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Department of Health and Human Services OFFICE OF INSPECTOR GENERAL Inspector General SEPTEMBER 1999 PATERNITY ESTABLISHMENT State Use of Genetic Testing OFFICE OF INSPECTOR GENERAL The mission of the Office of Inspector General (OIG), as mandated by Public Law 95-452, is to protect the integrity of the Department of Health and Human Services programs as well as the health and welfare of beneficiaries served by them.
This statutory mission is carried out through a nationwide program of audits, investigations, inspections, sanctions, and fraud alerts. The Inspector General informs the Secretary of program and management problems and recommends legislative, regulatory, and operational approaches to correct them. Office of Evaluation and Inspections The Office of Evaluation and Inspections (OEI) is one of several components of the Office of Inspector General.
It conducts short-term management and program evaluations (called inspections) that focus on issues of concern to the Department, the Congress, and the public. The inspection reports provide findings and recommendations on the efficiency, vulnerability, and effectiveness of departmental programs. HEADQUARTERS To obtain copies of this report, please call the Dallas Regional Office at 214-767-3310.
Reports are also available on the World Wide Web at our home page address: http://www.dhhs.gov/progorg/oei EXECUTIVE SUMMARY PURPOSE This inspection describes State policies and practices regarding the use of genetic testing to establish paternity and highlights innovative strategies for overcoming barriers to testing. BACKGROUND Widespread use of genetic testing has contributed to increases in the number of paternities established in recent years.
However, barriers may exist that inhibit the effective use of testing. Federal legislation requires States to empower their child support agencies with authority to order parties to submit to genetic testing. States agencies must make genetic testing available upon request of any party in a paternity case, pay for testing in some cases, and affirm that test results create a presumption of paternity.
The Federal government matches State funds to cover testing expenses, and States may recoup these costs from the father once paternity is established. To obtain information on how States use genetic testing, barriers to its use, and strategies to surmount barriers, we surveyed child support agency directors in all States. Additionally, in six focus States, we surveyed local child support office managers and interviewed local managers and staff during site visits to twenty-four offices.
FINDINGS States Use Genetic Testing in a Large Number of Paternity Cases. State child support agencies widely agree that genetic testing should be used when any uncertainty about paternity exists, and report using genetic testing in a significant number of paternity cases. All but one State typically tests all three parties - child, mother and putative father - maximizing the precision of test results.
Forty-three State child support agencies have the authority to administratively order parties to submit to genetic testing, while eight State agencies have no such authority, or must gain approval from the courts before requiring parties to test. Testing is occasionally used in cases in which paternity has already been established through voluntary acknowledgment or by default. Many Mothers and Putative Fathers Have Incentives Not to Test and Other Barriers, Such as Inconvenient Testing Locations, May Inhibit the Use of Genetic Testing.
The greatest barrier to the effective use of genetic testing is a desire on the part of mothers and putative fathers not to establish paternity. Putative fathers may simply wish to avoid paying child support, and mothers may prefer informal support. Other barriers that inhibit use of testing include: client fear of needles, lack of transportation, inconvenient testing locations, fees charged for testing, difficulty scheduling appointments for submission of DNA samples, and intentional delays by parties attempting to prolong or avoid paternity establishment.
Some Promising Strategies to Surmount Barriers Are Used Only In Limited Areas. Some child support staff immediately collect DNA samples from parties at their local office, thereby avoiding future delays and transportation problems. Many areas use buccal swab (cheek cells) sampling, instead of drawing blood, alleviating client fear of needles as a barrier to testing. To eliminate expense as a concern for putative fathers’ use of genetic testing, some States do not seek to recoup testing costs, or allow local staff discretion to waive recoupment.
However, few areas in the country appear to use all of these strategies. RECOMMENDATIONS Encourage All States to Give Agencies Administrative Authority to Order Genetic Testing. Child support agencies in eight States do not have the full authority to administratively order genetic testing as required by welfare reform. Having authority to order testing is a necessary first step for child support workers to administratively establish paternity.
Encourage States to Use Innovative Strategies, Such as Buccal Swab Sampling at Local Child Support Offices. Sample collection at local child support offices and use of buccal swab sampling help child support workers surmount barriers to the use of genetic testing. Staff report that collecting genetic samples from parties at the child support office helps avoid delays and transportation problems.
Buccal swab sampling appears to be safer, easier and faster than drawing blood, and often meets less resistance from parties who may be afraid of needles. Encourage States to Exercise Care in Allowing Genetic Testing in Cases in Which Paternity Has Already Been Established. Routine use of genetic testing in cases in which paternity has already been legally established through voluntary acknowledgment or by default may have serious long-term consequences.
