LJA C:=3 - ERIC · Jacquelyn Boggess and David Pate are grateful for the assistance of Daniel Ash and Marguerite Roulet. Both Centers appreciate the assistance of Keith Davis, Shauna

DOCUMENT RESUME

ED 447 940 PS 029 044

AUTHOR Campbell, Nancy Duff; Entmacher, Joan; Boggess, Jacquelyn;Pate, David

TITLE Family Ties: Improving Paternity Establishment Practices andProcedures for Low-Income Mothers, Fathers and Children.Reaching Common Ground.

INSTITUTION National Women's Law Center, Washington, DC.; Center onFathers, Families, and Public Policy, Madison, WI.

SPONS AGENCY Ford Foundation, New York, NY.; Fannie Mae Foundation,Washington, DC.; Levi Strauss Foundation, Inc., SanFrancisco, CA.; Eugene and Agnes E. Meyer Foundation,Washington, DC.; Ms. Foundation for Women.; RockefellerFamily Fund, Inc., New York, NY.; Rosenberg Foundation, SanFrancisco, CA.; Mott (C.S.) Foundation, Flint, MI.

PUB DATE 2000-11-15NOTE 40p.; Additional funding provided by the Cafritz Foundation,

the Norman Foundation, and the Moriah Fund.PUB TYPE Opinion Papers (120)EDRS PRICE MF01/PCO2 Plus Postage.DESCRIPTORS Child Support; *Child Welfare; Children; Childrens Rights;

*Family (Sociological Unit); *Fathers; *Low Income Groups;Mothers; *Parent Child Relationship; Parent Responsibility;Policy Analysis; *Public Policy; Welfare Recipients

IDENTIFIERS Coparenting; *Paternity Establishment; PersonalResponsibility and Work Opp Recon Act; Welfare Reform

ABSTRACT =Low-income mothers and fathers often share a desire to LLB Egcx

map--support their children, but current government policies may pit parents =against each other, often to the detriment of their children. This report C:21sets out a shared public policy agenda for newly elected leaders at all CZ)levels of U.S. government as part of the Common Ground Project, designed toadvance public policy recommendations, to promote effective coparentingrelationships, and to ensure emotional and financial support for children.The report is based on the recommendations generated at a meeting of publid LAJi 1:1,.policy advocates, practitioners, researchers, and staff of the NationalWomen's Law Center and the Center of Fathers, Families and Public Policy.Part 1 of the report presents the goals of the Common Ground Project, withthe initial focus on paternity establishment as a gateway to other child LJA C:=3support and related family law issues. Part 2 discusses the changing law o4paternity establishment related to welfare reform legislation. Part 3examines paternity establishment from the perspective of low-income mothersand fathers, focusing on economic, relationship, procedural, and collateralissues. Part 4 presents recommendations for improving paternity establishmentpractices and procedures, including the following: (1) Congress and thestates should better educate parents about paternity establishment, make theprocess fairer and more accessible, and eliminate coercive policies; (2)

policies should make paternity establishment more beneficial for poorfamilies, including public assistance recipients; (3) child support should goto children, not for welfare cost reimbursement; and (4) additionalsafeguards should be instituted to protect victims of domestic violence.(Contains 117 reference notes.) (KB)

Reproductions supplied by EDRS are the best that can be madefrom the original document.

1:4--Ly0

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US DEPARTMENT OF EDUCATIONOffice of Educational Research and Improvement

EDUCATIONAL RESOURCES INFORMATIONCENTER (ERIC)

Ye*This document has been reproduced asreceived from the person or organizationongmating It

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PERMISSION TO REPRODUCE ANDDISSEMINATE THIS MATERIAL HAS

BEEN GRANTED BY

1.1it QS iTO THE EDUCATIONAL RESOURCES

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ACKNOWLEDGMENTS

Family Ties: Improving Paternity EstablishmentPractices and Procedures fbr Low-Income Mothers.Fathers and Children would not have been possiblewithout the contributions of a number of members(past and present) of the staffs of the NationalWomen's Law Center and the Center on Fathers,

Families and Public Policy. At the National Wbmen's

Law Center, the report authors Nancy Duff Campbelland Joan Entmacher are grateful for the assistance ofNicole Deddens, Cristina Begotia Firvida, NaomiMann, and Jennifer Mezey At the Center on Fathers,Families and Public Policy, the report authorsJacquelyn Boggess and David Pate are grateful for

the assistance of Daniel Ash and Marguerite Roulet.

Both Centers appreciate the assistance of KeithDavis, Shauna Helton and Lisa Locker in the produc-tion of the report; Michael K. Lewis, President ofADR Associates, for facilitating the discussions thatled to the report. and Zak Metzger for recording andreporting the discussions.

The authors are also grateful for the assistance ofthe participants in the Common Ground project, onwhose discussions Family Ties is based, for theirthoughtful contributions to the discussions and theirwillingness to provide technical assistance, com-ments and advice as the report was drafted. The par-ticipants are listed in the Appendix.

,NAT:IONAL WOMEN'S LAW CENTER

Finally, the authors are grateful to the FordFoundation, for its funding of the Common Groundproject and this report, and the related work of boththe National Women's Law Center and the Center onFathers. Families, and Public Policy. The authors alsothank other major hinders of this related work: forthe National Women's Law Center, the CafritzFoundation. Fannie Mae Foundation, Levi Strauss

Foundation, Meyer Foundation, Ms. Foundation forWomen, National Association for Public Interest Law.Norman Foundation, Moriah Fund, RockefellerFamily Fund, and Rosenberg Foundation; and for theCenter on Fathers, Families and Public Policy, theCharles Stewart Mott Foundation.

The statements and views expressed in this reportare solely the responsibility of the National Women'sLaw Center and the Center on Fathers, Families andPublic Policy, and do not necessarily reflect the viewsor positions of the funtlers.

CENTER ON PATISIS, FAMILY, AND PUBLIC POLICY

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TABLE OF CONTENTS

I. The Common Ground Project

II. Paternity Establishment: The Context 3

. Ira@ Changing LAW Of Paternity EstabAishmenta. Paternity establishment before PRWORAb. Paternity establishment under PRWORA

2. Unmarried parents and Their Ciiiklren 5

3. The End of Welfare as We Knew it 7

III. Paternity Establishment from the Perspective of Low-Income Mothers and Fathers 9

1. Economic ISOM 9

a. Assignment and state debt: when child support is not for childrenb. Living without a safety net

2. Relationship Issues I2a. In the best interest of children and familiesb. When only the state wants paternity establishedc. When only one parent wants paternity establishedd. Addressing domestic violence

3. Procedural, Issues I 6

a. Providing information about voluntary paternity establishmentb. Clarifying the effects of paternity establishment on custody and visitationa Paternity testingd. Rescission of voluntary acknowledgmentse. The rights of minor parentsf. Default judgments

4. Collateral IsPies 22

a. Paternity establishment and statutory rapeb. Paternity establishment and non-citizen parents and children

IV. Recommendations for Improving Paternity Establishment Practicesand Procedures for Low-Income Mothers. Fathers and Children 94

4

NATIONAL WOMEN'S LAW CENTER CENTER ON

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, FAMILY. AND russ.se:"ropt.cr

Family Ties

I. THE COMMON GROUND PROJECT

The Common Ground project is a collaboration ofthe National Women's 1.2w Center (NWLC1 and theCenter on Fathers. Families and Public Policy(CFFP131. It grew out of a shared belief that low-income mothers and fathers often share a desire tosupport their children but that public policies oftendo not recognize the complexity of their relation-ships and family structures, and may end up pittingparents against each other rather than helping themwork together to provide for their children. The goalof the project is to bring together individuals whowork with low-income mothers and fathers to devel-op and advance public policy recommendations topromote effective co-parenting relationships andensure emotional and financial support for children.

The 1996 welfare law, the Personal Responsibilityand Work Opportunities Reconciliation Act (PRWO-RA), is presenting low-income parents with manydecisions that affect their ability to support their chil-dren. Time limits, work requirements, and otherrestrictions on benefits under the TemporaryAssistance for Needy Family (TANF) program, forexample, are placing increased pressures on thepoorest custodial mothers. New tools for collectingchild support can help secure additional, much-needed support for children from many noncustodialparents. However, for the poorest noncustodialfathers, who face many of the same barriers toemployment faced by custodial mothers receivingTANF, tougher enforcement measures are creatingincreased financial pressures as well. The resultingconflicts may well drive parents into opposing cor-ners, creating increased tensions and, in some cases,an increased risk of violence, despite a mutual con-cern for their children. The goal of policy makersand advocates must he to avoid such a result.

The public discussion of these issues tends tohighlight the points of disagreement and conflictbetween low-income mothers and fathers, ratherthan their common interests. Similarly, advocatesworking on these issues tend to work either onbehalf of low-income mothers or fathers. While insome instances these groups support the same poli-

des, they are oftenjust like low-income mothersand fathersconfined in the public policy arena tostaking out adversarial positions on either side of anissue. The Common Ground project provides a rareopportunity for advocates, practitioners, andresearchers who work primarily with low-incomemothers, and those who work primarily with low-income fathers, to come together, explain their con-cerns. reach a better understanding of the issues.and, in many instances, forge solutions that meet theneeds of all family members. The goal is to achievepolicies that reflect the perspectivesand the areasof common groundof both mothers and fathers inthese fragile families, which should improve out-comes for these families.

To carry out the project, NWLC and CFFPP haveassembled a diverse and distinguished group of pub-lic policy advocates, practitioners, and researchers.In a series of meetings, the participants, includingCFFPP and NWLC staff, are exploring the issues anddeveloping public policy recommendations focusedon the special concerns of low-income mothers andfathers in several areas of family policy Participantsin the project who participated in the meeting onpaternity establishment, the subject of this report,are listed in the Appendix.

This first Common Ground report focuses onpaternity issues because the establishment of pater-nity is a "gateway" to other child support and relatedfamily law issues. However, it is also intertwined withthem. Participants at the meeting on paternity estab-lishment agreed that it was impossible to discusspaternity establishment without considering its eco-nomic, social, and other legal consequences. Latermeetings and reports will explore these relatedissues in more detail. The second Common Groundreport will discuss policies on setting and modifyingchild support awards for low-income families andpolicies to increase family income. The third reportwill discuss child support enforcement issues andpolicies. The final report will discuss custody andvisitation issues. In all these areas, participants areconsidering the cross-cutting issue of family

Low-income

mothers and fathers

often share a desire

to support their

children but public

policies may end up

pitting parents

against each other

rather than helping

them work together

NATIONAL WOMEN'S LAW CENTER CENTER ON FATHERS, FAMILY, AND PUBLIC POLICY..

5 BEST COPY AVAI

I. THE COMMON GROUND PROJECT

The goal is to

achieve policies

that reflect the

perspectivesand

the areas of

common ground of

both mothers and

fathers in these

fragile families.,

which should

improve outcomes

for these families.

violence, as well as the effect of other issues suchas substance abuse, incarceration, H1V/AIDS andother serious illnesses.

NWLC and CFFPP have prepared this report inconsultation with the participants at the meeting onpaternity establishment, to capture the discussion atthe meeting and to present the recommendationsthat emerged from the discussion. However, CFFPPand NWLC are solely responsible for the final product.

-.NATIONAL WOMEN'S LAW CENTER CENTER ON FATHERS, FAMILY, AND PUBLIC POLICY

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Family Ties

II. PATERNITY ESTABLISHMENT: THE CONTEXT

',The Changing Law of PaternityEstabitshment

If a child is horn to parents who were marriedwhen the child was born or conceived, the law pre-sumes that the husband is the father; no additionalaction is required to establish the child's paternity. Toestablish legal paternity for a child whose parents areunmarried, formal action must be taken. However.the nature of the legal process required to establishpaternity for a child of unmarried parents haschanged dramatically within the last several decades.This process of change continued in 1996. whenPRWORA required states to make significant changesin their laws and policies concerning paternity estab-lishment: changes chat create both new opportuni-ties and new pressures for low-income, never-mar-ried mothers and fathers.

a. Paternity establishment before PRWORA

Historically, the only way that paternity could beestablished was through the courts.' Because a pater-nity case was a quasi-criminal proceeding (extramari-tal sex was a crime), the father had the right to a trialby jury and paternity had to be proved beyond a rea-sonable doubt. Short statutes of limitations requiredthat cases be brought soon after a child's birth. Overthe last 30 years, however, paternity establishmenthas changed from a criminal or quasi-criminal judicialproceeding to either a voluntary process requiringno more than the signing of affidavits, or a civil,often administrative, proceeding.

Various cultural, political and scientific factorscontributed tti these changes. Nonmarital childbear-ing became more common and less stigmatized. Theincrease in single-parent households, includingdivorced, separated, and never-married parents. ledto higher public assistance costs and a desire amongpolicy makers to require noncustodial parents tocontribute more to the support of their children.Delays and difficulties in state systems for establish-ing paternity led to improvements and streamlining

in the process for establishing paternity Increasinglyaccurate genetic tests made simpler proceedingsmore feasible.

Twenty-five years ago, paternity establishment andchild support enforcement were almost entirely mat-ters of state law The federal government first begandirecting substantial resources to the child supportsystem in 1975 when Congress added Title IV-13 tothe Social Security Act of 1935 to create thefederal/state child support enforcement program(often referred to as the "IV-D program ")? As a con-dition of receiving federal funding for their welfareprograms (then Aid to Families with DependentChildren, or AFDC), and to receive federal matchingfunds for child support enforcement, Title IV-Drequires states to comply with various federal childsupport enforcement requirements!

The original focus of the IV-D program was oncollecting child support on behalf of children whoreceived public assistance to recoup federal and statewelfare expenditures. Under AFDC, parents whoreceived public assistance were required to assigntheir rights to collect child support to the state, andto -cooperate" with the state child support enforce-ment agency in establishing paternity and collectingsupport.' However, parents who were not receivingpublic assistance also could apply to IV-13 for paterni-ty establishment and child support enforcementservices.' In the years that followed. Congressencouraged IV-D programs to provide more servicesto families not receiving public assistance throughfinancial incentives, allowed states to collect spousalsupport along with child support, and provided IV-Dagencies with new enforcement tools to be used inpublic assistance and non-public assistance cases.'Today, families not receiving public assistance repre-sent a large majority of the cases in state child sup-port programs nationwide.'

Over time, the paternity establishment processhas become easier and less stigmatized." Beginningin the 1970s, some states set up administrativeprocesses in which paternity could be establishedthrough the state's child support agency and

BEST COPY ANATIONAL WOMEN'S _VA,IWIZ

The nature of

the legal process

required to establish

paternity for a

child, o f unmarried

parents has

changed

dramatically

within the last

several decades.

CENTER ON FATHERS, FAMILY, AND PUBLIC

J. 7

111::PATERNITY-EStABLISkklktii-iE:CONTEXt

PRWORA requires

states to streamline

the pasernity

establishment

ess amtinalie. it

easier for parewis to

establish: /aLernity

also increases .:the.

pressure on states,

and on public. .

