
and credit.
Special Considerations for Same28 DELAWARE LAWYER SPRING 2006
Sex Couples. Two special problems,
however, arise for same-sex couples;
these are the Defense of Marriage Act
(DOMA)19, and the Supreme Court's
decision in Lawrence v. Texas.2" DOMA
and Lawrence move the discussion in
opposite directions, however. There
is also the consideration as to whether
state laws to establish paternity are more
generally applicable to establishing legal
parentage in a person of the same sex as
the biological parent.
DOMA. Congress adopted the Defense
of Marriage Act in 1996 to make clear
that the states did not have to recognize,
under the Full Faith and Credit Clause,
Congress has
reinforced the
clear requirement
of the Full Faith
and Credit Clause
with its own
mandate: Enforce
child support
judgments.
same-sex marriages entered into in other
states. The history confirms what the
language of DOMA makes clear: that it
applies only to "marriage" (and divorce,
the dissolution of marriage): "no state
... is required to give effect to any public act, record, or judicial proceeding of
any other state respecting a relationship
between persons of the same sex that is
treated as a marriage under the laws of
such state. ... Or a right or claim arising from such relationship." Thus, child
support is not covered by DOMA and
orders from other states must be recognized under FFCSOA. The only exception to that statement might arise if the
order is based on a marital presumption
of paternity; that might well be, in the
statutory language, "... a right or claim
arising from such relationship."
Lawrence. This is the true wild card
in the deck. In Lawrence, the Supreme
Court struck down a Texas law imposing
criminal penalties for consensual conduct between homosexuals. The majority opinion by Justice Kennedy contains
broad language suggesting that most,
if not all, state-based discrimination
against homosexuals is unconstitutional;
the opinion said, for example, of a 1986
precedent upholding a criminal conviction under similar circumstances, that its
"continuance as precedent demeans the
lives of homosexual persons."21
On the other hand, the Lawrence
majority carefully limited the formal
extent of its holding, and specifically
stated "The present case ... does
not involve whether the government must give formal recognition
to any relationship that homosexuals seek to enter." Thus, the majority
can be read as having issued a broad
declaration of the rights of same-sex
couples, or one that merely forbids
the criminalization of their conduct.
This article is not the place to explore that question in detail.
How Lawrence will be interpreted remains a mystery. Read narrowly, it has little to say about the
subject at hand, parentage and child
support, which do not criminalize
homosexual conduct. Read broadly,
however, it suggests that any law
that "demeans" homosexuals faces a
tough struggle to survive. And laws
that treat homosexuals differently
for no apparent independent reason,
even under DOMA's guiding hand, do
"demean" homosexuals and, therefore,
are constitutionally suspect.
It is certainly too early to tell how the
tension between DOMA and Lawrence
will play out. Both the well-prepared litigator and the wise policy-maker, however, must be aware of the problem.
Paternity Problems.
Child support orders require, of
course, that parentage be determined.
Children of same-sex couples raise problems concerning establishment generally, and establishment across state lines
specifically.
Paternity Establishment. Spurred
to action by the burgeoning number of
nonmarital children and the attendant
child poverty and welfare dependence
associated with single-parent families,
Congress required states to enact and
use expedited procedures to streamline
paternity establishment. While seeking to ensure that nonmarital children
gained the financial and emotional benefit of two parents, it is undoubtedly
true that Congress did not intend such
enhancements as voluntary paternity acknowledgments to be used to establish
same-sex parentage. However, neither
is there an explicit prohibition. Thus,
state law will govern whether "parentage" or "maternity" can be used interchangeably with "paternity" — and
same-sex couples would be able
to assert successfully the right to
establish parental rights in a child
using state voluntary acknowledgement statutes.
The Uniform Parentage Act
(2002)22 §106 states: "Provisions of
this Act relating to determination
of paternity apply to determinations
of maternity." Some argue that this
language means the act's provisions
are not limited to opposite-sex couples and "man" should be read generally as either "man" or "woman."
If so interpreted, voluntary paternity
acknowledgments are arguably available to establish a second mother (or
second father). However, UPA's official comments note that §106 is
designed for those rare cases where
a mother-child relationship needs to
be established.23
During drafting, there was considerable debate about whether the
UPA's acknowledgment provisions
should include an affirmative statement
that the signors are the biological parents of the child being acknowledged.
There is no such requirement in federal
law, though this was likely because it
did not dawn on Congressional drafters that someone other than a biological father would acknowledge paternity.
The original concern of UPA's drafters
was that parties would use the acknowledgment to circumvent state adoption
laws. The 2000 UPA revisions included
a "biological connection" limitation.