Such practice could weaken the legal standing of acknowledged or defaulted paternities. State child support agencies should be encouraged to work with their legislatures, vital records agencies and court systems to develop consistent procedures regarding use of genetic testing when paternity has already been established. AGENCY COMMENTS The Administration for Children and Families (ACF) agreed with our recommendations that all States should grant their child support agency authority to order genetic testing, and should be encouraged to use innovative testing strategies.
Regarding our recommendation that they encourage States to exercise care in genetic testing when paternity has already been established, ACF prefers to leave this to State discretion but agreed to advise States that our findings suggest the need to review their own policies and practices. We have withdrawn a recommendation that OCSE encourage States to review their recoupment policies. INTRODUCTION PURPOSE This inspection describes State policies and practices regarding the use of genetic testing to establish paternity, and highlights innovative strategies for overcoming barriers to testing.
BACKGROUND Congress and States have taken advantage of modern scientific advances by encouraging the use of genetic testing in paternity establishment efforts. The Family Support Act of 1988 mandated that States require all parties in paternity cases to submit to genetic testing upon request of any party. The Act also set the Federal matching rate for genetic testing at 90 percent.1 Subsequent legislation required that genetic testing create a presumption of paternity, when test results meet thresholds established by the States.
The Personal Responsibility and Work Opportunity Act of 1996 required that States adopt expedited procedures that give child support enforcement agencies authority to order genetic testing “... without the necessity of obtaining an order from any other judicial or administrative tribunal...”2 Federal law also gives State agencies permission to recoup the cost of testing “... from the alleged father if paternity is established.
..”3 Legislation designed to encourage genetic testing has had a profound effect on the paternity establishment process across the nation. Child support staff now have a highly reliable method of determining whether a man is the father of a child. While genetic testing cannot prove paternity, it can exclude with certainty a man wrongly named as the father. Further, test results can demonstrate the probability that a child is the offspring of a man with the exact genetic characteristics of the man tested, up to a probability of 99.
9 percent. As a result of these advances, every State will now legally establish paternity when a man is not excluded by testing. When a child is born to an unmarried woman, paternity may be established through various methods. Many unmarried parents sign voluntary acknowledgments of paternity immediately following birth in hospitals, or sometime subsequent to the child’s eighteenth birthday.
Genetic testing is typically not required in conjunction with voluntary acknowledgments. A second method of establishing paternity involves the parties voluntarily consenting to genetic testing and agreeing to abide by the results. These are common in administrative paternity establishments. A third method involves contested cases in which the parties are either administratively or judicially ordered to submit to genetic testing.
Several topics regarding the use of genetic testing in paternity establishment warrant consideration, including the legal authority to order genetic testing, the mechanics of testing, and its effect on children, mothers, putative fathers and child support staff. Barriers may exist that make testing more difficult for parties, which is important, considering the possible consequences of failure to test when ordered.
Potential barriers may include inaccessibility of test sites, fear of needles and drawing blood, the cost of testing, and any incentives the parties might have to avoid testing or delay paternity establishment. SCOPE AND METHODOLOGY To examine the role of genetic testing in the paternity establishment process, we gathered information from three groups of child support specialists: State child support agency directors, local office managers, and local office front-line staff.
We reviewed the laws and regulations governing the use of genetic testing. We also analyzed the processes, forms and documentation employed by State and local child support enforcement offices regarding genetic testing. Administrators from every State and the District of Columbia child support agency completed a written survey on paternity establishment methods and policies. Ninety-nine local office managers in six focus States - California, Georgia, Illinois, New Jersey, Texas and Virginia - completed a survey about their office’s paternity establishment policies and practices.
Finally, we made site visits to four local offices in each of the six focus States. During these visits, we conducted 47 interviews which included over 99 local office child support staff who work directly with clients. We purposively selected the six focus States to include a variety of implementation strategies and experiences regarding paternity establishment. To achieve this variety, we considered many criteria including, non-marital birth rates by State and locality, State Paternity Establishment Percentages (PEP), performance of voluntary acknowledgment programs, outstanding program characteristics (innovation, privatization, etc.
), status as State-administered or county- administered, and geographic region. We also purposively selected local child support offices within these States to provide a mix of urban, suburban, mid-size and rural locations.4 Since the number of local offices varies significantly by State, we surveyed all local offices in some States and a portion in others.5 For on-site interviews, we visited offices in one or two cities and their surrounding areas in each focus State.