WiStaila

reel/Men

establish aterni

affirmed by a court. In the 1980s. several states beganto allow parents to voluntarily acknowledge paternityin hospitals and other locations. By the 1980s, allstates accepted the use of blood tests to rule out 1

paternity; beginning in the 1970s, some states began. _

to use genetic tests to establish paternityCongress also amended TidelV-D several times to

require all states to adopt laws making it easier forstates to establish paternity and to set standards forstate IV-D programs in the area of paternity establish-Men- t. In19144.Congres?; required all states to permit

: paternity to be established through age 18."'In 1988.Congress mandated that states require that all par-

: ties in a contested paternity case submit to geneticthat state law create a rebuttable or

. .

conclusive presumption of paternity whenevergenetic test results show a high probability of parer-nit lii Congress required all states to allow.patemity establishment through expedited prom-duces and to set up procedures for voluntary.'acknowledgments, including hospital-based pm-srant-s.'24c)wever. states could decide whether sip-ling a form voluntarily actually established paternity.or was merely evidence that could be used in a laterpaternity proceeding.° beginning in 1988. Congressset performance standards for state child support

_ . ,

programs to meet in establishing paternity; those I

1;standards were tightened in 1993." I-

*Paternity establishment under PRWORA

PRWORA requires states to adopt and implementa variety of new policies concerning paternity estab-lishment, streamlining the process and making it eas-ier for parents who want to establish paternity volun-tarily"'PRWORA also increases the pressure onstates, and on recipients of public assistance, toestablish paternityi'

:First, states must take additional measures toencourage and facilitate voluntary paternity establish-ment. States must use a voluntary acknowledgment I

,form that meets minimum requirements set by the I .

:federal Department of Health and Human

iNAMTIYINA ON AW CANT E j

Famil Ties

In general. states must recognize a signed acknowl-.edgment of paternity as a legal finding of paternityunless it is rescinded within 60 days; no further-legal action may be required to make the voluntaryacknowledgment legally binding.' After 60 days;paternity acknowledgments may he challenged Incourt only for fraud, duress, or material mistake offact.'" States must require that paternity be formallyestablished before an unmarried father's name isrecorded on the birth certificate:2'111e law and.theimplementing regulations require. states to-make volunary paternity establishment services broadly avail-able at birth records agencies. as well as at publicand private hospitals where they had been requiredearlier." They also give states broad discretion in des-ignating other organizations that can offer these serv-ices. including health care providers, public assis-tance agencies , child care prOviders, community-based organizations and legal services pmviders.'''States are required to provide materials and training.,.to any organization authorized to offer voluntarypaternity establishment services, to ensure that par-ents are informed of their rights, responsibilities,legal consequences of paternity establishment, spe-cial protections for minor parents (if there are anyspecial protections for minors in state law) and alter-natvesroestahshngpaternitvOrganizarions pro7.-viding. paternity establishment services,. both tovern.,....-...."mental and nongovernmental, are required to pro-vide The opportunity for parents to speak tO-a-trained person to answer any questions before thepaternity acknowledgment form is signec0

Second, PRWORA requires states to adopt lawsthat simplify paternity establishment in contestedcases. The law further promotes the use of genetictesting: child support agencies must be able to ordergenetic tests themselves, withoutapplying for acourt order; the results of properly conducted testsmust be more readily admitted as evidence; and.:states must pay for genetic tests they order.(although costs can be recouped later frOin.the:par-em or parents under certain circumstances).:26.1PRWO-12A also requires that states authorize the entryof......

CANTER ON FATHERS; PIANIL. AND PUBLIC POLICY


Family Ties

judgments of paternity by default, eliminate jury tri-als in paternity cases, and enter temporary supportorders pending the outcome of a paternity determi-nation when there is clear and convincing evidenceof paternity.'

Third, states must give putative fathers the oppor-tunity to bring an action to establish paternity.'

Fourth. PRWORA toughens paternity and childsupport cooperation requirements for applicants forand recipients of public assistance in several ways.Under AFDC, applicants and recipients who failed tocooperate in establishing paternity or collecting sup-port were sanctioned by having their AFDC grant cutby the caretaker's portion; payments for the childrenwere unaffected.' Under PRWORA, states mustreduce the TANF grant to the family by at least 25percent for noncooperation, and may terminateTANF assistance to the entire family if they choose."Over half the states authorize full-family sanctions."Under AFDC, federal regulations defined "coopera-tion." These regulations provided that if an applicantor recipient attested to a lack of information aboutthe identity or whereabouts of the father or putativefather, she would be considered to have met thecooperation requirement." Under PRWORA, to meetthe cooperation requirement, a parent must providethe name "and such other information as the statemay require" with respect to the noncustodial par-ent." Some states require that applicants providespecific items of information before they will bedeemed cooperative. Failure to provide the requireditems of information is considered noncooperationin these states, even if the applicant attests to a lackof knowledge!' States also have more discretion thanunder AFDC to add other "cooperation" require-ments, although they may not require that the indi-vidual sign a 'Voluntary" acknowledgment of paterni-ty or relinquish the right to genetic tests.'

Under both AFDC and PRWORA, applicants andrecipients with "good cause" for not cooperating inpaternity establishment or child support enforce-ment, such as domestic violence, may be excusedfrom the cooperation requirement."' However, under

II. PATERNITY ESTABLISHMENT: THE CONTEXT

AFDC, federal regulations defined the circumstancesin which "good cause' for noncooperation wouldexist, and the procedures states had to follow indetermining a good cause claim:- Under PRWORA,states have discretion to define what constitutes"good cause" and other exceptions from cooperationrequirements, and the kind of proof the parent mustpresent to qualify for an exception." Despite researchshowing an especially high prevalence of domesticviolence among welfare recipients,'' good cause israrely claimed and even more rarely granted. In FiscalYear 1997, states reported that good cause claimswere filed in only 4.1% cases nationwide. and thatgtxxi cause was found to exist in only 2,296 cases."'

Another way PRWORA toughens cooperationrequirements is by changing the procedures bywhich noncooperation is determined. Under AFDC,the welfare agency determined whether an applicantor recipient had cooperated or had good cause fornoncooperation." Under PRWORA, responsibility fordetermining cooperation is shifted from the welfareagency to the child support enforcement agency,''and state welfare agencies are now subject to penaltythemselves if they fail to sanction recipients after afinding of noncooperation.'' States also are now per-mitted to choose whether determinations of "goodcause" for noncooperation will be made by the statechild support enforcement agency, or by the statewelfare, child welfare, or Medicaid agencies."

At the same time as PRWORA increases the possi-ble penalties for noncooperation, the new lawreduces the incentives for families receiving publicassistance to cooperate. Under AFDC, parents receiv-ing assistance had to assign (turn over) their rightsto child support to the state:" however, in 1984,Congress required states to give families up to $50 ofany child support the state collected on their behalfeach month (the "pass-through") and to disregardthat amount when calculating the family's publicassistance benefit.' The remainder was kept by thestates and the federal government as reimbursementfor public assistance paid to the family.'' In PRWORA,Congress kept the requirement that recipients of

PRWORA

toughens paternity,

and child support

cooperation

requirements

for applicants

and recipients

of public assistance

but reduces the

incentives for

families receiving

public assistance

to-cooperate.

NATIONAL WOMEN'S LAW CENTER CENTER ON FATHERS, FAMILY, AND PUBLIC 1001.4:C.Tf.:

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II. PATERNITY ESTABLISHMENT:THE CONTEXT

Recent research

is challenging the

stereotypes of

nonmarital fathers

as absent or

uninvolved from

birth and the

stereotypes of

unmarried mothers

as uninterested

in the father's

involvement.

TANF assistance assign their rights to support to thestate, up to the amount of assistance provided to thefamily' However. PRWORA eliminates the mandatorypass-through and disregard for families receivingpublic assistance: states are now allowed to set theirown policies.'" A majority of states have chosen to

eliminate the pass-through and disregard altogeth-er."' In those states. none of the money paid by non-custodial parents on behalf of children receivingpublic assistance goes to their children; all of it goesto the state and federal governments to reimbursepublic assistance costs. This change has dramatically

reduced the child support going to poor children. InFiscal Year 1996, under AFDC. the federal govern-

ment reported that about $337 million in child sup-port payments was passed through to families receiv-ing public assistance. and disregarded in calculatingtheir welfare grants.' In FY 1997. under PRWORA,this amount had dropped to $40 million."

Once families have left public assistance, they are

entitled to receive all current support paid on theirbehalf." This was the rule under AFDC, and is therule under PRWORA." However, PRWORA increases

the ability of families, once they have left publicassistance. to receive more of the child supportarrears collected on their behalf, by giving priority tothose claims over arrears assigned to the state in cer-tain circumstances."

Fifth, PRWORA increases the pressure on statesto increase the number and percentage of paterni-ties established in relation to nonmarital births.PRWORA raises the paternity establishment standardto 90 percent." States that fail to meet the standard,or the alternative standard for improvement, may bepenalized.'" In addition, under the new incentivepayment system created by the Child SupportPerformance and Incentive Act of 1998, perform-ance on various indicators, including paternityestablishment, determines the level of federal incen-tive payments states receive.91

The changes in laws and public policies concern-ing legal paternity establishment have had animpact. Between 1994 and 1998, the number of

Family% Ties

paternities established through the IV-D child sup-port system or in-hospital voluntary acknowledg-ment more than doubled."

2. Unmarried Parents and Their Children

About one out of three children in the UnitedStates is born to unmarried parents.' making policiesconcerning paternity establishment relevant formany American families. Recent research is exploringthe complexity of these family patterns, and ischallenging the stereotypes of nonmarital fathersas absent or uninvolved from birth and the stereo-types of unmarried mothers as uninterested in thefather's involvement.

To gain more insight into these family relation-ships, the Fragile Families and Child Well-Being Studyhas begun to follow a new birth cohort of childrenand their (mostly unmarried) parents and children.'The study is designed to provide information aboutchild health and development in fragile families; therelationships between parents and between parentsand children in these families; and the factors thatpromote and hinder positive relationships and suc-cessful child outcomes. The study includes thefathers and mothers of randomly sampled childrenborn out of wedlock in 20 large U.S. cities, and asmaller comparison sample of mothers and fathers ofrandomly sampled children horn to married parents.Parents are interviewed shortly after the birth of thechild, at the hospital whenever possible, with fol-lowup interviews one, two, three and four years fol-lowing the binh.'2

The data from two citiesOakland, California andAustin, Texashave found that at birth, most ofthese children have two parents involved with themand with each other." Indeed, about half of theunmarried parents interviewed at the hospitalreported they were cohabiting." This finding is con-sistent with other research showing that an increas-ing number of births to unmarried parents in theUnited States are to unmarriedbut cohabitingparents." During the period 1990-1994, two out of

;NAT.IONAL WOMEN'S LAW CENTER CENTER ON FATHERS, FAMILY, AND PUBLIC POLICY

10 BEST COPY AVAII ABLE

five unmarried births were to cohabiting patents. upfrom 29 percent in 1980-1984Iiideed, nearly all ofthe increase in nonmarital births between these twoperiods was among cohabiting catuples. 7-

A majority of the unmarried mothers and Fathersinterviewed in Oakland and Austin reported that thefather had made some financial contributionthe pregnancy and had visited at the hospital or beenpresent at the birth.' At the time of birth, largemajorities of unmarried fathers and mothers in thissample reported that the father intended to continueto contribute and he involved with the child's life,and over 90 percent of new mothers said that theywanted the father to be invtiveil in raising thelailliO'iSliarlyiiiieri:entnInicitheiiiiiiid theirchances of marriage were 50-50 or better.?' Onlyseven percent of mothers reported that the fatherswere physically abusive:'AFs is a substantbIly lowerpercentage of women reporting domestic violencethan surveys of welfare recipients and other poorwomen have found." I

Despite these parents' desire to provide for theirchildren. they face substantial challenges. The typicalRePliiiher in these two Fragile Famiiiei sites had anincome of less than $12,500 a year, the typical moth-

45ailand:neaiiy one outof four fathers and two out of had notworked in the previous year

.

!Other research shows a greater risk of povertyamong children born to unmarried parents than toother children living with single parents. An analysisof data from the 1997 National Survey of America'sFamilies found that 60 percent of nonmarital chil-dren living with single mothers were poor. as com-pared with 37 percent of children living with single ;

mothers who were born to married parents.'However, marital status was a less important factor in il

predicting child poverty than were differences inmothers' education, work status, and residence withanother adult relative, usually a grandparent!'Differences in fathers' characteristics were not ana-lvzedlnthisstudy

The percentage of never-married mothers receiv-ing child support has increased dramatically in thelast *Jyeani,bin is still considerably lower than ifir-percentage of divorced and separated women receiv-ing support (18 percent versus 42 percent). Forchildren who receive it, especially poor children.child support is a significant source of family income,.....___ . _ .

representing over one-third of the family income ofpoor children whose Families are not receiving publicassistance tand who are therefore entitled to receiveall support areTatairrnii theNational Survey of Families and Households indicat-ing that nonmarital fathers who have establishedlegal paternity are more likely to have contact withtheir children several years after the birth than other.nonmarital Either's.

nonmarital fathers to pay at least some childsupport. However; research indictees that fatherswho have established paternity generally have higherincomes and better relationships with the mothersthan other unmarried fathers: factors correlated withhigher rates of child support payment and childinvolvement. c Ana, in general, riever-maiiied Fathers.like never-married mothers, have lower incomes thantheir divorced counterparts.' Research cannot yet.answertiiiinesiiiitint how the legal establishmentof paternityby itself, after other differencesbetwren parents-who do and do not establish pater-nity are taken into accountaffects the emotionaland financial support available to children of unmar-ried parents.

3.Th e End of Welfare as We Knew It

In addition to changes concerning paternityestablishment, PRWORA imposes a variety of newrequirements and restrictions on receipt of publicassistance benefits. The law forbids the use of federalTANF funds to provide assistance to a family formore than 60 months tomb' nearly half the stateshave more restrictive time limits?' TANF recipientswho fail to comply with work requirements are sub-ject to sanctions, which can be as severe as eliminat-

Despite the desire__....... . .

of unmarried

parents to provide

for their children.,

they face

substantial

chalknges: the

typical new father

in two Fragile

Families study sites

had an income of

less than $12,500

a year tlw typical

mother only

$4,000 to $5,000.

NATIONAL WONSWErLAIN CENTER I. COOTIE ON TANILT..A110:=1P.NALICIT'i

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II. PATERNITY ESTABLISHMENT:THE CONTEXT

To support

their children,

poor mothers

increasingly must

rely on their

own limited

resourcesand the

resources of their

children's fathers.

ing the grant for the entire family for the firstinstance of noncompliance.." Recipients also may besanctioned for failing to comply with state require-ments other than the child support cooperation andwork requirements, such as failing to ensure thattheir children are immunized or attend school regu-lady, or failing CO meet other requirements of their"personal responsibility contract." States maybutneed notprovide waivers from program require-ments for victims of domestic violence."

