Welfare Reform Led to Crisis in False Paternity Judgments

By Michael McCormick and Glenn Sacks

Child support enforcement programs are supported by all sides of the political spectrum, from women’s advocates on the left to traditionalists on the right. While this popularity is sometimes understandable, it has also allowed glaring and inexcusable abuses to fester and grow. Of these, none is more egregious than when men are forced to pay 18 years of child support for children who are not theirs, and who in many cases they’ve never even met.

In "The Innocent Third Party: Victims of Paternity Fraud," a new article in the American Bar Association’s Family Law Quarterly, Washington DC attorney Ronald K. Henry details how this problem developed, and proposes some common sense solutions. The problem is relatively new, and stems in large part from the federal Personal Responsibility and Work Opportunity Act of 1996, which restructured the welfare system.

The Act mandates that a mother seeking welfare benefits for her child must provide the name of the child’s father so the state can recoup its costs by securing a child support order.

According to an Urban Institute study, most of the men targeted are low-income and uneducated, and the court pleadings in these child support cases are unnecessarily complex. Many men are left confused or doubtful about the seriousness of the proceedings. Moreover, substitute service, where the court summons is often left at an erroneous last known address, is frequently used instead of personal service. When the putative father does not appear at his hearing, a default paternity judgment is entered against him.

A federal report shows that in many child support enforcement offices, half or more of the paternity judgments are entered by default. Of the 250,000 paternity judgments ordered in California each year, more than two-thirds are entered by default. Even when men obtain DNA tests clearing them of paternity, most courts rarely set aside these judgments.

The men who do receive the summonses and appear in court still face a stacked deck. Henry explains:

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

State child support collection efforts are heavily subsidized by federal dollars. Therefore, Henry asserts, the federal government could greatly reduce the problem of false paternity establishments by reimbursing states only for establishments which are confirmed by DNA tests. States could purchase bulk DNA tests at a cost per unit considerably less than even one month of child support.

States should also act to reduce default judgments by improving service of process and by making the procedure more understandable for litigants, few of whom have legal representation. In default judgment cases, DNA testing should be required as soon as the child support enforcement agency locates the putative father. And states should pass laws or institute policies which allow fallacious paternity judgments to be retroactively challenged.

Because of the indifference of both the states’ child support enforcement systems and their federal funders, no firm figures exist on how many men have been mistakenly defaulted into fatherhood. Henry estimates that the number could exceed one million.

Child support debtors receive little public sympathy, at times with reason. Yet the victims of false paternity judgments aren’t men trying to evade their legitimate responsibilities, nor are they Nicholas Barthas determined to ensure that their exes will never get a penny. They are instead victims of one of the most indefensible civil rights violations in America today— an injustice which cries out for redress.