The selection of focus States does not purport to be representative of the nation, nor do local offices represent all offices within individual focus States. The selections do, however, allow for examination of paternity establishment processes under conditions found throughout the country. The pretested survey instruments and interview protocols included sections specifically about policies and office procedures related to genetic testing as well as barriers to the use of testing.
Additionally, we gathered supplementary documentation including copies of State paternity policy manuals, staff training materials on paternity practices, public outreach materials related to paternity establishment, and samples of documents and correspondence regarding paternity establishment. This study of the use of genetic testing was conducted as part of a larger project on State paternity establishment methods.
Companion reports discuss State use of voluntary paternity acknowledgments, the role of vital records agencies in paternity establishment efforts, and an overall description of State paternity establishment methods. This study was conducted in accordance with the Quality Standards for Inspections issued by the President’s Council on Integrity and Efficiency. FINDINGS STATE USE OF GENETIC TESTING Almost All States Use Genetic Testing in a Large Number of Paternity Cases and Typically Test the Mother, As Well as the Child and Putative Father.
State and local child support agencies rely heavily on genetic testing to determine paternity. Thirty-one States report using testing in “about half” or “some” paternity cases, with another 16 States reporting usage in more than half of all paternity cases. Two States claim to use genetic testing in only few cases. Local child support offices in focus States report similar usage patterns, with 81 percent using genetic testing in “about half” or “some” paternity cases, and another 17 percent using it in more than half of all paternity cases.
Only one out of 96 local managers reported testing in just a few cases. Policy in all but one State is to test all three parties in a paternity case: child, mother and putative father. While paternity may be established without testing the mother, States choose to test her for two reasons. First, genetic test results using all three parties provide a higher probability of paternity than motherless tests.
6 Additionally, testing the mother eliminates a potential welfare fraud scheme. Local staff report that women occasionally apply for public assistance, fraudulently claiming a child is hers in order to increase her level of benefits. In this case, genetic testing would exclude her as the mother. However, States may be forced to test without the mother if she cannot be located, or is incarcerated or deceased.
Child Support Staff Encourage Genetic Testing in Cases in Which Uncertainty Exists. Forty State child support agencies believe genetic testing should be used when any uncertainty about paternity exists on the part of any of the parties, and another six go further to say it should be used in all cases. Only four State officials suggest that substantial uncertainty should exist before genetic testing is provided.
A local child support worker explains that, in practice, workers encourage genetic testing whenever doubt exists: “If there is any doubt, I encourage them to do a blood test. Some guys are embarrassed to ask for the test, but I tell them to go ahead unless they are sure. Genetic testing does not add much paperwork or staff time to the process. So it is better to do it up front.” Most, But Not All, State Child Support Agencies Have Administrative Authority To Order Genetic Testing, Thereby Potentially Expediting the Paternity Establishment Process.
Forty-three State child support agencies have authority to order parties in paternity cases to submit to genetic testing, with a few States granting this authority only within the last two years. Two other States have a quasi-judicial procedure in which child support agencies may order testing when approved by judicial authorities. In the six remaining States, only the courts may order genetic testing.
Federal law requiring States to empower their child support agencies with administrative authority to order testing is part of a general effort to expedite paternity establishment procedures. Until recently, paternity establishment was a highly judicial process - with family or juvenile courts handling such cases in most States. However, because many State judicial systems were overloaded, paternity cases could often take many months, even after location of the putative father.
A local child support worker explains how court involvement can create significant delays in the paternity establishment process: “He has the right to go to court, and can request a DNA test. He can’t get a DNA test until he files an answer with the court, and requests the test. He will then go back to court, perhaps several months later, and request the results. It usually takes about 6-8 weeks to get the DNA results.
So there could be three or four months from the first court date. Getting court dates takes more time than getting a DNA test result.” States are using strategies to expedite judicial paternity procedures, such as having phlebotomists present on days when paternity cases are heard. If one of the parties requests testing, the judge can order all three parties into an adjacent room to provide DNA samples.
Judges may also set a date for final settlement of the case a few days after the test results are expected. Another strategy to expedite paternity establishment is to make it predominately an administrative procedure, requiring little court involvement.7 Empowering State child support agencies with the authority to order testing is a necessary first step of this approach. In those States that consciously attempt to make paternity establishment an administrative process handled chiefly by the child support agency, respondents view genetic testing as quite simple.