The threat of sanctions is very real. In an average

month in 1998, about 112,700 families werereceiving reduced benefits because of sanctions: anadditional 23,100 had lost all cash benefits as a result

of sanctions.'Low-income immigrants are particularly affected

by PRWORA changes. The eligibility of legal immi-grants who have not become citizens for federalmeans-tested benefits, including TANF, Food Stamps,Medicaid. and Supplemental Security Income, hasbeen restricted, especially for those coming to theUnited States after August, 1996.'

Family

Since the adoption of PRWORA, the number oflow-income families receiving TANF has fallen 49percent ^" while poverty rates among single-mother

households have declined only eight percent."Participation also has declined in the Food Stamp'and Medicaid"' programs. though many families stillhave incomes low enough to qualify for both pro-grams. More single mothers are working, and the cir-cumstances of some families have improved sincethey left welfare; but many are still struggling, andthe incomes of the poorest 20 percent of single-par-ent families have declined.'=

In sum. to support their children, poormothers increasingly must rely on their ownlimited resourcesand the resources of theirchildren's Fathers.

.NATIONAL WOMEN'S LAW CENTER CENTER ON FATHERS, FAMILY, AND PUBLIC POLICY


Family Ties

III. PATERNITY ESTABLISHMENT FROM THE PERSPECTIVEOF LOW-INCOME MOTHERS AND FATHERS

The participants in the Common Ground projectcame together from different backgrounds and per-spectives to develop recommendations to increasethe financial and emotional support available to chil-dren of low-income parents, promote effective co-parenting relationships, and, most importantly.improve outcomes for these fragile familieswhoare struggling so mightily for a better life.Participants recognized that formal paternity estab-lishment could offer benefits to many children andparents, and wanted to ensure that low-income com-munities and families had better information aboutand access to paternity establishment.

However, participants also noted that, especiallyin the diverse and complicated circumstances of thelives of poor, never-married parents and their chil-dren, the relationship between legal paternity estab-lishment and increased emotional and financial sup-port is complex. Fathers who have not formallyestablished paternity may be positively involved inthe lives of their children and even providing finan-cial support. And when child support payments go tothe state to reimburse public assistance costs ratherthan to the child. formally establishing paternity mayreduce, rather than increase, the likelihood that thechild will receive economic and emotional support.In a minority of cases in which there is a history ofdomestic violence, establishment of paternity maycreate additional risks of violence or abuse.

Participants at the Common Ground meetingidentified the issues and concerns of low-incomemothers and fathers relating to legal paternity estab-lishment. The issues clustered in four areas: the eco-nomic impacts on the households of both parents;the effects on family and extended family relation-ships and on communities; concerns about proce-dural fairness; and the collateral effects of paternityestablishment on other aspects of the legal system(for example, on immigration status).

-1-:conornic it.sues

Economic issuesincluding federal and statepolicies on establishing. modifying, and enforcingsupport orders, and policies to improve familyincome and help both parents contribute to theirchildren's supportwill be the focus of the secondCommon Ground report. However, participants atthe paternity meeting agreed that it was impossibleto discuss paternity establishment without consider-ing its economic implications. The usual assumptionis that paternity establishment is economically bene-ficial to children because it is the first step in obtain-ing formal child support, and confers rights to publicand private benefits such as Social Security depend-ents' benefits and inheritance rights. For childrenwhose mothers and fathers both are poor, however,and especially for children receiving public assis-tance. this assumption is less likely to he true.

a. Assignment and state debt: when childsupport is not for children

For families who need public assistance, the eco-nomic pressures relating to paternity establishmentare especially intense. As previously described. custo-dial mothers applying for or receiving TANF assis-

t tance to provide for their basic needs must assigntheir rights to collect child support to the state andcooperate with the state's efforts to establish paterni-ty and collect support. If mothers are deemed "unco-operative" they will lose at least someand, in moststates, allof the public assistance benefits theirfamilies need to survive. Participants who work withlow-income mothers reported that many fearwithsome justificationthat if they do not cooperate andtheir benefits are cut, the foster care system will stepin to take their children away because they areunable to support them.

If paternity is established for a child receivingpublic assistance, the statenot the mothercon-trols the decision whether to pursue child support.In public assistance cases, this step is virtually auto-

The usual

assumption is

that paternity

establishment is

economically

beneficial to

children but, for

children whose

mothers and fathers

both are poor, this

assumption is less

likely to be true.

NATIONAL WOMEN'S LAW CENTER CENTER ON FATHERS, FAMILY, AND PUBLIC .OL1FT:...:


111:31PATERNITY'ESTABLISHMENTFROM'THE PERSPECTIVE'OPIOW-INCOME MOTHERS:AND 'FATHERS

The mandator7.

assignment.of child .

support rights

means that support

paymen4..

reimburse..ihistate:.

and federal

governments far.

welfare costs and

children receiving

public assistance

o receive

nothing

fathers who may be

strugglinkjiar

to -: a.:. art._

mark. Participants who work with poor fathers. menwhose income is not only low. but often irregular aswell, reported that many fearwith some justifica-tionthat the child support obligation establishedwill he impossible for them to meet and that they willhe subject to a variety of sanctionsincluding jail.

. .

The pressures and fru.strations felt by both par-! ems are increased by the fact that, in most states,none of the child support collected through thiscoercive process goes to children receiving publicassistance. The mandatory assignment of child sup-' pOrt rights means that support payments go to reim-burse the state and federal governments tier welfare.costs. Participants agreed that this is one of the mostalienating features the current system: that manyof the children most in need. those receiving publicassistance, receive nothing from the Fathers who may

I be struggling the hardest to pay child support.lParticipants who work with low-income fathers

emphasized that having child support payments goto the state, rather than to children, underminesefforts to promote paternity establishment and thepayment of support. Men frequently ask them. "Whydo I need to establish paternity?" The standardanswer from the child support agency is. "It's gotxlfoie your kid; " firticipants- felt that for the fathers. ofchildren receiving public assistance. that was anlinamplete and even dishonest answer. "What makespeople crazy is when the system says. 'I want to help

Flails and make families better,' but what they reallymean is, 'I want my money back.- said one partici-,pant. "When the child support system says, 'We wantto strengthen families,' it's a lie. The system's set up

. to.recover welfare payments." echoed another.In addition to having monthly child support pay-

mentsments go to the state, not their children, the fathersof children receiving public assistance face othereconomic disincentives. In many states, fathers whoagree to establish paternity may find themselvesimmediately. and deeply, in debt, required to reim:buEse the state for welfare assistance provided to thechild before paternity was established or the birthingcosts paid by Medicaid. One participant recently

KINTASLINNITLINBINP.3111AW CENTER.

received a call from a low-income father who. had:voluntarily established paternity: "he walked inowing nothing, and walked out owing $3,000."

Burdening low-income fathers with debts to thestate that they have no realistic hope of repayingdamages the long-term economic prospects of lowincome mothers and children, as well as low- incomefathers. It is a serious deterrent to paternity estab-lishment, even for men willing to take on the respon-sibility of making on-going support payments. Stateagencies may try to avoid the disincentive by failingto infirm men contemplating voluntary paternityestablishment that they may walk out Owing thou-sands of dollars; however, participants agreed7WOtileventually gets around.

__

Children may receive. less on-going support fromfathers who owe large debts to the state, evertif7paternity is established. Even if such fathers manageto Increase their earnings or resources; themay go to pay down the state debt, not to:increasecurrent formal or informal child support. And somefathers facing impossible debts may trYtOasipptiarinto the underground economy making it less likelythat their children will receive economic or emotion-al support.

Some low-income mothers who know that whenthey leave public assistance they will.needand.couldbenefit from child support neverthelem;aretelifittanr-to establish paternity and seek child support throughthe formal system because of child support assign-ment and state debt policies. These mothers knowthat the fathers of their children also havelimitedincome, and may understand the fathers' problemsbecause they share them:.inadequate preparation forgood jobs, discrimination, limited opportunities intheir communities. Low-income mothers as well asfathers may fear the consequences. including possi--.ble incarceration. of burdening the fathers with debtsto the state that they can never repay.

.

Community organizations working with low--income Families are put in a difficult situation hy cur-rent ts on child suppo assignment and state--debt. Many participants thought that community._

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Family Ties 1.

'' ..'111.4ATERNITY ESTABLISHMENT FROM.THE-PERSPECTIVE-OF LOW - INCOME MOTHERS AND FATHERS

based organizations are in a better position than gov-ernment agencies to communicate with and helplow-income mothers and fathers understand thepaternity establishment process, because communityorganizations are more likely to talk the same lan-guage, understand the community's culture and val-ues, and be trusted. But the very trust communityorganizations enjoy leads to ambivalence about tak-ing on the role of promoting paternity establishmentin all cases. Representatives of community-basedorganizations felt that low-income parents are enti-tled to full and honest information about the eco-nomic and other implications of paternity establish-ment and that they have an obligation to provide it.However, they recognized that a policy of full disclo-sure, in the current system, might result in fewerpaternities being established."

Assignment and state debt policies do not justdeny most children receiving public assistance animmediate economic benefit from the payment ofchild support. Participants working with low-incomefathers and mothers were concerned that the poli-cies may reduce the emotional, as well as the eco-nomic, support that children receive. They notedthat relationships between parents and between par-ents and children, which may be fragile to beginwith, are put under additional stress when poor non-custodial parents struggle to make support paymentsto the state, but poor custodial parents are unawareof, or see no benefit from, these efforts.

The costs of these policiesgreater distrustbetween parents, between their extended families.between each parent and the child support agency.and the creation, in many cases, of a continuing bur-den of debt owed to the stateare likely to be feltby many families even after the children no longerreceive public assistance and are eligible to receivecurrent support.

Common Ground participants agreed that espe-cially in a world of time-limited welfare, child supportshould go to childrenthat using child support pay-ments to reimburse welfare costs no longer makesany sense." Under the old AFDC program, cash assis-

ranee was seen a.s a potentially long-term substitutefor the financial contribution of the absent parent. toallow low-income single parents to care for their chil-dren at home. The assignment of child support tothe government by recipients of AFDC served to off-set these on-going public expenditures. Under TANF,however, assistance is time-limited, and in moststates, custodial parents are required to work as soonas they start receiving benefits."

In the low-income communities CommonGround participants work with, most poor mothersreceiving public assistance are well aware that some-how, and soon, they will have to manage without it.and want help from the fathers. Many poor fatherswant to do right by their children, but are frustratedby the demands and policies of the welfare and childsupport systems.

To encourage parents to establish paternity andwork together to support their children, participantsrecommended eliminating the assignment of childsupport to the state and state debt policies, andallowing parents, not the state, to decide whether topursue a formal support order following paternityestablishment'

b. Living without a safety net

When custodial parents leave welfare, they areentitled to receive all of the current child supportpaid for their children. For mothers struggling toprovide for themselves and their children from low-paying jobs, often without child care subsidies orhealth insurance, even small amounts of additionalincome can make a real difference. When fathers areable to pay child support, participants agreed, theyshouldand the law should vigorously enforce thatobligation. But participants struggled at the meeting,as they do in their work, with the harsh reality thatsome of the fathers of the poorest children are poorthemselves.

One participant highlighted the situation of oneof his clients: a man receiving Supplemental SecurityIncome (SSI) because he was too disabled to work

For mothers

struggling to

provide for their

children from

low-paying jobs

even small amounts

of additional

income can make

a real difference,

but the harsh

reality is that

some fathers of the

poorest children are

poor themselves.

NATIONAL WOMEN'S LAW CENTER CENTER ON FATHERS, FAMILY, AND PUBLIC rotoev..

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III. PATERNITY ESTABLISHMENT FROM THE PERSPECTIVE OF LOW-INCOME MOTHERS AND FATHERS

Legally establishing

paternity can be

beneficial for many

children but

establishing legal

paternity is not

the same as being

a father:

and had income below poverty. Ile was expected bythe child support agency to get a job and make regu-lar support payments. But another participantresponded that in her state. SSI payments for a sin-gle individual were higher than the total TANF bene-fits a mother with two children would receive.

Another portrayed the choices starklybetweenkids going hungry and dads being homeless, orgoing to jail, because they simpiy could not pay whatwas required. As one participant put it. When wetake away the safety net, we're saving to poor moms,go fight with poor dads."

Participants agreed that for paternity establish-ment to become a long-term economic benefit forchildren, changes in the child support system areneeded. Representatives of low-income mothers and

fathers both felt that their constituencies have diffi-culty getting the child support system to respond totheir needs. In some states. mothers who want achild support order have to wait years after paternityis established to get an order, losing years of poten-tial support. In other states, orders are establishedautomatically following paternity establishment eventhough neither parent, perhaps because they arecohabiting, want a formal order.

The size of the order is also a concern.Participants agreed that impossibly high orderswhich low-income fathers are especially likely to con-frontcan discourage paternity establishment andparticipation in the formal child support system (andeconomy). But participants struggled with the ques-tion of what the financial obligations of poor fathersshould be, given the responsibilities that poor moth-ers are struggling with, and reserved the develop-ment of specific recommendations about minimumorders, in-kind support, and child support guidelineawards for the next meeting.

Participants agreed, however, that changes in

more than the child support enforcement system arerequired to increase the likelihood that legal paterni-ty establishment substantially improves the econom-ic circumstances of children born to poor, unmarriedparents. Participants recognized that low-income cus-

Family Ties

todial anti noncustodial parents face many of thesame barriers to finding and retaining decent jobs.They recommended that low-income parents, espe-cially minor parents. be provided with additionalsocial services to increase their ability to provide sup-port to their children. Participants agreed that at thenext Common Ground meeting, when policies fordetermining and modifying support awards are dis-cussed. various approaches to increasing Family

income will be considered.

2. Relationship Issues

a. In the best interest of children and families

Common Ground participants discussed how thechild support system generally, and the formalprocess of paternity establishment specifically, affectthe relationships between parents and children,between parents. and among family members.Underlying this discussion was the assumption thatchildren benefit from a good relationship with eachof their parents; from parental relationships that areawerative, or at least free of violence and seriousconflict( and from connections to extended familyand community networksan especially importantresource for children whose parents are both poor.

A paternity acknowledgment or order establishesa legal relationship between the father and the child.It is the first step in the formal child supportprocess, legally identifies the father for purposes ofinheritance and other benefits, and permits nonmar-ital fathers to seek court-ordered visitation or cus-tody. Participants agreed that legally establishingpaternity could be beneficial for many children andtheir families.

Participants emphasized, however, that establish-ing legal paternity was not the same as being afather. Participants agreed that, in general, parent-child relationships are formed and nurtured outsideof the paternity establishment system. A good rela-tionship can exist without the formal establishmentof legal paternity and a bad relationship cannot be

NATIONAL WOMEN'S LAW CENTER CENTER ON FATHERS, FAMILY, AND PUBLIC OLICY


Family Ties

III:PATERNITY ESTABLISHMENT FROM THE-PERSPECTIVE'OF LOW-INCOME'MOTHERS AND"FATHERS. ,

fixed nor a previously nonexistent feeling createdsimply 1w establishing legal paternity. However, theact of legally establishing paternity, and the conse-quences of legal paternity establishment. Clat-iaffeCtrelationships both positively and negatively

. .