Based on objections, primarily but not
solely from the Individual Rights and
Responsibilities Section of the ABA, the
National Conference of Commissioners
on Uniform State Laws amended §302
(a)(4); and an acknowledgment must
state, "whether there has been genetic
testing and, if so, that the acknowledging man's claim of paternity is consistent
with the results of the testing."24
Establishment of Support Obligations Across State Lines. Where no
support order exists, UIFSA25 permits
a resident of F-l to establish a support
(and/or paternity) order by petition in
F-2, where the obligor resides. As the
receiving state, under UIFSA's choice
of law rules, F-2 applies its own law as
to whether the respondent has a duty of
support to the named child.26 Thus, F-
Given human
nature and
assisted reproductive
technologies,
the potential fact
situations
are almost
never ending.
2 must first decide whether there was a
legal basis requiring a person who was
neither a biological, legal, nor adoptive
parent to provide financial support for
the child. Clearly, states will have varying public policy positions on same-sex
parenting and individual liability will be
factually driven.
There is an additional twist in interstate child support establishment cases.
UIFSA precludes the responding state
(F-2) from considering nonparentage as
a defense if paternity already has been
determined. 27 UIFSA's choice of law
rules requires F-2 to apply F-l law to
ascertain if paternity has already been
determined. There are a multitude of
unanswered questions that arise given
these rules. There could be an existing
judicial order finding the same-sex respondent to be the named child's parent.
Or a same-sex couple lawfully executed
a voluntary paternity acknowledgement
that has ripened under the law of F-l
into a paternity determination. Under
the analysis described above, F-2 would
be required to give full faith and credit
to the sister state's judicial decree or
legal determination. With an enforceable finding of parentage, would F-2
be authorized to find that the same-sex
respondent had no duty of support under its law? Despite full faith and credit
arguments, it will likely be difficult
for trial judges in F-2 to order child
support where they would not do so
in an intra-state case. A legal argument supporting that result is that
UIFSA speaks of a "paternity" determination and the law of F-2 governs whether "paternity" is equivalent to "parentage." At a minimum,
such cases likely will require appellate litigation.
Given human nature and assisted
reproductive technologies, the potential fact situations are almost never
ending. Here are two more examples:
A same-sex couple is legally married
in F-l, a child was born during the
marriage, and F-l has a conclusive
marital presumption; would F-2 have
to treat the case as one where parentage had been established. What if a
mother in F-l sought support from a
biological father in F-2; could he defend based on the existence of samesex parents in F-l?
And there are practical issues for
the child-support agency. Is it obligated to seek child support from a samesex parent named by the custodial parent, including one who must cooperate
with the IV-D agency as a condition of
continued welfare eligibility? Must the
agency provide services to a same-sex
ex-partner seeking to establish parental
rights? These are likely only the tip of
the proverbial iceberg.
International Problems.
A number of European countries and
Canadian provinces have given some
form of legal recognition to same-sex
couples. As a result, there will be more
litigation involving the familial obligations for those couples.
SPRING 2006 DELAWARE LAWYER 29
FEATURE
The law here is clear. The Supreme
Court has left it up to the individual
states to determine whether to recognize the decree of a foreign court
— that is, the court of another nation.
In other words, the constitutional mandate of Full Faith and Credit is not applicable to international litigation. Even
for those countries or Canadian provinces declared to be reciprocating states
by the Secretaries of State and Health
and Human Services,28 such agreements
would not necessarily bind the state if it
found that the request was "manifestly
incompatible" with public policy of the
state. Be advised there are no reported
cases on this issue.
Further, by enacting UIFSA (2001)
§102(21)( B), it is arguable that the
state legislature has removed the availability of the state public policy exemption for those foreign countries meeting
the statutory requirement to be treated
as are other American states.29 For example, Ontario, Canada is a declared
foreign reciprocating jurisdiction and
has recognized the right to same-sex
marriage under the Canadian Charter
of Rights and Freedoms.30 There might
well be cases, both inside and outside
of a same-sex marriage, where enforcement of an Ontario child support order
against a same-sex non-custodial parent
is sought in the United States. UIFSA
thus can be read as restricting the ability of a receiving state to decline enforcement of such an order on public policy
grounds because they would not be permitted to reject the order of a sister U.S.
state. We are similarly unaware of any
litigation in this context.