Once named as a putative father, a man may either voluntarily acknowledge paternity, voluntarily submit to genetic testing, or the agency may issue an administrative order for testing. Genetic material samples may be submitted at the local child support office, or at a nearby location, perhaps on a putative father’s first visit to the office. The results of testing either exclude the man or create a legally binding presumption of paternity.
Paternity is then established administratively and staff proceed to obligate the father for support. (See Appendix A for example language of State documents regarding ordering genetic testing.) Genetic Testing May Be Used in Cases Where Paternity Has Already Been Established. Local child support staff we interviewed report that genetic testing is occasionally used in cases in which paternity has already been established by other methods.
Federal law allows that paternity may be established through voluntary acknowledgment of the mother and putative father. While the parties may chose to pursue genetic testing prior to voluntary acknowledgment, they are likely to sign an acknowledgment in the hospital immediately after the child’s birth. Congress clearly requires that when such a voluntary acknowledgment of paternity is signed, States conclusively establish paternity, following a 60-day rescission period.
8 Beyond the rescission period, a voluntary paternity acknowledgment may only be challenged based on “fraud, duress or material mistake of fact.”9 Some child support staff interpret Federal law to mean that child support agencies and courts should neither order nor pay for genetic testing once paternity has been conclusively established. They argue that even if the man who acknowledged paternity is not the biological father, he voluntarily chose to take responsibility, may already have a relationship with the child, and neither he nor the mother should be allowed to revoke his parentage.
They warn that if paternities established through voluntary acknowledgment are commonly overturned through subsequent genetic testing, the in-hospital voluntary paternity acknowledgment program may be jeopardized. Other child support staff argue that if a man incorrectly acknowledges paternity the State has an obligation to make testing available, even months or years after the acknowledgment.
If genetic testing excludes the man, the State could reverse the paternity establishment and discontinue collection of child support. They maintain that collection is difficult if the man believes he is not the father, and that the best interest of the child is served by a definitive ruling based on genetic testing. Similar concerns arise regarding the use of genetic testing in cases in which paternity has been established by default.
Federal law allows for paternity to be established through a default order issued by the child support agency or the courts if a putative father does not heed a summons to appear for genetic testing or other appointment. Although States are required to provide proper service, a putative father who fails to respond could have paternity established by default with no evidence other than the word of the mother.
Some staff express concern over who pays for genetic testing and who has the authority to order testing in cases in which paternity has previously been established. If child support agencies routinely pay for these tests, total testing expenses would rise. On the other hand, if the agency refuses to pay, but allows genetic testing in these cases, some fear that only men with the financial ability to pay for testing in advance could avail themselves of the service.
Similarly, if only courts may grant testing in such cases, those with greater resources could petition the courts to allow genetic testing and potentially revoke paternity. Some have suggested that the circumstances of individual cases may be more critical than standardized policies. This view draws a distinction between cases in which child support staff and courts ‘routinely’ ignore voluntary paternity acknowledgments by ordering testing upon request, and cases in which only special circumstance can warrant paternity testing.
For example, suppose an in-hospital paternity acknowledgment is signed at the time of birth, but the mother does not apply for public assistance or child support until the child is two years old. If child support staff will routinely grant a father’s request for genetic testing, the credibility of the original acknowledgment may be undermined. If, however, the Federal language of “fraud, duress or material mistake of fact” is demonstrated, unique cases may be handled without discarding the voluntary acknowledgment structure.
BARRIERS TO THE USE OF GENETIC TESTING Many Mothers and Putative Fathers Have Incentives Not to Test. State Child Support agencies and local staff agree that the greatest barrier to the effective use of genetic testing is a desire on the part of mothers and putative fathers not to establish paternity. State administrators report that putative fathers (43 States) and mothers (41 States) “do not want paternity established,” and therefore avoid testing.
Local child support office managers in our six focus States express similar concerns, identifying the desire of mothers (80 percent of offices) and putative fathers (72 percent) not to establish paternity as a barrier to the use of genetic testing. Local child support staff explain that the perspective of mothers and putative fathers often depends on their current relationships. A mother may have a relationship with another man and fear that paternity and child support activities may disturb that relationship.
Additionally, she may no longer have a relationship with the putative father and not want him involved with her children. Conversely, a mother may indeed have a relationship with the putative father, perhaps with him providing informal financial support to the family. If the mother receives public assistance, much of the father’s formal financial support would likely go to the State as reimbursement for assistance rather than as support for the child.
A putative father may have similar concerns. He may not want to be involved with the family, or may already provide informal support and wish to avoid participation in the formal child support system to maximize the amount of support reaching his children. Depending on circumstances, putative fathers, like mothers, may have significant incentives not to submit to genetic testing or to establish paternity.