Paternity establishment can provide some chil-dren with a more secure sense of identity and social .

connection. It can provide access to paternal medicaland genetic information and can provide the sodalcurrency and support systems that come withextended family relationships. It can lead some cur-rently inactive noncustodial parents to become moreactive in their children's livesa positive outcome inmany cases, but potentially detrimental or even dan-gerous for children, as well as their mothers. in casesof abuse." 1

;Participants discussed the different meanings thatlegal paternity establishment has for different parentsand in different communities. For some parentswhose relationships are good, voluntarily establishinglegal paternity can be an affirmation of their feelingstoward each other and the child.'IBut for other par-ents with good relationships. who may be consider-ing marriage to each other, paternity establishmentmay be seen by them and their community as incon-sistent with eventual marriage. And for others.involvement of the formal legal system a systemthey and others in their communities generally may I !

perceive as alien or hostilemay jeopardize a coop-erative adult relationship, or add new stresses to atense relationship, especially if parents have no con- ;

yolover the legal process. Several participants notedthat for some parents and communities, the father's;informal acknowledgmentidentifying the child ashis to his family and community and providing mate-rial support and helpmay be more meaningful thana legal establishment of paternity Other participants.ticiiveer. were concerned that if the relationship 7

between the parents changes, an informal acknowl-,

edgment may not provide as reliable a foundation ftocontinuing support as a formal acknowledgment. ; I

b. When only the state wants paternityestablished

Parents who need public assistance or Medicaidare not free to decide for themselves whether toestablish legal paternity. As explained above. theymust assist the state in establishing paternity unlessthe state is satisfied that "good cause" for noncoop-eration exists. Once paternity is established, the statewill generally seek a child support order to ensurerepayment to the government of welfare costs. Incontrast. parents who do not seek public assistancemay decide air themselves whether to establish legalpaternity, and separately decide whether to apply foradditional child support enforcement services.

Participants had a number of concerns about hav-ing the state pursue paternity establishment andchild support against the wishes of both parents.Participants were concerned that the coerciveness ofthe process, and the pursuit of paternity establish-ment or child support in inappropriate circum-stances, could affect the relationships between par-erns and with their children adversely At a morephilosophical level, some participants felt that thestate should not make critical decisions about family.life as a condition of providing poor parents withnecessities for their children.

Participants were particularly concerned aboutthe consequences of establishing paternity in situa-tions where there has been domestic violence,beuse paternity establishment creates an on-goinglegal relationship between a battered woman and herabuser. Concerns about domestic violence are notlimited to situations in which the state initiates thepaternity process, as discussed below. But the risksare greatest when the state initiates paternity estab-lishment in public assistance cases. The incidence ofdomestic violence among women who receive wel-fare is especially high," Although on paper. all stateshave a "good cause" exception from the child sup-port cooperation requirement for victims of domes-

. ..domes-

tic violence, qualifying for the exception may be diffi-cult_One participant noted that in her state, only five

Establishing

paternity in

situations where

there has:been

dolnesticliwknee..

rotses:,:conarns. :

ecausel)(tiernsty-r,

establishinent

creates an:

on- gving. legal

7-ekitionsh

beittvrt'a battered..

WOMan

ht)r..tibit.ser:

NATIONAL WONEWSIILAW ,CINTIN ON PATNA'S, IAIGILY, AND 1J,ILLI1A,.4.0:1.14..Sillt

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III:PATERNITY ESTABLISHMENT FROM THE'PERSPECTIVEOF LOW-INCOME-MOTHERS AND FATHERS

Some low-income

fathers perceive that

mothers are: using

the child support

enfcrrcement system.

to punish them, but

mothers receiving

welfare have almost

no control over the

process, and

both parents,

accordingly, may

ventt

trations on

each other .

percent of the domestic violence waivers soughtfrom TANF requirements were granted. Public assis-tance recipients have almost no control over the sub-

.

.sequent child support enforcement process.Moreover, the child support enforcement agencydoes not represent parents in custody or visitationdisputes that may flow from child support enforce-ment efforts, and low-income battered women mayfind it especially difficult to obtain legal representa-ticinin such cases.

State-initiated paternity establishment and sup-port enforcement can have negative impacts on fami-ly relationships even in situations not involvingabuse. participants noted. One participant suggestedthat being forced by the state into the formal child'support system can make fathers feel as if they havefallen short of society's expectations of them as menand fathers. Some men react in accordance with thatnegative perception of themselves and withdrawfrom relationships with their children and their chill'dren's mother. The economic consequences ofpaternity establishment for very poor fathers, as'described above, can leave low-income fathers feel-ingjustifiably.. in the view of some participants:helpless, hopeless, and convinced that legal paternityestablishment is only about money. This, too. canhave a detrimental effect on their relationship with '1ltheir children and their children's mother. I

Some low-income Fathers caught up in the child!-support enforcement system perceive that mothersiiamusing the system to punish them or deny themaccess to their children. But custodial parents in thewelfare system have almost no control over the:process of establishing paternity or enforcing sup-port. Because neither parent can prevail against thepower of government actions, they vent theirfrustrations and feelings of powerlessness againsteach other.

:Several participants were concemed.that theistare's insistence on creating a legally bound two- 1

the best decisions for the child. Especially in some 1

poopmenrctommuY

sometimes got in the

communities, extended

of making

members

ay

other adults may play a major, even primary, caretak-ing role. Yet the effect of paternity establishment onthese important relationships is often ignored..L::Participants generally agreed that it is important kr;government and society to recognize thatfamiliei-are broader than mother, father and children, and.that child support, welfare, and family court systemsmust consider the impact of their actions on the roleof extended Families and multiple families, within var-iouscommunities and cultures.

In the context of the current system, Common-Ground participants had differing views about howlikely it was that poor mothers, fathers and childrenwould benefit from formally establishing paternitySome participants suggested that, given the harsh-ness and rigidity of the current mandatory--welfare/child support enforcement system, for somelow-income parents and children the benefits of eco-nomic support and positive interaction andiriVolve-mem from both parents and their families might bebetter achieved through an informal paternityacknowledgment to the community than throughthe formal paternity process. Other participantsquestioned what an "informal acknowledgment"would mean if the parents' relationship deteriorated.and saw greater potential benefits from legal paterni-ty establishment, especially as families are leaving --welfare more quickly. But all participants-recognizedthat the coerciveness of the current system; whichconditions subsistence benefits for custodial mothersand children on cooperating in paternity establish-ment and policies that divert child suppotTermeats from children negatively affect the way.paternity establishment and the state child supportenforcement system are perceived by low-incomeparents and communities. Participants emphasizedthe importance of changing these policies, and pro-viding parents with full information and access to theservices they need to enable them to make decisionsabout what is best for their children, influenced:bytheir own culture and community

histriAtatim-Avomemetw ,c a KT eft cg 'craft ON .PATNIIIS. IJANILY, AND PUBLIC POLICY


III:PATERNITY ESTABLISHMENT FROM'THE PERSPECTIVE OF LOW-INCOME MOTHERS AND FATHERS'

c. When only one parent wants paternityestablished

In some cases, unmarried parents no longer havea relationship with each other, or have a relationshipmarked by conflict or distrust. In these and other sit-uations, the parents may be unable to agree aboutwhether to establish paternity voluntarily, or to makemutually satisfactory arrangements concerning childsupport. custody, or visitation. Although CommonGround participants opposed having the state coerceparents into formally establishing paternity when nei-ther parent wanted it, they recognized the impor-tance of having procedures by which either parentcould easily initiate the formal paternity establish-ment process when one of them wanted to do so.

For many mothers, the formal paternity establish-ment and child support enforcement system pro-vides a way of legally identifying the father and abasis for securing needed economic support.Especially as more low-income mothers struggle toget by without public assistance, and become awarethat, as a practical matter, it is easier to establishpaternity early in a child's life," they may seek tobring more low-income fathers into the formal pater-nity establishment process. Participants agreed thatlow-income mothers who wish to initiate the processshould be able to rely on the establishment andenforcement powers of the formal system. But theyrecognized that this too could strain relationships.

Some fathers believe that a woman who pursuespaternity establishment through the formal system isdemonstrating her lack of trust in him and in his will-ingness to do the best he can to support his child.Because many low-income fathers have encounterednegative experiences and negative reports about thechild support system, they tend to consider use ofthe formal system as an affront to their integrity.Better information and services for low-incomemothers and fathers to help them understand thesystem, their rights, and the perspective of the otherparent are needed to ease the tensions.

NATIONAL WOMEN'S LAW CENTER CENTRE ON FATHERS, FAMILY. ANO,PUSLIC pettesa

Participants agreed that, though fathers have alegal right to initiate paternity proceedings, as a prac-tical matter poor men are rarely able to marshal theresources and information necessary to do so. Mostlow-income fathers generally feel isolated from thedecision-making processes. and are not proactive inthe child support system. Better information andservices are needed to address these issues as well.

Some fathers do, however, initiate paternity pro-ceedings. legal paternity establishment permits afather to seek court-ordered visitation or custody.This can create tensions, if the mother perceivespaternity establishment as an effort to "take her chil-dren away" Better information about the processand better access to services, including mediation tohelp parents resolve disputes about custody and visi-tation, could help some parents develop a morecooperative relationship. So could greater access toparenting education programs that help parentsdevelop and maintain respectful, cooperative parent-ing relationships.

Participants agreed that although father involve-ment is desirable in many situations, there are othersin which it is undesirable or even dangerous.Domestic violence is the clearest example. Some par-ticipants also were concerned that in situationswhere there is general conflict between parents,especially if the father is highly controlling and hasgreater access to resources, legal paternity establish-ment and the increased conflict and litigation itcould lead to might be detrimental to the child.Other participants emphasized that it was importantto distinguish cases involving physical violence fromthose in which parents were just behaving badly orvying for control. Participants were unable to decidehow and where lines should he drawn, however, orto agree on how, or whether, the potential forincreased problems in the parents' relationship inthe future should be considered at the point a fatherseeks to establish paternity. Liter Common Groundmeetings will address ways to address these issues inthe context of custody and visitation.

Although the

state should not

coerce parents

into formally

establishing

paternity, either

parent should be

able to easily

initiate the formal

paternity

establishment



Staff engaged in

the paternity

establishment

process should be

trained in domestic

violence issues and

how domestic

violence can affect

whether a paternity

acknowledgment is

truly voluntary.

d. Addressing domestic violence

Participants recognized that legally establishingpaternity when there has been a history of abuse cancreate increased risks for mothers and children,however the process is initiated.

An effort to establish paternity or enforce supportcan trigger a violent reaction by a barterer angryabout support enforcement, or provide a bartererwith previously unavailable information about amother's whereabouts. This can occur whether thelegal process was initiated by the state or the moth-er. However, mothers who are free to decide forthemselves about paternity establishment at least canmake their own assessment of risk, wait until the riskseems less. and take some other protective steps ifnecessary. Mothers receiving public assistance haveno such freedom. Participants agreed that elimina-tion of the assignment and cooperation requirementwould help address this problem. If this is not possi-ble, they recommended that procedures for claiminga good cause exception he improved. They also rec-ommended that protections for domestic violencesurvivors who seek child supportwhether they arerequired to do so or do so voluntarilybe improved.

Some abusive men initiate paternity establish-ment themselves, using the paternity establishmentprocess and litigation over custody and visitation tocontinue to abuse and control the mother. One par-ticipant noted that since civil protection ordersagainst abuse have become more common, abusivemen have become more strategic, using the paterni-ty and custody process to continue an abusive rela-tionship with the mother. Participants agreed thatcommunity-based programs could play an importantrole in helping fathers recognize and deal with abu-sive behaviors.

Domestic violence also can be an issue when par-ents are approached in the hospital to establishpaternity "voluntarily" As one participant noted, thefather's presence in the hospital doesn't automatical-ly mean his relationship with the mother is a goodone. And it may be difficult for a mother, especially


20

Family Ties

one who is emotionally stressed and physicallyexhausted from just giving birth, to say that she doesnot want to acknowledge the paternity of a bartererwho is sitting next to her. Accordingly, most partici-pants thought that hospitals should screen fordomestic violence in connection with voluntarypaternity establishment, by interviewing the motherseparately from the putative father. This screeningcould be accomplished pursuant to a general hospi-tal protocol by staff other than those involved inobtaining voluntary paternity acknowledgments.Some participants, however, thought that becausethe time spent in the hospital at childbirth is short,domestic violence screening may not be feasible.These participants were concerned that to requiresuch screening would deny the majority of parents,who do not have domestic violence issues, the con-venience of establishing paternity in the hospital.

Participants recognized that screening for domes-tic violence in some other settings where paternitycould be acknowledged, such as birth recordsoffices, poses somewhat different issues. In thesesettings, at a minimum, staff engaged in obtainingvoluntary acknowledgments of paternity should betrained in domestic violence issues and the ways inwhich domestic violence can affect whether anacknowledgment of paternity is truly voluntary

3. Procedural issues

a. Providing information about voluntarypaternity establishment

Establishing paternityor not establishing paterni-tyhas enormous implications for the lives of theinvolved parties. Official state materiaLs and informa-tion from staff at organizations that assist parents inestablishing paternity often will declare that establish-ing paternity is good for the child. However, neithersource may adequately explain to parents the proce-dures for or consequences of establishing paternity.Accordingly, parents and the general public are oftenmisinformed or confused about how paternity may

5, FAMILY, AND PUSLIC POLICY

BEST COPY AVAILABLE

Family Ties

.. .....lirpATERNITY ESTABLISHMENT FROMTHE':BERSPECTIVE 'OF LOW-INCo ...... *MOTHERSANIYOT.THEitt:..:?,'

be established and its consequences. The result isthat some parents are reluctant to establish paternityvoluntarily, and others establish paternity withoutfully understanding the results of their actions.

.Participants generally agreed that the goal should

be to facilitate paternity establishment. rather thanmandate it. One participant suggested that the stateshould utilize the public health model of massivepublic education coupled with easy procedures that

are routinely offered. The participants identifiedthree target groups_for this educational effort: the .general public; the staff of public and private institu-tions or organizations that assist parents in the pater-

nity establishment pros s, and parents who have

not established paternity:Participants agreed that the state needs to pro-

vide more honest and widespread public education.The materials developed by the state should be cul-

:turally and linguistically appropriate. One participant 11

noted that materials (and the educators who usethem) may be linguistically accurate without havingcultural currency While the message should be hon-

about the economic and other consequences ofestablishing patirnity, it shouicTiWiiiatide informa-tion about the potential benefits of establishing a!lasthig legal relationship between the child and both:patents. One participant suggested that ways tointroduce concepts of paternity. in moresettings I

need to be developed. As an example. this partici-=pant noted that, in Texas, students. in biology classes

.are taught about DNA and paternity-tests. Some;thought that education and new ways of thinking!about paternity establishment need to come from!thetommunity (in the form of community-basedorganizations and community leaders) rather than,from the government. One way to facilitate thiswould be to provide a process for obtaining inputfrom. community- -based organizations on the appro-

pdatertess of a state's materials and its messages. j!Participants agreed that there needs tote better

1

training of staff at institutions and organizations that:assist parents imestablishingpaternity. Most volun-iii.itfepaternity acknowledgments4resigried athospi-

tals. which was a problematic kxale for several par-ticipants. They expressed concerns abOutthe hospi-tal setting because current hospital maternity staysare brief and the period surrounding childbirth isemotionally stressful. Thus, parents are often notemotionally or mentally equipped to digest thepaternity acknowledgment form and/or make a deci-sion during the hospital maternity stay. This problemis compounded when parents receive inadequateinftirmation about the consequences of acknowledg-ing paternity

...._.Participants agreed that permitting voluntary

paternity establishment at other locations should heencouraged. However, improving in-hospital proce-dures is important as a practical matter because it isa convenient locale for many parents. Participantsrecommended better training of hospital staff so thatthey can sufficiently answer parents' questions onthe paternity establishment process: the delie66:mm and distribution by hospitals ofi:tili-ualy sensi-tive brochures that clearly explain the paternityesutblishment process and are available in different i&-*41-1languages: and the inclusion on the voluntary pater- organitations thatnits establishment form of information about the

The goal should

be to faeilitaie

3

5etrsAi.

establishment, .