CONCLUSION
A legal analysis of the interstate obligations that same-sex parents owe to
their children leads to the conclusion
that enforcing established obligations
do not differ from those that are owed
by traditional parents. The only serious
questions arise when the problems surface in an enforcing state that has adopted DOMA. Even then, a proper reading
of that law and the underlying policies of
the various other relevant statutes suggest strongly that the traditional rules
should be followed. The more likely
reading of Lawrence reinforces that conclusion. Because the establishment of
duty against a same-sex ex-partner has
been recognized by the Family Court,
30 DELAWARE LAWYER SPRING 2006
Delaware would unlikely have a basis for
precluding enforcement of a comparable
order from another state, even though
Delaware has enacted its own DOMA
provision.31 Similarly, Delaware courts
would apply the same analysis where an
original child support order is sought
here under UIFSA. What is left open
is whether a Delaware parent similarly
situated to Karen Chambers could obtain a parentage and child support order
elsewhere. •
operates under a state plan, approved by the
federal Office of Child Support Enforcement
(OCSE), based on program standards set by
the federal government. The Division of Child
Support is the IV-D agency in Delaware. Federal matching funds are used establish and
enforce child support obligations, including
establishing paternity. Welfare recipients are
required to cooperate with the child support
program, absent a finding of "good cause."
Congress has also granted enhanced enforcement tools but also required states to enact
laws as a condition of federal funding.
13. 42 U.S.C. §666(D)(ii) and (E).
14. See U.S. Const., art. IV, § 4, cl. 1.
15. See generally William L. Reynolds, The
Iron Law of Full Faith and Credit, 53 Md. L.
FOOTNOTES
Rev. 412 (1994).
1. See Lynn Wardle, A Critical Analysis of 16. 28 U.S.C. § 1738B.
Interstate Recognition of Lesbigay Adoptions, 3 17. There are a few exceptions—the most imAve Maria L. Rev. 561 (Summer 2005).
portant is lack of personal jurisdiction over the
2. The six include the sperm donor, the egg defendant—but the exceptions are irrelevant
donor, the gestational mother, the gestational to questions involving support for children of
mother's husband, the intended mother, and same-sex couples.
the intended father. See the discussion in The 18.42 U.S.C. §666(a)(5)(d)(iii).
Uniform Parentage Act: A Complete Revision,
17 Del. Lawyer 2, 8 (Summer 1999). And Vol. 19. 28 U.S.C. §1738C.
39, Family Law Quarterly (Fall 2005) con- 20. 539 U.S. 558(2003).
tains 10 articles and 2 book reviews (almost 21. Lawrence was a 6-3 decision. Justice Ken300 pages) on legal issues swirling around as- nedy's position had five votes, including his.
sisted reproductive technology (ART).
Justice O'Connor concurred with Kennedy on
3. 28 U.S.C. §1738C. "No State, territory, a perhaps more radical note: She wrote, "The
or possession of the United States, or Indian state cannot single out one identifiable class
tribe, shall be required to give effect to any for punishment ... with moral disapproval as
public act, record, or judicial proceeding of the only asserted state interest for the law."
any other State, territory, possession or tribe Three justices dissented.
respecting a relationship between persons of 22. Delaware enacted the Uniform Parentage
the same sex that is treated as a marriage under Act (2002) at 13 Del.C. §§8-101 through 8the laws of such other State, territory, posses- 904, effective 1/1/04.
sion, or tribe, or a right or claim arising from 23. See the differences between mother-child
the relationship."
and father-child establishment in UPA (2002)
4. See Paula Roberts, Parentage Case Update:§201.
Can a Child Have Two Mothers, Pub. No. 05-24.12 Del.C. §8-302(4).
53, at www.clasp.org/publications/parentage_ 25. In 2005, the Delaware legislature enacted
update_120105.pdf; (retrieved 12/30/05).
the UIFSA (2001) amendments, effective
5. Kristinc H. v. Lisa R., 37 Cal.4th 156 7/1/06. The enactment contains a renumber(2005).
ing of UIFSA with the section numbers mirroring the uniform act.
6. K.M. v. E.G., 37 Cal.4th 120 (2005).
7. Operating in accord with Title IV-D of the 26.13 Del. C. §622 (13 Del.C. §600303 efSocial Security Act, hence the "IV-D" agency. fective 7/1/06).
8. Elisa B. v. Superior Court of El Dorado 27. 13 Del.C. §634 (13 Del.C. §600315 effecCounty, 37 Cal. 4th 108 (2005). On the other tive 7/1/06).
hand, the Supreme Judicial Court of Massa- 28. 42 U.S.C. §659(a)(A). States were similarchusetts held that the same-sex ex-partner did ly authorized by federal law to enter into recinot have a duty to support the child her for- procity agreements. 42 U.S.C. §659(a)(D).
mer partner conceived by artificial insemina- 29. "State" means a State of the United States,
tion. The parties' parenthood agreement was the District of Columbia, Puerto Rico, the
unenforceable on public policy grounds. The United States Virgin Islands, or any territory
partner was not a legal parent under Massa- or insular possession subject to the jurisdicchusetts law and the court had no equity pow- tion of the United States. The term includes:
ers to make her pay.