The effect of these incentives is to increase the chance that one or more parties will not show up for genetic testing when scheduled. When fathers fail to appear for genetic testing, States either establish paternity by default immediately (10 States), provide a second opportunity or certain amount of time for testing before establishing paternity by default (25 States), or refer the case to court (11 States).
Once a case is referred to the courts, judges may establish paternity by default or re-order genetic testing. Judicial options may also include fining putative fathers, citing them for contempt, or otherwise attempting to gain their compliance. Mothers receiving public assistance risk being designated as non-cooperative and may face sanctions for failure to appear for genetic testing. Sixteen States immediately make this designation when a client fails to appear, while 32 States allow the mother a second opportunity or certain amount of time to comply.
Most States appear to allow caseworkers some discretion, depending on the circumstances that caused the missed appointment. One State indicates that their policy requires child support staff to communicate with a non-compliant mother before making a determination of non-cooperation.10 If the mother is not receiving public assistance, States cannot compel her to cooperate and generally begin case closure procedures once she fails to keep appointments.
(See Appendix A for example language of State documents regarding ramifications of non-compliance.) While the Cost of Genetic Testing Does Not Inhibit Its Use by Child Support Agencies and Staff, It May Be Seen as a Significant Barrier by Some Putative Fathers. The cost of genetically testing all three parties to determine paternity ranges from $230 - $500 across States. The Federal government reimburses States for 90 percent of their paternity testing expenses, although the Administration’s FY 2000 budget proposes reducing the rate of reimbursement to 67 percent.
While almost all States appear to attempt recoupment of testing costs from men determined to be fathers, 15 States allow local staff and courts discretion in seeking recoupment on a case-by-case basis. Only one State indicates they do not try to collect reimbursement in any cases.11 Local staff view cost and recoupment issues from a very practical perspective. As one worker explains, cost concerns are often viewed as secondary to establishing paternity: “Cost is not an issue.
We would never discourage someone from taking the test because of cost. Just the opposite. When there are any reservations, we would tell him it is in his best interest to have the test. We don’t ask for reimbursement, even if the test is positive.” While some local offices may not try to recoup costs, many fathers are charged for testing, and the cost may constitute a significant barrier for them.
Eighteen State agencies report the fees charged for genetic tests are a barrier to putative fathers’ use of testing. To understand how cost could discourage use of testing, imagine a situation in which a low-income or unemployed man is alleged to be the father of a child. Suppose he questions that the child is his, yet knows paternity is a strong possibility. The effect of recoupment policies is that the man in this scenario must risk up to $300 to find out whether the child is his.
His other options are to wait for a default order of paternity to be issued or voluntarily acknowledge paternity. In each case, he technically gives up his right to genetic testing. For many men, the $290 gamble may prevent them from testing and learning definitively whether they are the father. Since staff freely encourage testing, they may be waiving the recoupment policy in similar situations.
However, unless caseworkers have clear authority to waive recoupment, some fathers may not test because of the cost. Two factors determine the cost of genetic testing for individual paternity cases: whether the same parties have to be re-tested for any reason; and whether multiple men have to be tested before paternity is established. Re-testing the same parties is occasionally required and occurs when samples are contaminated or otherwise insufficient for conclusive results.
Child support agencies typically cover the cost of this rare type of re-testing, with no recoupment. Parties in paternity cases may also wish to re-test because they are dissatisfied with, or doubt, the results of an earlier test. Typically, if a second test is granted, the party requesting the test must pay the costs in advance. Testing of multiple partners may be required to determine paternity.
Local staff report that while most women know who the father is with certainty, some women name two, three, or four men as possibly the father. Rarely, even more men are named. In most States, paternity workers use practiced interview skills to help a mother determine the most likely candidate from among the possibilities. Child support offices typically perform genetic testing in the order of likelihood, and only test others if the first man is excluded.
However, in a focus State that primarily uses a judicial process for establishing paternity, workers report testing as many as three men at the same time before making a pleading in court. Because it took so long in this locality to arrange court dates, it was more prudent for child support attorneys to get permission to test all alleged fathers at once than it was to go before the judge after each possible exclusion.
These workers suggested that their decisions often involved a trade-off between time and money. The Time, Location and Method of Sample Collection Present Significant Barriers to Testing. State and local staff report that getting parties to testing sites is problematic. Lack of transportation to the testing facility was identified as a barrier to mothers (41 States) and putative fathers (25 States).