.

mandate it, by

PEOUldin

OrtitlielYnt.}

1k,

effect of voluntary paternity establishment on cus-tody and visitation.

Participants also discussed the suggestion thatcommunity-based organirations and social serviceproviders he involved directly in voluntary paternity.establishment. The advantage of these organizationsis that they are involved in and trusted by the corn-munities. But some participant. feared that the trustthat the community places in these organizations

could be eroded by their participation in paternity_ .

establishment if the overall paternity establishmentprocess remains coercive and economically disadvan-tageous for many families. No consensus was

reached. Participants agreed, however, that better

training of staff and the dissemination of culturallysensitive brochures in different languages would helpimprove the operation of all locales that offer paterni-ty establishment services. Some-participants feltstrongly that-personnel should.be able to speak the

NATIONAL WONSWSIILAW -CENT'S I.

21

assist > parents in

uttife=1,2MOBRR-tRE=1atartblsshtneia

,C"IITIM ON PATHS'S, ,ANILY. AND: PHAIACEPO,

BEST COPY AVAILABLE


Parents often do

not have sufficient

or accurate

information about

the effect that a

voluntary

acknowledgment of

paternity will have

on custody and

visitation

rightsboth

immediately and

over the long term.

language of the community they serve (e.g., Spanish).Participants also agreed that the current policy ofsome states of assessing a fee for all non-hospital vol-untary acknowledgments should be abolished.

In addition to having information about the directconsequences of paternity establishment, both par-ents need to be aware that, in certain circumstances,establishing paternity may have legal consequencesthat are unrelated to issues of child support, custodyand visitation. Staff who are involved in voluntarypaternity establishment need to be aware of theseconsequences and alert parents to them. For exam-ple, the establishment of paternity may, in somestates, impose liability for child support on a child'sgrandparents. A mother who is seeking public assis-tance while cohabiting with the father of her childmay be committing, under certain circumstances, anact of welfare fraud. This circumstance could bedetected and possibly prosecuted if. as a result ofestablishing paternity, the office of public assistancediscovered that the mother and father were cohabit-ing. Likewise, establishing paternity may in somecases alert law enforcement authorities to the loca-tion of individuals who are being sought under war-rant. In addition, establishing paternity may subjectsome parents to charges of statutory rape, or mayprevent some parents from successfully adjustingtheir immigration status, as described in more detailin Section 4.

b. Clarifying the effects of paternityestablishment on custody and visitation

Parents often do not have sufficient or accurateinformation about the effect that a voluntaryacknowledgment of paternity will have on custodyand visitation rights both immediately and overthe longer term. Mothers may not know, for exam-ple, that signing the acknowledgment could give thefather the right to take the baby from the hospitalwithout the mother's consent. Fathers may not knowthat signing the acknowledgment gives them theright to assert custody and visitation rights. Neither

DATION.AL WOMEN'S LAW

mothers nor fathers may know that some legal actionbeyond acknowledging paternity may be necessaryto resolve these issues, or how to take such action.

Participants agreed that both parents need to befully informed, as part of the voluntary paternityestablishment process, about the effect of establish-ing paternity on their rights to custody and visitation.Beyond that, some participants objected to efforts totry to resolve these issues in the hospital or similarsettings where time is short and the legal options arepotentially complex. Other participants argued thatunless some resolutioneven if only on a temporarybasisis made at the outset, of at least the custodyissues, parents will be deterred from voluntarilyestablishing paternity.

For example. uncertainty about custody couldlead a mother who has a problematic relationshipwith the father to avoid establishing paternity. Ifdomestic violence is present, a mother might notwant to establish paternity without assurance thatcustody will be resolved in a way that protects herand her child's safety. If either parent is a minor, heor she may fear a claim for custody by a grandparent(the minor's parent) once paternity is established.

To address these concerns, the participants dis-cussed three possible models.

In the first model, at the time of a voluntaryacknowledgment of paternity, the mother would begiven presumptive physical and/or legal custody, withthe presumption ripening into a permanent determi-nation of custody if the father did not request anychange in custody within a specified time period. Ifthe father requested a change, a custody determina-tion would be made without regard to the initial pre-sumption or the fact that the child had been placedwith the mother temporarily. Both parents would begiven full information on their rights to custody andhow to assert them. In addition, parents would needready access to mediation and/or legal counsel toresolve custody issues. The "ripening" period fromtemporary to permanent custody might be 60 daysbecause that is the same time period within whicheither parent can rescind a voluntary acicnowledg-

, FAMILY, AND PUSLIC POLICY


Family. Ties

III. PATERNITY ESTABLISHMENT FROM: THE PERSPECTIVE OF LOW-INCOME MOTHERS AND FATHERS

ment of paternity, or it might extend to some periodbeyond the 60 days, so that it is clear that recision isno longer an issue.

In the second model, the parents would berequired to agree on which parent would have physi-cal and/or legal custody and acknowledge their deci-sion on a form with legal effect at the time paternityis acknowledged. For example, at the bottom of thepaternity acknowledgment form there could he aline that reads "we agree that the child will live withX." Either parent could be provided 60 days torescind the custody agreement, and it would heautomatically rescinded if the acknowledgment ofpaternity was rescinded.

In the third modela variation of the first twothe mother would be awarded presumptive physicaland/or legal custody at the time of voluntary paterni-ty acknowledgment, unless the parents signed anagreement with legal effect that they had decidedotherwise.

No consensus was reached but participantsagreed that some temporary resolution of custodyshould he part of the voluntary paternity establish-ment process and that these issues would heexplored further at a later meeting devoted to cus-tody issues. Participants also agreed that services tohelp parents resolve custody issues should be readilyavailable and that parents should be told at the hos-pital or other location authorized to establish pater-nity about these services.

c Paternity testing

When an.individual contests paternity, courts oragencies often will order a genetic test to establishwhether the man is the father of the child in ques-tion. The price of genetic tests ranges from about$200 to $500, which can exceed the resources ofmany low-income parents. Under federal law, whenthe child support agency orders a genetic test, itmust pay for the test but has the option of recover-ing the fee from the losing party as costs.' When aparty requests retesting, however, the law requires

the requesting person to pay the cost.' ` In cases inwhich the losing party or, in the event of a retest, therequesting party, is indigent, these rules may heinconsistent with the Supreme Court's decision inLittle v. Streater 452 U.S. 1 (1981), which held that ina case brought by the government in which genetictests were requested by an indigent party the gov-ernment must pay the cost.

Participants discussed the hardships for low-income parents in requiring them to pay for genetictests, and the benefitsfor the mother, the putativefather, the child, and the stateof promptly resolv-ing questions of paternity. They agreed that statesshould not require low-income individuals to pay forgenetic testing.

d. Rescission of voluntary acknowledgments

Federal law requires that voluntary acknowledg-ments of paternity have the full force and effect oflaw within 60 days of signing.' Federal law alsorequires that states allow either signer to rescind theacknowledgment within that period or the date ofany judicial or administrative proceeding relating tothe child in which the signer is a party whichever isearlier." After this period an acknowledgment canonly be challenged for fraud, duress or material mis-take of fact." Although federal regulations providesome guidance to states concerning the process forvoluntarily establishing paternity, the regulations aresilent about rescission.'

When parents are fully informed about paternityestablishment before signing a voluntary acknowl-edgment, few want to exercise their right to rescind.But in the real world, poor women and men areespecially likely to he pressed to sign an acknowledg-ment without access to the information they need,and only thereafter recognize that signing theacknowledgment was ill-advised. For example, eithersigner might realize that there is a possibility that theman who signed is not the biological father. A victimof domestic violence could be faced with a demandfor custody or visitation that she believes will put her

There are hardships

for low-income

parents in

requiring them

to. pay for genetic

tests, and

benefitsfor the

mother; the putative

father; the child,

and the statein

promptly resolving

questions :of

paternity.

NATIONAL WOMEN'S LAW CENTER CENTER ON FATHERS, FAMILY, AND FUSLICPOLL.ICT,':::.

BEST COPY AVAILABLE2.3


Some states fail

to provide

information about

how to rescind a

voluntary

acknowledgment

and some states

seem to have no

procedures

developed at all.

or her child at risk. Or a signer might simply nothave understood the legal consequences of acknowl-edging paternity The right to rescind a voluntaryacknowledgment promptly can be an important pro-tection for children and parents, avoiding a morepainful challenge to paternity later in the child's life.

Participants were concerned that some states failto provide information about how to rescind a vol-untary acknowledgment. Indeed. some states seemto have no procedures developed at all. The absenceof clearly defined procedures poses particular risks.For example, an individual might think that he orshe has effectively rescinded an acknowledgment ofpaternity by sending a signed statement to the hospi-tal where the acknowledgment was signed. But, ifthe hospital has no role in the rescission process.notice of the -rescission" might not be transmittedto the other signer, birth records office, or the IV-agency, creating problems for all concerned.

Participants recognized that a rescission, like avoluntary acknowledgment of paternity, has legalconsequences that need to be clearly addressed. Forexample. notification of the rescission should be sentto the other signer of the acknowledgment. Thebirth certificate, if it has already been issued, shouldbe amended. If the acknowledgment creates a pre-sumption or agreement concerning custody or visita-tion, that should be nullified.

Most participants thought that in a system thatappropriately emphasizes simple and informal proce-dures for establishing paternity. simple and informalprocedures for rescinding acknowledgmentswith-in the statutory 60-day periodare also appropriate.Most participants found problematic the require-ment that a voluntary paternity acknowledgment canbe rescinded within this time period only by filing aformal legal action. Such a requirement may deterlow-income men and women from voluntarilyacknowledging paternity in the first instance or pre-vent them from being able to rescind it, since theyare less likely than middle- or upper-income individ-uals to have the resources necessary to file such anaction. Most participants thought that it should be

possible to rescind an acknowledgment by filing aform comparable to the voluntary acknowledgmentform at the IV-D agency or the birth records office.Some participants thought that. although it mightpresent difficulties of access for low-income parents,a formal proceeding should be required to rescindan acknowledgment of paternity, even within 60 daysof signing, because that is the best way of ensuringthat its legal consequences, such as its effect on cus-tody. can be resolved.

e. The Hems of minor parents

The establishment of paternity when one or bothof the parents is a minor raises a unique set of issues.Many states do not allow minors to enter into con-tracts or binding agreements without the consent ofa parent or guardian ad litem (person appointed torepresent a minor in a legal proceeding), andacknowledgments of paternity may be subject to thisrule.' The rationale for the rule is to protect minorsfrom entering into legal agreements when they maynot be old enough to be fully aware of the conse-quences. At the same time, some states permit"emancipated" minors to make legally binding agree-ments. with emancipation defined as living on one'sown or, in some instances, becoming a parent.' Therationale for this rule is that a minor who is function-ing as an adult should be able to make legally bind-ing agreements as well.

Federal law requires only that if state law providesany special protections for minors, the minors mustbe notified of those protections."' Some statesrequire specifically that the minor's legal guardiansign the paternity affidavit,'" while other states per-mit minor parents to sign paternity affidavits withoutthe consent of a parent or guardian ad litem."' Moststates. however, have not enacted laws to addressthis issue."' States whose laws are silent are problem-atic because a court may decide that because a par-ent was a minor, a voluntary acknowledgment didnot effectively establish paternity, creating problemsin a later child support or custody proceeding.

NATIONAL WOMIN'S LAW CENTER CENTER ON FATHERS, FAMILY, AND IPL/SLIC POLIC

2 4 BEST COPY AVAILABLE

Family Ties

m. PATERNITY ESTABLISHMENT FROM THE PERSPECTIVE OF 'LOW-INCOME MOTHERS AND FATHERS

Participants discussed whether minors should heable to establish paternity voluntarily without repre-sentation by a parent or guardian ad litem but didnot reach a consensus. Concern was expressed fromboth the mother's and father's perspective about theability of minors, on their own, to understand thelegal consequences of acknowledgment. At the sametime, participants did not agree that minors shouldbe prohibited from acknowledging paternity withouta parent or guardian's consent. Participants did agreethat state law should expressly address the issue andnot leave it to later court interpretation.

Similar issues arise with respect to minors in therecission process. Some participants suggested thatthe 60 days should start to run from the date thatthe minor turns eighteen, when he or she is morelikely to understand the consequences of legallyestablishing paternity. Other participants counteredthat this proposal is unfair to the mother and child.who could have relied on the acknowledgment forseveral years, only to have it rescinded.

In the end, the group agreed that state law shouldexpressly address the question whether a minorMUSE be represented by a parent or guardian adlitem in order to sign a voluntary acknowledgment ofpaternity, or may do so without such representation.The alternative selected should determine the recis-sion process. If a state requires a minor to be repre-sented by a parent or guardian ad litem in order toacknowledge paternity (and the minor in fact hassuch representation), the usual recission period (60days from the date of signing) should apply. If thestate permits a minor to acknowledge paternity with-out representation by a parent or guardian ad litem,but the minor in fact acknowledges paternity withsuch representation, the usual 60-day recission peri-od should also apply If, however, the minor acknowl-edges paternity without such representation, he orshe should have 60 days from the date the minorturns eighteen to rescind. In addition, participantsemphasized that there needs to be a process bywhich a minor can get a guardian ad litem who isnot a parent appointed as a representative, to pro-

tect against parental abuse or coercion. Under any ofthese approaches. as federal law provides,"' if a legalproceeding for support, custody, or visitation isbrought while the parent is a minor, the minorwould have to raise a challenge to the voluntaryacknowledgment during the proceeding or the rightto challenge would be waived.

f Default Judgments

Federal law requires states to have proceduresrequiring a default order to be entered in a paternitycase upon a showing of service of process on thedefendant and any additional showing required bystate law."' This allows the mother, or the state in apublic assistance case. to obtain a determination ofpaternity when the man named as the father is notpresent for the initial hearing or for subsequentpaternity proceedings. However. rules vary in differ-ent jurisdictions as to what type of notice must begiven before a default can be entered, and underwhat circumstances a default judgment can heentered or vacated.