(B) a foreign country or political subdivision
9. 2005 Del. Fam. Ct. LEXIS 1 (Del. Fam. that:
Ct.1/12/05). The court used pseudonyms, (i) has been declared to be a foreign recipropursuant to Delaware Supreme Court Rule cating country or political subdivision under
7(d).
federal law;
10. Can Gay Marriage Strengthen the Ameri- (ii) has established a reciprocal arrangement
can Family? Brookings Institution Brief- for child support with this State as provided in
ing 4/1/04 at 26. (retrieved 1/20/05 from Section 308; or
http://www.brookings.org/comm/events/
(iii) has enacted a law or established proce20040401.htm) Other commentators in the dures for the issuance and enforcement of supsame discussion put the number at closer to port orders which are substantially similar to
400,000.
the procedures under this [Act).
11. Chambers, id. at 12.
30. Halpern v. City of Toronto, [2000] 172
12. Congress enacted Title IV-D of the Social O.A.C. 276 (Ontario).
Security Act in 1974. Each state IV-D agency 31. 13 Del. C. §101.
Fighting a War Continued from page 17
a default judgment for the time during
which they were unavailable due to
active duty.
Particularly in the Army, divorce rates
have risen; in fact they nearly doubled
from 2001 to 2004. Sgt. Rowe Stayton,
a former Air Force pilot who served
in Iraq, stated that nearly one-quarter
of the soldiers in his platoon ended
their marriages while in Iraq.22 These
statistics simply scratch the surface of the
marital and familial concerns that occur
before, during and after deployment of a
spouse, mother or father. The new SCRA
further protects the interests of the men
and women serving our country. As the
new SCRA is implemented, however,
case law will likely further define how
the SCRA will be applied in specific
scenarios and how the interests of the
servicemember will be protected, while
at the same time protecting the interests
of his children. •
FOOTNOTES
1. Boone v. Lightner, 319 U.S. 561, 575
(1943).
2. Baughn, Darrell, Divorce and Deployment:
Representing the Military Servicemember.
project of the Military Committee of the
American Bar Association's Family Law
Section, and the North Carolina State Bar's
Standing Committee on Legal Assistance
for Military Personnel. The Act does not
speak to the form that the request must take.
Therefore, an affidavit, letter or memorandum
would likely be appropriate.
15. Id. at 5.
16. Id. at 5.
17. Advanced Litigation, LLC v. Herska, 2004
WL 1949292 (Del. Ch.).
18. APA Task Force on Resilience in Response
to Terrorism, Fact Sheet, Fostering Resilience
in Response to Terrorism: For Psychologists
Working with Military Families.
19. Id. Additional resources regarding reentry
can be found at: U.S. Army Soldier and
Family Support Center: at http://www.
armycommunityservice.org.
20. Lenser v. McGowan, WL 2064892 (Ark.
9/16/04).
21. Shelorv. Shelor, 259 Ga. 462 (1989).
22. Leland, John, Sex and the Faithful Soldier,
NX TIMES, October 20, 2005.
CUSTOMER
SERVICE
YOU'RE NOT
ACCUSTOMED TO.
FAMILY ADVOCATE, Fall 2005 at 8.
3. Id at 8.
4. The Servicemembers Civil Relief Act
applies to all civil litigation and is not limited
to the area of domestic law. However, the
authors have chosen to focus on this area
only.
5. 50 U.S.C. §511(4).
6. Although various tribunals are covered
pursuant to 50 U.S.C. 511(5), this article
is limited to issue relating to notice and
participation in judicial and administrative
hearings.
7. 50 U.S.C. §502.
8. 50 U.S.C. §582.
9. 50 U.S.C. §201(b)(2). If the attorney
cannot locate the serviceperson, actions by
that attorney do not bind the serviceperson
or operate as a waiver of any defenses that the
serviceperson may have.
10. 50 U.S.C. 521(4)(d).
11. 50 U.S.C. 522(c).
12.Meixell,JohnT., Servicepersons Civil Relief
Act Replaces Soldiers' and Sailors' Civil Relief
Act, 2003 DEC ARMY LAW, 38.
13. Because both men and women serve in
the military and fall under the purview of the
Servicemembers Civil Relief Act, "him" and
"her" are used interchangeably in this article.
14. Sullivan, Mark E., A Judge's Guide to
the Serviceperson's Civil Relief Act, 5, a joint
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What Constitutes a Parent in the Eyes

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