Inconvenient testing locations was also identified as a barrier for mothers (23 States) and putative fathers (16 States). Local office managers in focus States agreed, identifying transportation as a barrier for mothers (71%) and putative fathers (35%), and inconvenient locations as a barrier for mothers (26%) and putative fathers (12%). About forty percent of State agencies also identified client fear of needles as a barrier to the use of genetic testing for both mothers and putative fathers.
Some State administrators indicate a reluctance to using needles for collecting samples from infants under a certain age. Additionally, many prisons do not allow phlebotomists to bring in needles for collecting samples from prisoners. While Genetic Testing Mostly Expedites the Paternity Establishment Process, Staff are Concerned About Scheduling Delays and Parties Intentionally Using Testing to Delay Paternity Establishment.
Thirty-nine State child support agencies report that genetic testing sometimes prolongs the paternity establishment process, yet only seven view these delays as a problem. Similarly, only eight percent of local child support office managers in focus States view delays attributed to genetic testing as a problem. Test results are typically returned to local offices two to four weeks after genetic samples are submitted, but occasionally take longer.
Time may be wasted prior to the test because caseworkers report difficulty in scheduling appointments for parties to submit samples of genetic material. Finally, mothers and putative fathers often use the genetic testing process to undermine or stall paternity establishment efforts. Local workers in several offices reported frustration caused by these delays: “He comes in and wants to be drawn.
I have to wait two months for a draw date, and then it’s going to take six to eight weeks for the results to come back. Well, that’s not going to meet our 90 day [goal] right there. I don’t see how it could be improved, unless we did it weekly. So that’s a barrier, not having testing as often as you’d like.” “A lot of [putative fathers] have learned if they ask for a blood test, it’s going to prolong it.
So a lot of them ask for it even though they know they are the father. They’ve just learned to work the system.” As previously noted, the major reason genetic testing delays paternity establishment is because parents delay testing. Mothers and putative fathers frequently fail to appear for scheduled testing appointments. This situation requires re-scheduling or may cause a case to be switched from administrative to judicial procedures.
If only the courts may order testing, or must approve orders for testing, further delays may ensue. States attempt to overcome these delays by testing parties, especially putative fathers, the first time they appear at a local child support office or at court. Many offices arrange appointments with putative fathers and mothers on specific days in which phlebotomists are scheduled to be in the office or at court.
Cases are also delayed when mothers intentionally name the wrong man as the father. It may take weeks or months to exclude the first putative father, before workers can get another name and begin the genetic testing process again. To discourage these intentional delays, one focus State instituted a policy of designating a mother on public assistance as non-cooperative, and imposing sanctions, if the first two men she named as father were excluded by genetic testing.
This policy has been challenged in court because it is difficult for caseworkers to determine if mothers are attempting to defraud the system, or truly do not know which of several men is the father of her child. STRATEGIES FOR SURMOUNTING BARRIERS Some State agencies and local child support offices are using promising strategies to overcome barriers to the use of genetic testing including, as previously discussed, not charging fathers for paternity testing.
Other promising strategies include: collecting genetic samples without using needles, and; immediate collection of genetic samples at local child support offices. While Buccal Swab Sampling Overcomes Barriers Associated With Drawing Blood, Its Use is Limited and Some Authorities Still Prefer Blood Samples. Only three States do not yet use buccal swab sampling, a method that uses cells swabbed from the cheek instead of drawn blood, to obtain genetic material needed in paternity testing.
Despite the widespread acceptance of swab sampling in States, clients may not have access to the method in some areas. Offices in three of our six focus States have near universal access to swab sampling, yet access in the other three States is limited with 38 percent of local offices reporting no swab sampling. There appears to be confusion among some State and local offices regarding the acceptance of swab sampling.
State agency respondents in one focus State indicate buccal swab sampling is not allowed for paternity testing in their State, yet 13 local child support office managers (68%) report some use of the method in their areas. Child support staff suggest three explanations for local variation in access to swab sampling. In one respect, inconsistent implementation may simply reflect which services are provided by genetic testing vendors.
Many States contract with private companies to collect samples and test for paternity. If a vendor handling a region of the State only uses drawn blood, parties may not have other options. A second explanation involves possible resistance to the buccal swab method by local judicial authorities. Many local child support offices still rely heavily on the court system and appear to conform testing procedures to the preferences of local judges.
Buccal swab sampling is preferred over drawing blood by 29 State child support agencies and 41 percent of local office managers in the six focus States.12 Swab sampling is preferred primarily because it is less invasive for all parties, especially children. Swabbing also avoids client fear of needles, which was identified by about 40 percent of State agencies as a barrier to the use of genetic testing for both mothers and putative fathers.