The standards governing default judgmentsshould balance important conflicting interests: theright of the putative father to notice and an oppor-tunity to he heard before paternity is establishedand a child support order set, and the right of thechild to obtain a determination of paternity and sup-port from a father who knowingly fails to appear incourt. But participants thought that, to the extentpossible. default judgments should be the excep-donnot the rulein state determinations of pater-nity."° Participants agreed that paternity determina-tions and child support orders of which men haveno knowledge are not only unfair to the men, theyare less likely to produce tangible benefits for chil-dren and mothers.

Participants discussed when the entry of a defaultis appropriate and when it is appropriate to vacate adefault. Notice was the most important factor.Participants were especially concerned about protect-ing the putative father's rights in jurisdictions in

Concern was

expressed from

both the mother's

and father's

perspective about

the ability of

minors, on

their own, to

understand the

legal consequences

of paternity

acknowledgment.

NATIONAL WOIREN'S LAW CENTER CENTER ON FATHERS. FAMILY, AND PUBLIC roLicr-


Family Ties

III: PATERNITY ESTABLISHMENT FROM THE PERSPECTIVE' OF LOW-INCOME MOTHERS AND FATHERS

Using the threat

of a statutory rape

prosecution to

compel paternity

establishment ar

child support

payments treats

paternity

establishment and

child support, in

effect, as a

punishment.

which minimum levels of notice, such as publicationnotice (where a notice of the proceeding is put intothe newspaper). were considered sufficient.

Most participants agreed that when the putativefather shows up for at least one court proceedingand then fails to show up again, a default judgmentis appropriate, particularly when a paternity test hasalready established a high probability that the man isthe child's father. They reasoned that the man knewhe was in the middle of a paternity proceeding. andchose not to participate further.

Participants were divided on what should happenwhen the man fails to show up for any proceedingconnected to the establishment of paternity. Mostparticipants thought that. in most instances, noticein the form of personal service on the putative fathershould be required before entry of a default judg-ment. Some argued that personal service might betoo high a standard, because some men would evadeservice. One participant proposed that instead ofissuing a default in this situation, a warrant shouldbe issued for the named man's arrest, as is done in

cases of domestic violence.Participants considered whether to balance the

competing interests by making the process for vacat-ing a default judgment easier. Some participantsargued that even in cases of long-standing defaults.the courts should be open to vacating judgments,reestablishing awards and wiping out arrears,because this would encourage fathers to appear incourt and get paternity resolved and an appropriateorder entered. Other participants were against this,saying the effect was to allow fathers to escape orreduce their responsibilities, leaving the mother tosupport the child alone. Participants agreed that theydid not want to establish a system in which it wouldbe better for the father to avoid the proceeding thanto appear, but did not reach a consensus on the cir-cumstances under which it should be possible tovacate default judgments.

Coliaterai issues

The legal establishment of paternity necessarilybrings parents into the formal legal or administrativesystems. Both voluntary paternity acknowledgments,and administrative or judicial determinations ofpaternity, for example, are filed with the state birthrecords agency and must include each parent'sname, address, date of birth, and Social Securitynumber. This involvement with the formal family lawsystem can lead to parents' involvement with thecriminal justice or immigration systems.

a. Paternity establishment and statutory rape

The paternity establishment process for minormothers and the putative fathers of their childrencan implicate a state's statutory rape laws in impor-tant ways. These laws make sexual intercourse withan individual under a certain age illegal, even if con-sensual. Although these laws are not often aggres-sively enforced, they have been invoked in paternityestablishment and child support settings to compelparticular behavior. For example, in some jurisdic-tions, the threat of a statutory rape prosecution hasbeen used as leverage to compel paternity establish-

ment or child support payments. Participants work-ing with both mothers and fathers criticized thispractice of treating paternity establishment and childsupport as, in effect, a punishment. Participants alsowere concerned about the practice in some jurisdisc-tions of using voluntary acknowledgments of paterni-ty as proof of statutory rape. Participants criticizedthis practice as providing a disincentive for youngmothers and their partners to voluntarily sign anacknowledgment of paternity

Participants agreed that the sole punishment forstatutory rape should not be to require the establish-ment of paternity and payment of child support bythe perpetrator. If criminal prosecution is appropri-ate, the primary punishment should be the imposi-tion of the relevant criminal sanctions. Participantswere divided on whether establishing paternity and

NATIONAL WOMEN'S LAW CENTER CENTER ON FATHERS, FAMILY, AND PUBLIC POLICY


Family Ties

PATERNITY ESTABLISHMENT FROM THE PERSPECTIVE OF.LOW-INCOME MOTHERS AND FATHERS"

paying child support should be able to be part of thepunishment. Some argued that the child support andcriminal justice systems should be kept totally sepa-rate or the message is being sent that paternityestablishment and paying child support is a punish-ment. Others argued that the criminal justice systemshould be able to help secure the establishment ofpaternity and the payment of child support.

Most participants agreed that a voluntaryacknowledgment of paternity should not generallybe able to he used as evidence in a later prosecutionfor statutory rape. Some thought that it should neverbe admissible, but others opposed an absolute prohi-bition because they were concerned about the abilityto prosecute some cases involving violence or incestwithout such evidence.

One way of addressing these issues might bethrough broader changes in statutory rape laws,especially changes that would make it easier to dis-tinguish abusive from non-abusive relationships.Some participants argued that the standard for statu-tory rape should be an age-differential standard (e.g.,requiring a difference in age of, say, five years) ratherthan a flat cutoff at a certain age. This would make itmore likely that only relationships in which olderindividuals are taking advantage of considerablyyounger individuals would be prosecuted.

b. Paternity establishment and non-citizenparents and children

While paternity establishment has important legalramifications for all parents. it presents unique issuesfor non-citizen parents. For example, a non-citizenparent who is adjusting his or her status to become anaturalized citizen must demonstrate that he or shepossesses "good moral character" in order to adjuststatus successfully' A non-citizen father who estab-lishes paternity, hut, for whatever reason. fails to pro-vide child support for his child could be consideredto lack "good moral character" and denied citizenstatus. A non-citizen mother who has a child out ofwedlock but does not establish paternity for that

child could be considered to lack "good moral char-acter" and denied citizen status. An unfortunateresult of the "good moral character" test is that in sit-uations in which both parents of a child born out ofwedlock are non-citizens, the desire of each parentto satisfy the test could encourage the mother toseek paternity establishment, but discourage thefather from doing so.

In those cases in which a non-citizen father iswilling to establish paternity and also establish achild support order. the non-citizen father faces anadditional obstacle to adjusting his status. A non-citi-zen seeking to adjust his status must have the abilityto support himself at 12i percent of povertyBecause not all states guarantee noncustodial par-ents a self-support reserve at that level in their childsupport award calculation, a low-income non-citizenfather seeking to adjust his status is not likely to beable to meet his child support obligation and alsosupport himself at 125 percent of poverty In thoseinstances, too, a non-citizen father could be deniedcitizen status.

Recommending changes in immigration policiesare beyond the scope of this report, but participantsagreed that agencies and community groups workingto encourage paternity establishment in immigrantcommunities need to provide better informationabout the implications for immigration status ofpaternity establishment or non-establishment. Theyalso agreed that immigration policies, as well as childsupport policies, need to be changed to enable non-citizen parents to work together to support theirchildren and achieve citizen status.

NATIONAL WOMEN'S LAW CENTER CENTER ON P


An unfortunate

result of the "good

moral character"

test for becoming

a United States

citizen is that it

encourages the

mother to seek

paternity

establishment,

but discourages

the' father from- _

doing so.

IV. RECOMMENDATIONS FOR IMPROVING PATERNITYESTABLISHMENT PRACTICES AND PROCEDURES FORLOW-INCOME MOTHERS, FATHERS AND CHILDREN

The policy recommendations of the participantsin the Common Ground project are an attempt toaddress the concerns articulated in their discussions.Although not every participant agrees with every rec-ommendation, a majority of the participants supporteach included recommendation.

The goal of the recommendations is to improvepaternity establishment practices and procedures by

providing low-income parents with: full and accurateinformation; access to a process that is fair, and pro-

tects against domestic violence; a right to initiate thatprocess. either together or individually, upon theirown volition and not because the state requires it as acondition of public benefits: and related child sup-port policies that will help parents pay adequate, real-istically set awards that will benefit the children onwhose behalf they are paid. The adoption and imple-mentation of these recommendations, as well as oth-ers that will be developed in future reports, shouldhelp increase the financial and emotional supportavailable to children of low-income parents, promoteeffective co-parenting relationships, and, most impor-tantly improve outcomes for these fragile familieswho are struggling so mightily for a better life.

I. Parents should be fully informed aboutpaternity establishment.

To improve the information available to parents.states should develop comprehensive and honesteducation programs that are designed to informthree audiences of the meaning and consequencesof paternity establishment: the general public, staffof public and private agencies and organizations thatassist parents in the paternity establishment process.and parents who have not established paternity.

a. States should develop culturally andlinguistically sensitive public educationcampaigns to improve the public'sunderstanding of paternity establishment.

The messages of these campaigns should be hon-est about the economic and other consequences ofestablishing paternity for children and parents,including information about the potential benefits ofestablishing, early in a child's life, a lasting legal rela-tionship between the child and both parents. Thedevelopment of these campaigns should include aprocess for input by community-based organizationson the appropriateness of materials and messagesand effective ways of communicating them. Somematerials should be designed for school audiences.

b. States should develop educationalmaterials for parents and prospective parentsthat are sensitive to the issues of race,gender, sexual orientation, domestic violence,cultural and socio-economic circumstancesand that provide specific and honestinformation about the rights andresponsibilities that accompany paternityestablishment

These materials should explain to parents, includ-ing minor parents, the process for acknowledgingpaternity (and rescinding an acknowledgment). Theyshould address the special rules and consequencesfor individuals who are receiving or have receivedpublic assistance. They should provide informationabout the legal rights and responsibilities that flowfrom paternity establishment, including in the areasof child support, custody, and visitation. And theyshould provide information about other implicationsof paternity establishment, for example, on immigra-tion and citizenship status and on potential liabilityfor statutory rape.

c. States should provide parents who bothwant to establish paternity with access to asimple and accessible voluntary paternityacknowledgment process, not limited to thehospital setting.

BEST COPY AVAILABLE

NAZIONAL WONEN'S LAW CENTER CENTER ON FATHERS, FAMILY, AND PUBLIC POLICY

28

Family Ties

IV. RECOMMENDATIONS FOR IMPROVING PATERNITY ESTABLISHMENT PRACTICES AND PROCEDURES

FOR LOW-INCOME MOTHERS. FATHERS AND CHILDREN

Because many hospital maternity stays are verybrief and the period of time surrounding childbirth isemotionally and physically stressful and tiring forboth parents. it is important that parents have otheropportunities to acknowledge paternity voluntarilyBut venues should he selected carefully to ensurethat staff can adequately handle the additionalresponsibilities. In addition to hospitals, child supportenforcement offices, and birth records offices, possi-ble settings include social service providers such asHead Start and other child care centers and, in someinstances, community-based organizations. However,already-overburdened community organizations.agencies and service providers may need additionalresources to provide the additional services. Statesshould not impose fees on parents who want toacknowledge paternity in any authorized setting.

d. States should ensure that the staff ofagencies, institutions and organizationsauthorized to provide paternity establishmentservices are adequately trained to providecomplete and accurate information toparents about the rights and responsibilitiesassociated with paternity establishment.

The training should ensure that staff provide hon-est and accurate information and do not mislead orhide information from parents in order to achieve astate's goal of increasing the number of paternitiesestablished. It should ensure that staff help parentsof children who are receiving or have received publicassistance understand the rules that particularlyapply to then) and their effect on both parents. Itshould ensure that staff understand the manifesta-tions and consequences of domestic violence (seerecommendation 4) and know how to provide par-ents with appropriate resource and referral servicesif these are needed. It should ensure that staff under-stand and communicate the legal consequences ofestablishing paternity, including for minors, and canprovide referrals to parents who need more detailedinformation or additional help, such as legal services.

It should ensure that staff do not emphasize theimportance of identifying the biological parents of achild to a degree that negates the value of other par-enting arrangements and networks, for example, byundermining the role that extended families andother committed adults play in raising a child or bybeing insensitive to family arrangements that reflectthe norms of a particular culture, race, religion orsexual orientation.

e. States should ensure that forms for thevoluntary acknowledgment of paternityinclude information about the effect ofpaternity establishment on custody andvisitation.

The forms used to acknowledge paternity shouldexpressly inform parents about the effect that signingthe form will have on parents' immediate and longer-term custody and visitation rights. They shouldinclude information on the rules for determiningimmediate custody that operate in a particular state,and inform parents how to otherwise resolve cus-tody issues.

2. rade r n ity gitablighwiehishould ptoi be,coerced by the state against the wishes ofboth parents.

Paternity establishment creates a legal relation-ship that carries with it enormous implications forthe lives of the involved parties, including the rightto seek custody of, or visitation with, a child and theresponsibility of providing economic support.Stronger, better relationships for supporting childrenare likely to be created and sustained if paternityestablishment is desired by at least one of the par-ents, not coerced by the state.

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IV. RECOMMENDATIONS FOR IMPROVING PATERNITY ESTABLISHMENT PRACTICES AND PROCEDURESFOR LOW-INCOME MOTHERS. FATHERS AND CHILDREN

a. Congress and the states should eliminatethe requirements that custodial parents whoseek public assistance assign their childsupport rights to the state and cooperate withthe state in establishing paternity andestablishing and enforcing child support

b. States should strongly discourageprosecutorial strategies that use threats ofcriminal prosecution for statutory rape toestablish paternity.

States should aLso generally discourage the use byprosecutors of voluntary acknowledgments of pater-nity as evidence in statutory rape prosecutions.

3. Paternity estabiishrnew: proceduresshould be fair.

States should have fair procedures for establish-ing paternity that afford both parents due processand include protections against domestic violence

(see Recommendation 4).

a. States should provide prompt and effectiveassistance to both fathers and mothers whowish to initiate paternity proceedings, withprotections for victims of domestic violence.

As federal law requires, states should assist fathers

as well as mothers in establishing paternity; but. in asituation in which there is a risk of abuse or violence,the establishment of paternity should be pursuedcarefully and with special protections (seeRecommendation 4).

b. States should have clear procedures forrescinding a voluntary acknowledgment ofpaternity, within 60 days of signing, that areeasily accessible to low-income parents andothers without legal representation.

States should make information about these pro-cedures available to parents, the staff of public andprivate institutions and organizations that assist par-ents in the paternity establishment process, and thegeneral public. The rescission process, and informa-tion provided about it. should address all of its legalconsequences, such as rescission of any custody, visi-

tation or other rights created by the acknowledgmentand amendment of the birth certificate, if necessary.

c. States should make greater efforts toensure actual notice to the putative fatherbefore entry of a default judgment ofpaternity.

d. States should not require either parent topay for genetic testing, (f the parent is low-income.

e. State laws should expressly address theextent to which minors may acknowledgepaternity voluntarily.