The method is also viewed as easier, faster and safer to administer than blood sampling. With no fear of the safety risks associated with handling blood, a few local managers note that their staff has been trained to perform the simple swabbing procedure. State administrators also indicate that swab sampling is the most acceptable method for collecting samples from infants under a certain age.
Finally, many prisons do not allow needles, leaving swabbing as the only method for obtaining samples from prisoners. A local child support worker describes the typical view of sample collection using swabs, reporting: “We do buccal swab here, so I tell the client there are no needles, and no blood, and that makes it easier because sometime they have young kids and don’t want to get them stuck.
” Eleven State agencies and 23 percent of local child support managers in focus States prefer drawn blood sampling. The primary reason given for preferring blood to swabs is a misconception that it provides scientifically more reliable results. Phlebotomists explain, however, that the DNA is the same in every cell of the body and the accuracy of testing performed on cheek cells collected with a swab is the same as using blood.
13 Another reason for preferring blood samples is that, if performed improperly, swabbing may not collect enough cells for paternity testing and may require re-sampling. Some child support staff indicate that blood samples have stronger standing in court proceedings. One worker suggests that blood sampling is less vulnerable to fraud and another believes it “motivates some putative fathers to sign the [voluntary acknowledgment],” because they do not want to face the needle.
Collection of Genetic Samples in Local Child Support Offices Surmounts Barriers That Delay Paternity Establishment, But This Service is Not Offered in Most Areas. Some States are attempting immediate collection of genetic samples, on-site, at local child support offices or in court. Parties may submit samples of genetic material at local child support offices in 29 States. However, implementation is rarely Statewide and often only a fraction of local offices offer this service.
Fourteen of these States do report that all or nearly all of their local child support offices are equipped to draw blood or perform swab sampling. However, 12 States report that only a few offices have sampling equipment and 20 States report that none of their local offices are equipped for sample collection. With any other questions please feel free to call anytime.
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Who Knew I Was Not the Father?By RUTH PADAWERNovember 17, 2009I.It was in July 2007 when Mike L. asked the Pennsylvania courts to declare that he was no longer the father of his daughter. For four years, Mike had known that the girl he had rocked to sleep and danced with across the living-room floor was not, as they say, “his.” The revelation from a DNA test was devastating and prompted him to leave his wife — but he had not renounced their child.
He continued to feel that in all the ways that mattered, she was still his daughter, and he faithfully paid her child support. It was only when he learned that his ex-wife was about to marry the man who she said actually was the girl’s biological father that Mike flipped. Supporting another man’s child suddenly became unbearable.Two years after filing the suit that sought to end his paternal rights, Mike is still irate about the fix he’s in.
“I pay child support to a biologically intact family,” Mike told me, his voice cracking with incredulity. “A father and mother, married, who live with their own child. And I pay support for that child. How ridiculous is that?”Yet despite his indignation — and despite his court filings seeking to end his obligations as a father — Mike loves his daughter. Every other weekend, the 11-year-old girl, L.
, lives in Mike’s house in a quiet suburban neighborhood in Western Pennsylvania. Her bedroom there is decorated to reflect her current passion: there’s a soccer bedspread, soccer curtains and a soccer-ball night light. On her bed is an Everybody Loves Me pillow covered with transparent sleeves filled with photos of her and Mike, the man she calls “Daddy,” canoeing, fishing and sledding together.
As the two of them prepared breakfast together one Saturday in June, just after L. finished fifth grade, Mike sang a little ditty about how she was his favorite daughter. A few minutes later, when he noticed L. sneaking a piece of raw biscuit dough, he poked her. She looked at him impishly until they both giggled. “Just because our relationship started because of someone else’s lie,” he said later, “doesn’t mean the bond that developed isn’t real.
” Still, his love became entangled with humiliation and outrage, and each child-support payment stung so much that he felt compelled to take a stand on principle. In doing so, he also took the small but terrifying risk of losing his child.Mike’s conundrum is increasingly playing out in courts across the country, a result of political, social and technological shifts. Stricter federal rules have pressed states to chase down fathers and hold them responsible for children born outside of marriage, a category that includes 40 percent of all births.
At the same time, DNA tests have become easier, cheaper and more reliable. Swiping a few cheek cells and paying a couple hundred dollars can answer the question that has plagued men since the dawn of time: Am I really the father?One hundred and twenty-two years ago, the playwright August Strindberg meditated on this quandary. “The Father” is the story of a cavalry captain whose wife hints that he might not be the father of the daughter he adores.