If a state requires a minor to he represented by aparent or guardian ad litem in order to acknowledgepaternity (and the minor in fact has such representa-tion), the usual recission period (60 days from thedate of signing) should apply. If the state permits aminor to acknowledge paternity without representa-tion by a parent or guardian ad litem, but the minorin fact acknowledges paternity with such representa-tion, the usual 60-day recission period should alsoapply If, however, the minor acknowledges paternitywithout such representation, he or she should have60 days from the date the minor turns eighteen torescind. In addition, states should have a process bywhich a minor can get a guardian ad litem who isnot a parent appointed as a representative, to pro-tect against parental abuse or coercion.

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4. Paternity establishment policies and,rocedures. and the procedures that finw

from paternity establishment, should taicedomestic violence into account.

Paternity establishment does not merely create alegal relationship between a father and a child. Itestablishes a legal basis for future interactionsbetween the father and the mother on issues of childsupport, custody, and visitation that may create risksof domestic violence unless additional safeguardsand services are in place. Future Common Groundmeetings will develop recommendations for thesesafeguards and services; the recommendations thatfollow concern the process of paternity establish-ment itself.

a. If federal law is not changed to eliminatethe requirement that public assistanceapplicants must cooperate with paternityestablishment proceedings and child supportenforcement then states should ensure thatall public assistance applicants areadequately informed about and given ameaningful opportunity to claim the "goodcause" exception to the cooperationrequirement.

As part of states' efforts to improve implementa-tion of the "good cause" exception, states shouldacknowledge that a woman's assessment of the dan-ger she or her children face can change over time,and should therefore provide women with multiple,effective opportunities to access or halt the process-es that lead to paternity establishment.

b. States should ensure that individuals whoacknowledge paternity voluntarily actuallydo so without coercion, or fear or threat ofdomestic violence.

Hospital staff should screen for domestic violencebefore attempting to proceed with a voluntaryacknowledgment. Given the age disparity betweenmany minor mothers and their partners, and the con-sequent risk of coercion, domestic violence screeningin this population is especially important. Staff at loca-tions other than hospitals who are engaged in thepaternity acknowledgment process should he trainedabout domestic violence and its effect on whether anacknowledgment is truly voluntary. Finally, all institu-tions, agencies and organizations involved in the vol-untary paternity acknowledgment process shouldprovide domestic violence resource and referral serv-ices to parents who need them.

c. States should ensure that domestic violencesurvivors who with to establish paternity, orwhose partners or former partners areseeking to establish paternity, are adequatelyprotected.

Protections should include procedures to ensurethat direct contact with the partner or former part-ner is minimized, addresses and other personal iden-tifying information are kept confidential, and the sur-vivor is able to obtain representation on custody andvisitation challenges that may arise as the result ofestablishing paternity

5.The policies associated with paternityestablishment should increase theeconomic and emotional support availableto children of low-income parents.

Although the focus of this report is paternityestablishment, Common Ground participants con-cluded that its recommendations should begin toaddress related policy issues, to ensure that paternityestablishment promotes the ultimate goal of increas-ing positive outcomes for children. These recom-mendations will be further developed in subsequentCommon Ground reports.


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, FANILT, AND USLIC


a. Congress and the states should adoptpolicies that give child support payments tochildren to increase their well-being, not tothe government as reimbursement for publicassistance.

If federal law is not changed to eliminate therequirement that public assistance applicants mustassign their child support to the state (seeRecommendation 2a), Congress should require. or atleast strongly encourage, states to adopt a policy for

the pass-through and disregard of child support.Even in the absence of federal law changes, states

should utilize the flexibility they have under "LANE toadopt such policies.

b. States should eliminate public debt andother policies, such as requiringreimbursement of Medicaid birthing costs,that are unrelated to ability to pay andimpose impossible financial burdens on low-income parents.

c. States should provide prompt and effectiveassistance to parents who want assistance inestablishing or enforcing a child supportorders

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d. States should ensure that awards ofcurrent child support are realistic, andeasier for low-income parents to modify ascircumstances change.

e. States should ensure that adequate socialservices, including job training, education,and social services such as child care aremade available to low-income custodial andnoncustodial parents, especially minorparents, to increase their ability to providesupport to their children.

f States should ensure that all parents whopursue paternity establishment are offeredthe opportunity to participate in parentingeducation programs that assist in thedevelopment of responsible, respectful andreliable cooperative parenting.

Participation in a parenting education programshould be voluntary, and should not be a prerequi-site to receipt of other social services. However,opportunities to access such programs should beavailable, at a minimum, after parents have acknowl-edged or established paternity, and ideally shouldalso be available prior to the initiation of paternityproceedings.

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ENDNOTES

1. For a more detailed description of the historicalbackground contained in the next few para-

graphs, see Irwin Garfinkel et al., A BriefHistory of Child Support Policies in the UnitedStates. in Fathers Under Fire: The Revolution inChild Support Enforcement 14-30 (Irwin

Garfinkel et al., eds., 1998) [hereinafter Fathers

Under Fire]; Paula Roberts, A Guide toEstablishing Paternity for Non-MaritalChildren: Implementing Provisions of thePersonal Responsibility and WorkOpportunities Reconciliation Act of 1996(Center for law and Social Policy 1996) [here-

inafter Roberts. Establishing Paternity].

2. See P.L. 93-647, codified at 42 U.S.C. § 651 et

seq. (1975) (current version as amended codi-

fied at 42 U.S.C. § 651 et seq. (1999)).

3. See 42 U.S.C. § 654 et seq. (1975) (current ver-

sion as amended codified at 42 U.S.C. § 654 et

seq. (1999)).

4. See 42 U.S.C. § 602(a)(26) (1989) (current ver-

sion as amended codified at 42 U.S.C. §

608(a)(3) (1999)).

5. See 42 U.S.C. § 654(6) (1989) (current versionas amended codified at 42 U.S.C. § 654(4)

(1999)).

6. For a summary of the legislative history of the

child support program, see Committee on Ways

and Means, U.S. House of Representatives,

1998 Green Book: Background Material andData on Programs within the Jurisdiction ofthe Committee on Ways and Means 545-547,

611-626 [hereinafter 1998 Green Book].

7. See Office of Child Support Enforcement, 22ndAnnual Report to Congress 61, Table 2 (1999)

[hereinafter OCSE,22nd Annual Report].8. For a more detailed description of the historical

background contained in this paragraph. see

Roberts. Establishing Paternity, supra note 1,

at 8-10.

9. See P.L. 98-378 § 33 (1984) (current version

codified at 42 U.S.C. § 666(a)(5)(A) (1999))..

10. See EL 100-485 § 111 (1988) (current versioncodified at 42 U.S.C. § 666(a)(5)(B)(i) (1999)1.

II. See P.L. 103-66 § 13721 (1993) (current versioncodified at 42 U.S.C. § 666(a)(5)(G) (1999)).

12. See P.L. 103-66 § 13721 (1993) (current version

codified at 42 U.S.C. § 666(a)(5)(C) (1999)).13. See P.L. 103-66 § 13721 (1993) (current version

codified at 42 U.S.C. § 666(a)(5)(G) (1999)).

14. See 1998 Green Book, supra note 6, at 556-560.

Compare P.L. 100-485 § 111(a) (1988) with P.L.

103-66 § 103721 (1993) (current version as

amended at 42 U.S.C. § 652(g) (1999)1.

15. See generally 1998 Green Book, supra note 6,

at 620-626; Roberts. Establishing Paternity,supra note 1; Jacquelyn Boggess, A Q & A forUnmarried: Noncustodial Fathers-AQuestion and Answer Resource on PaternityEstablishment and Child Support (Center onFathers, Families, and Public Policy 1997).

16. See P L 104-193 § 103 (current version codifiedat 42 U.S.C. §§ 408(a)(3). 409(a')(9) (1999)).

17. See 42 U.S.C. § 666(a)(5)(C)(iv) (1999)

18. See 42 U.S.C. § 666(a)(5)(D)(ii) (1999).19. See 42 U.S.C. § 666(a)(5)(E) (1999).20. See 42 U.S.C. § 666(a)(5)(D)(iii) (1999).21. See 42 U.S.C. § 666(a)(5)(13)(i) (1999).

22. See 42 U.S.C. § 666(a)(5)(C)(iii)(11)(aa) (1999);45 C.F.R. § 303.5 (g)(1)(ii)(A) (1999).

23. See 42 U.S.C. § 666(a)(5)(C)(iii)(111(bb) (1999).

24. See id.25. See 45 C.F.R. § 303.5(g)(2)(i)(D) (1999).26. See 42 U.S.C. §§ 666(c)(1)(a),

666(a)(5)(B)(ii)(1), 666 (a)(5)(F)(iii) (1999).27. See 42 U.S.C. §§ 666(a)(5)(H), 666(a)(5)(I),

666(a)(5)(j) (1999).28. See 42 U.S.C. § 666(a)(5)(L) (1999).

29. See 42 U.S.C. § 602(a)(26)(B) (1989) (currentversion as amended codified at 42 U.S.C. §

608(a)(2) (1999)).30. See 42 U.S.C. § 608(a)(2) (1999).

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31. See Vicki lbretsky, State Child SupportCooperation and Good Cause: A PreliminaryLook at State Policies (Center for Law andSocial Policy 1998) [hereinafter Turetsky. StateChild Support]. Some states impose the full-family sanction immediately; others do so onlyif the noncooperation has persisted for a peri-od of time or been repeated. See id.

32. See 45 C.F.R. § 232.12 (1995), superceded by 42U.S.C. § 654(29)(A) (1999).

33. See 42 U.S.C. § 654(29)(A) (1999).34. See Turetsky. State Child Support, supra note

31, passim.35. See 42 U.S.C. § 654(29)(D) (1999).36. See 42 U.S.C. § 602(a)(26)(B) (1989) (current

version codified at 42 U.S.C. § 608(a)(2)(1999)).

37. See 45 C.F.R. § 232.42 (1995), superceded by 42U.S.C. § 654(29)(A) (1999).

38. See 42 U.S.C. § 654(29)(A) (1999).39. See Jody Raphael & Richard Tolman, Trapped

by Poverty, Trapped by Abuse: New EvidenceDocumenting the Relationship betweenDomestic Violence and Welfare (1997) [here-inafter Raphael & Tolman, Mapped by Poverty];Project for Research on Welfare, Work, andDomestic Violence, Trapped by Poverty,Dapped by Abuse, Supplement 1 (1998) [here-inafter ?hipped by Poverty, Stipp. 1].

40. See OCSE, 22nd Annual Report 106, supranote 7, Table 46.

41. See 42 U.S.C. § 602(a)(26)(B) (1989) (currentversion as amended codified at 42 U.S.C. §654(29) (1999)).

42. See 42 U.S.C. § 654(29) (1999).43. See 42 U.S.C. § 609(a')(5) (1999).44. See 42 U.S.C. § 654(29) (1999).45. See 42 U.S.C. § 602(a)(26)(A) (1989) (current

version as amended codified at 42 U.S.C. §608(a)(3) (1999)).

46. See P L. 98-369 § 2640 (1984) (current versionas amended codified at 42 U.S.C. § 657(a)(1)(1999)).

47. See 42 U.S.C. § 657(b)(2) (1989) (current ver-sion as amended codified at 42 U.S.C. §657(a)(1) (1999)).

48. See 42 U.S.C. § 608 (a)(3) (1999). The regula-tions issued by the Department of Health andHuman Services to implement this provision ofthe statute clarify that only certain forms of aidfunded by TANF count as "assistance" for pur-poses of child support assignment. Cash pay-ments and vouchers designed to provide forongoing basic needs are "assistance." Othertypes of help are not considered "assistance,"including non-recurring short-term benefits,work subsidies paid to a third party, supportiveservices such as child care and transportation,refundable earned income tax credits, pay-ments to an individual Development Account,and services such as counseling and case man-agement. See 45 CFR § 260.31(b) (1999). Theseregulations allow working poor families whoreceive various supportive services to keepmore of the child support paid on their behalf,since the receipt of these services will not trig-ger an assignment.

49. See 42 U.S.C. § 657(a)(1) (1999).50. As of January 1, 1999. 27 states and the District

of Columbia retained all of the child supportcollected; 23 states passed through some childsupport. See Paula Roberts, State Policy Re:Pass-Tbmugb and Disregard of CurrentMonths Child Support Collected for FamiliesReceiving TANF-Funded Cash Assistance(Center for Law and Social Policy 1999).

51. See OCSE, 22nd Annual Report 75, supra note7. Table 16.

51. See id.

53. See 42 U.S.C. § 657(a)(2)(A) (1999).54. Compare 42 U.S.C. § 657(c) (1989) with 42

U.S.C.§ 657(a)(2)(A) (1999).

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55. See 42 U.S.C. § 657(a)(2)(B)(iv) (1999). Therules governing the distribution of child sup-port for families that formerly received publicassistance are complex, and have been the sub-ject of policy guidance from the federal Officeof Child Support Enforcement. See Office ofChild Support Enforcement. U.S. Departmentof Health & Human Services, ActionTransmittal 97-17 (1997). See also Office ofChild Support Enforcement, U.S. Departmentof Health & Human Services, ActionThansmittal 98-27 (1998).

56. See 42 U.S.C. § 652 (g)(1)(A) (1999). Stateshave some flexibility in deciding what basepopulation to use in measuring their paternityestablishment percentage. They may choose astheir base population all minor children bornout of wedlock who are receiving TANF or pub -lic/foster care assistance, who are receiving IV-Dservices, or who are residing in the state. See42 U.S.C. § 652(g)(2) (1999).

57. See 42 U.S.C. § 652(g)(1) (1999). States that failto meet the 90% standard can avoid a penaltyby demonstrating sufficient improvement inthe next fiscal year. See id. For example. thestatute provides that states with paternityestablishment percentages between 75 and90% must improve by two percentage pointsper year; states at less than 40% must improveby six percentage points. See id.

58. See P L 105-200 (1998) (current versioncodifiied at 42 U.S.C. § 658a(b) (1999)).

59. See Office of Child Support Enforcement. FY1994 Preliminary Data Report 8, Table 2(1999).

60. .See Sally Curtin & Joyce Martin, Births:Preliminary Data for 1999, 48 National VitalStatistics Reports 13 ("able 6) (2000). The pro-portion of births to unmarried parents is high-er among Blacks (69%) and Hispanics (42%)than among Whites (27%). See id.

61. See Sarah McClanahan & Irwin Garfinkel, TheFragile Families and Child WW1being Study:Questions, Design. and a Feu' PreliminaryResults, Working Paper 00-07-FF (PrincetonUniversity Bendheim-Thoman Center forResearch on Child Wellbeing 2000). The FragileFamilies and Child Wellbeing Study will follow anew birth cohort of approximately 4,700 chil-dren, including 3,600 children born to unmar-ried parents. The new data will be representa-tive of nonmarital births in each of 20 cities andin U.S. cities with populations over 200,000.Both mothers and fathers will be followed for aleast four years, and in-home assessments ofchildren's development will be carried outwhen the child is four years old.

62. .See Irwin Garfinkel & Sara McLanahan, FragileFamilies and Child Well-Being: A survey ofnew parents 21 Focus 9-11 (2000) [hereinafterGarfinkel & McLanahan, Fragile Families].

63. See id.64. See id65. See Larry Bumpass & 1-Isien -Hen Lu. 7i-ends

in Cohabitation and Implications jbrChildren's Family Context in the US., CDEWorking Paper No. 98-15. 13-14 (University ofWisconsin- Madison Center for Demographyand Ecology 1998).

66. See Larry Bumpass & Hsien-Hen Lu,Cohabitation: How the families of U.S chil-dren are changing, 21 Focus 5-8 (2000).

67. See Garfinkel & Mclanahan, Fragile Families,supra note 62, at 10.

68. See id.69. See id.70. See id. See also Sara McLanahan et al.. Unwed

Parents or Fragile Families% Implications forWelfare and Child Support Policy, WorkingPaper 00-04-FF 20 (Princeton UniversityBendheim-Thoman Center for Research onChild Wellbeing 2000).

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END NOTES

71. Four studies of poor women, mostly welfarerecipients, found that 15 to 32% were currentlyexperiencing domestic violence from an inti-mate male partner; the reported lifetime preva-lence ranged from 34 to 65%. See Raphael &Tolman, Trapped by Foyers); supra note 39. at

5. The studies did not indicate whether theabuser was the father of the woman's child. See

id. In a survey of over 1,000 female applicantsfor public assistance in Colorado, 40% dis-

closed current or past abuse as an adult; 75% ofthese women (30% of the total) reported thatthe abusers were the Fathers of one or more of

their children. See Jessica Pearson et al., ChildSupport and Domestic Violence: The VictimsSpeak Out. in Th-apped by Poverty, Supp.l,

supra note 39, at 1.

72. See Garfinkel & McLanahan, Fragile Families,supra note 62, at 11

73. See id.

74. See Mel Halpern, Poverty Among ChildrenBorn Outside of Marriage: PreliminaryFindings from the National Survey ofAmerica's Families. Assessing the New

Federalism Discussion Paper 99-16, 6-12, Tables

1 & 2 (Urban Institute 1999) [hereinafterHalpern, Poverty Among Children]. The study

did not analyze the impact in differences inFathers' characteristics.

75.. See id. at 6-17, Tables 1 & 2.

76: See Elaine Sorenson & Mel Halpern, ChildSupport Enforcement: How Well Is It Doing?,Assessing the New Federalism Discussion Paper

99-11, 2-4 (Urban Institute 1999); See alsoHalpern, Poverty Among Children, supra note74, at 9; Judith Selzer, Child Support and ChildAccess: Experiences of Divorced andNonmarital Families, in Child Support: TheNext Frontier 69, 73-74 (J. Thomas Oldham &Marygold Melli, eds., 2000) [hereinafter Selzer,

Child Support].

See Elaine Sorenson & Chava Zibman, To WhatExtent Do Children Benefit from ChildSupport?. Assessing the New Federalism

Discussion Paper 99-11, 6-7 (Urban Institute2000). Child support provides over one-quarterof the Family income of all poor children whoreceive it. See id.

78. See Selzer, Child Support, supra note 76, at 69,73-74.

79. See id. at 74 (more secure economic circum-

stances of fathers for whom legal paternity isestablished relative to those without paternitymay account for different payment rates);Jessica Pearson & Nancy Thoennes,

Establishing liaerrzity in Colorado: FinalReport iv (Center for Policy Research 1997) .

[hereinafter Pearson & Thoennes, EstablishingPaternity in Colorado] (parents who establishpaternity voluntarily have more positive rela-tionships with each other at the time of birthand the fathers are more likely to be employedfull time).

80. An analysis of the various studies that have esti-mated the income of nonresident parentsfound that most studies show income fornever-married fathers to be typically in the highteens as compared to income in the $30,000-40,000 range for divorced fathers (using 1995dollars). See Irwin Garfinkel, et al., APatchwork Portrait of Nonresident Fathers, inFathers Under Fire, supra note 1, at 31-60.

81. See 42 U.S.0 § 608(a)(7) (1999).

82. Nearly half the states have either a shorter life-time limit or a limit on the number of monthswithin a certain period that a family can receiveassistance (for example, 24 months in a 48- or60-month period, in addition to a 60-monthlifetime limit). See U.S. Department of Health &Human Services, Administration for Children &Families, Temporary Assistance to NeedyFamilies (TANF) Program. Second AnnualReport to Congress 162 (1999) [hereinafterTANF Program Second Annual Report].

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83. See 42 U.S.C. § 608(a)(2) (1999). About 14states impose full-family sanctions for the firstinstance of noncompliance; 36 states imposethem as their most severe penalty See JanKaplan. The Use of Sanctions Under TAKEWelfare Information Network Issue Notes. Vol.

3, No. 3 (1999).84. See 42 U.S.C. § 608(b)(3) (1999).85. States are required to have a good cause excep-

tion for child support cooperation require-ments, but states have flexibility to decidewhether to give special consideration to victimsof domestic violence with respect to otherTANF requirements. See 42 U.S.C. §602(a)(7)(c) (1999). Twenty-eight states havecertified that they are adopting the "FamilyViolence Option," and will screen for and assistvictims of domestic violence. See TANFProgram Second Annual Report, supra note82, at 167-168. Most of the remaining statesreport that they are considering adopting theoption or addressing domestic violence inanother way. See id. Only limited information isavailable on how state policies to addressdomestic violence are being implemented. SeeJody Raphael & Sheila Haennicke. The FamilyViolence Option: An Early Assessment, RevisedDraft U (1998). -

86. See U.S. General Accounting Office, WelfareReform: State Sanction Policies and Number ofFamilies Affected, HEHS-0044 (2000).

87. The eligibility restrictions are complex and varyby program. See Fredrica Kramer, WelfareReform. and Immigrants: Recent Developmentsand a Review of Key State Decisions WelfareInformation Network Issue Notes, Vol. 1. No. 7(1997). The Balanced Budget Act of 1997restored SS1 and Food Stamp eligibility to somelegal immigrants who were living in the countrybefore August, 1996, when PRWORA waspassed. See P.L. 105-33 § 5302 (1997).

88. The Department of Health and Human Servicesreports that the number of families receivingpublic assistance dropped from 4,628,000 inJanuary, 1996. before PRWORA was enacted, to2,358,000 in December, 1999, a 49% decrease.See Adminstration for Children & Families, U.S.Department of Health & Human Services,Changes in TANF Caseloads, available athttp://www.acldhhs.gov/news/statsicaseload.htm (last modified Aug. 22, 2000).

89. The poverty rate among female-headed house-holds with children under 18 declined from36.9% in 1996 to 33.8% in 1998, a decline of8%. See U.S. Census Bureau. Poverty in theUnited States: 1998, Current PopulationReports P60-207, Table B-3 (1999).

90. Food Stamp caseloads have declined nearly asrapidly as TANF caseloads, although about two-thirds of families that left the Food Stamp pro-gram appear to have incomes low enough toqualify for benefits. See Sheila Zedlewski &Sarah Brauner, Are the Steep Declines in FoodStamp Participation Linked to Falling WelfareCaseloads, New Federalism: National Survey ofAmerica's Families, Series B. No. B-3, at 1,Figure 1, & 2. Table 2 (1999). The poorest for-mer welfare families-those with incomesbelow 50% of poverty-were especially likely toleave the Food Stamp program. See id. at 2,'able 2.

91. An estimated 675,000 people, a majority ofthem children, lost Medicaid coverage andbecame uninsured since PRWORA. See RachelKlein, Losing Health Insurance: UnintendedConsequences of Welfare Reform 1 (1999). Seealso Bowen Garrett & John Holahan, WelfareLeavers, Medicaid Coverage, and PrivateHealth Insurance, New Federalism: NationalSurvey of America's Families, No. B-13 (2000).

92. See Wendell Primus et al, The Initial Impactsof Welfare Reform on the Incomes of Single-Mother Families viii-x (Center on Budget andPolicy Priorities 1999).

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ENDNOTES

93. Most state paternity workers believeandresearch has confirmedthat providing explicitinformation about the relationship betweenpaternity establishment and child supportenforcement significantly reduces the voluntaryacknowledgment rate, especially among thosemothers and fathers who had a priorAFDC/TANF or Medicaid history. See Pearson &Thoennes, Establishing Paternity in Colorado,supra note 79, at 19-30. Federal law requiresstates to notify mothers and fathers about thelegal consequences of paternity establishmentbefore they sign a voluntary acknowledgment.see 42 U.S.C. § 666(a)(5)(C)(i) (1999): however,states pressured to meet federal standards forpaternity establishment. "may have to choosebetween candor and high acknowledgmentrates," Pearson & Thoennes. EstablishingPaternity in Colorado, supra note 79, at 30.

94. For a discussion of the reasons why changingthe child support program from a welfare costrecovery program to a program that collectschild support for families would be more con-sistent with the goals of welfare reform, see

Vicki Turetsky, What If All the Money CameHome? (Center for Law and Social Policy 2000).

95. See U.S. Department of Health & HumanServices, Temporary Assistance for NeedyFamilies (TANF) Program, Third AnnualReport to Congress 196 (2000) (28 statesrequire work immediately upon receipt ofbenefits, nine states require work within sixmonths or less, 13 states require work within24 months, one state under waiver requireswork within 30 months).

96. Relationship issues are discussed in more detailinfra, Section 111-2. In most cases, a custodialparent would be the one to seek a supportorder. However, a noncustodial parent mightwant to have an order established to ensurethat the amount of his obligation reflected hisactual income, and was not set retroactivelybased on welfare assistance payments or a levelof imputed income that was higher than hisactual income.

97. See generally Sara McIanahan & Gary Sandefur,Growing up with a Single Parent: What Hurts;What Helps (1994); Judith Wallerstein & JanetR. Johnston, Children of Divorce: RecentFindings Regarding Long-Term Effects andRecent Studies of Joint and Sole Custody, 11Pediatrics in Review 197-204 (1990).

98. Witnessing, as well as experiencing, abuse isdamaging to children. See. e.g., Adele Harrell,Children in Violent Homes, in Urban Institute,Family Violence: A Guide to Research (1993).In addition, woman battering and child abuseoften occur in the same Family. See SusanSchechter & J.L. Edleson, In the Best Interest ofWomen and Children (1994).

99. See Pearson & Thoennes. Establishing Paternityin Colorado, supra note 79, at iv (strongestcorrelate of voluntary paternity establishment isparental relationship).

100. See Raphael & Tolman. flapped by Poverty,supra note 39, at 5.

'NATI'ON'AL WOMEN'S LAW CENTER CENTER ON FATHERS, FAMILY, AND PUBLIC POLICY


101. "Paternity researchers are unanimous in con-cluding that the best time to establish voluntarypaternity is at the time the child is born andthat the likelihood of establishing paternitydeclines as children age." Pearson & Thoennes,Establishing Paternity in Colorado. supra note79, at 3. See also Robert G. Williams, et al.,Massachusetts Paternity AcknowledgmentProgram: Implementation Analysis andProgram Results 41-43 (Policy Studies. Inc.1995). In Massachusetts, in 1994-95, in-hospitalacknowledgments at birth accounted for 84%of voluntary acknowledgments. post-birthacknowledgments accounted for about 16%; inBoston. the only place for which such datawere available, just under half of the post-birthvoluntary acknowledgments were for childrenless than a year old, just over half were for chil-dren over a year old. See id.

102. See 42 U.S.C. § 666(a)(5)(B)(ii)(1) (1999).103. See 42 U.S.C. § 666(a)(5)(B)(ii)(II) (1999).104. See 42 U.S.C. § 666(a)(5)(D)(ii) (1999).105. See id.106. See § 666(a)(5)(D)(iii) (1999).107. See 64 Fed. Reg. 46, 11802-11810 (1999),

amending 45 C.F.R. § 302 (1999).108. See Roberts, Establishing Paternity, supra note

1, at 27.109. See, e.g., S.D. Codified laws § 25-5-25 (1999).110. See 42 U.S.C. § 666(a)(5)(C)(i) (1999).111. See Wyo. Stat. Ann. § 14-2-102(c) (2000); W. Va.

Code § 48(A)-6-(b) (2000).

112. See Mass. Gen. Law. Ann. ch. 209(C) § 11(2000); Mont. Code Ann. *40-5-232(3) (2000).

113. See Roberts. Establishing Paternity, supra note1, at 26-30.

114. See 42 U.S.C. § 666(a)(5)(D)(ii)(11) (1999).115. See 42 U.S.C. § 666(a)(5)(H) (1999).116. A study of how California courts are imple-

menting that state's child support guidelinefound that more than 50% of child supportorders were obtained by default. Nearly 75% ofdistrict attorney (IV-D) orders were obtained bydefault. See Judicial Council of California,Review of Statewide Uniform Child SupportGuideline 1998. at 6-16 (1998). The study didnot report on the percentage of paternitydeterminations that were obtained by default.

117. See 8 U.S.C. § 1427(a)(3) (2000).

NATIONAL WOMEN'S LAW CE

39CENTER ON FATHERS, FAMILY, AND FIJIILIC..VOLICY;i.

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PARTICIPANTS IN THE COMMON GROUND MEETING.ON PATERNITY ESTABLISHMENT*

Daniel Ash, Director of CommunicationsCenter on Fathers, Families and Public Policy

Jacquelyn Boggess, Senior Policy AnalystCenter on Fathers, Families and Public Policy

Nancy Duff Campbell, Co-PresidentNational Women's Law Center

Karen Czapanskiy, Professor of LawUniversity of Maryland

Joan Enunacher, Vice President and DirectorFamily Economic Security, National Women'slaw Center

Cristina Begotia Firvida, Senior CounselNational Women's Law Center

Geraldine Jensen, PresidentAssociation for Children for Enforcement ofSupport (ACES)

Earl S. Johnson, Research AssociateManpower Development Research Corporation

Joseph Jones, DirectorBaltimore Healthy Start - Men's Services

Vicky Kimbrell, Family Law Attorney

Georgia Legal Services

NATIONAL WOMEN'S LAW CENTER

40

Leslye Orloff, DirectorNatiOnal Policy Program, Avuda

David Pate, Executive DirectorCenter on Fathers, Families and Public Policy

Jessica Pearson, Executive DirectorCenter for Policy Research

Wendy Pollack, Staff AttorneyPoverty law Project, National Clearinghousefor Legal Services

Paula Roberts, Senior Staff AttorneyCenter for Law and Social Policy

Elaine Sorenson, Research AssociateUrban Institute

Jerry Tello, DirectorNational Latino Fatherhood and Family Institute

Constance Williams. Associate Professor andDirector of Ph.D. ProgramHeller Graduate School for Advanced Studiesin Social Welfare, Brandeis University

Oliver Williams, DirectorNational Institute on Domestic Violencein the African American Community

tigilliations listed as of the date of themeeting.

N FATHERS. FAMILY, AND PUBLIC POLICY

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LJA C:=3 - ERIC · Jacquelyn Boggess and David Pate are grateful for the assistance of Daniel Ash and Marguerite Roulet. Both Centers appreciate the assistance of Keith Davis, Shauna