Consumed with doubt, he rages at his wife: “I have worked and slaved for you, your child, your mother, your servants . . . because I thought myself the father of your child. This is the commonest kind of theft, the most brutal slavery. I have had 17 years of penal servitude and have been innocent.” Without a biological tie, the captain cries, his paternal love is without foundation. But even as he laments that his daughter may not be his, the captain seeks consolation from his childhood nursemaid.
With his mind unraveling, he rests his head in her lap and speaks of the comfort of “mother” — because that was the nursemaid’s role, biology notwithstanding.Strindberg never reveals whether the captain’s fears were justified, and perhaps the answer doesn’t matter. As long as the captain believed he had a biological link to his child, their relationship was meaningful. It is that link, or perhaps the fear of its absence, that drives men today to DNA tests.
Over the last decade, the number of paternity tests taken every year jumped 64 percent, to more than 400,000. That figure counts only a subset of tests — those that are admissible in court and thus require an unbiased tester and a documented chain of possession from test site to lab. Other tests are conducted by men who, like Mike, buy kits from the Internet or at the corner Rite Aid, swab the inside of their cheeks and that of their putative child’s and mail the samples to a lab.
Of course, the men who take the tests already question their paternity, and for about 30 percent of them, their hunch is right. Yet as troubled as many of them might be by that news, they are even more stunned to discover that many judges find it irrelevant. State statutes and case law vary widely, but most judges conclude that these men must continue to raise their children — or at least pay support — no matter what their DNA says.
The scientific advance that was supposed to offer clarity instead reveals just how murky society’s notions of fatherhood actually are.When Mike learned that Rob — the man who had impregnated Mike’s wife — would now be the one to make his little girl breakfast and tuck her in at night, Mike wondered just what the word “father” really meant. Was he the father and Rob the stepfather or the other way around? Most galling to Mike was that he was expected to subsidize this man’s cozy domestic arrangement.
Mike’s wages would be garnished because he was the legal father — even though, in this case, the biological father had more of the benefits of fatherhood and none of its obligations. (Neither L.’s mother, Stephanie, nor Rob agreed to be interviewed for this article. To protect the girl’s privacy, the magazine is withholding the families’ surnames and L.’s full first name.)Even in paternity cases simpler than that of Mike and L.
, nonbiological fathers often feel like serial dupes: their wives or girlfriends cheated on them, the children they thought were theirs aren’t and yet they are required to support children they did not create. Because nothing can be done about the cheating or the biological revelation, the men focus their indignation on the money. The urge to withhold every dime, lest it end up easing the mother’s life, is hard to resist.
Often the fight isn’t really about child support; it’s simply a way to channel rage about the woman’s duplicity. Some observers suggest that insisting these men pay child support will damage rather than fortify the relationship between father and child that society seeks to preserve. As Alaska’s Supreme Court concluded in a decade-old paternity case, making a nonbiological father pay “might itself destroy an otherwise healthy paternal bond by driving a destructive wedge of bitterness and resentment between the father and his child.
”Mike did not tell L. that he was asking a court to release him as her legal father. But when she was 9, he did sit her down in his lap and tell her that, according to her mother, Rob was her biological father. He said there was a chance, though small, that the courts or her mom would forbid him to see her. But if they did, Mike told L., he would fight back.“For nine years, I thought my dad was my dad,” L.
told me when I met her in June, as she tried to articulate the confusion she felt two years ago and has felt ever since. Her favorite movie is “The Parent Trap,” a story of two girls who meet at summer camp and discover they are identical twins, then successfully plot to bring their parents back together. L.’s life hasn’t worked out as neatly. She remembers the way her stomach hurt and her head felt dizzy when her dad said he wasn’t her real dad, and she remembers crying.
“At first, it made me scared, because if my dad wasn’t related to me, then I was living with someone who wasn’t a part of my family, like a stranger,” she said. “I want him always to be my real dad. Because if he’s not my dad, then who is he?”II.THERE IS A STRONG cultural imperative that a man should never abandon his offspring: that a man who impregnates a woman should be responsible for their child, and that a man who acted as a child’s father should continue to nurture her.
But what is the cultural standard when those roles are filled by two different men? Judges, legislators and policy makers have floundered trying to reconcile the issues — a tangle of sex, money, science, betrayal, abandonment and the competing interests of the child, the biological parents, the nonbiological father and the state itself. No matter how they decide, the collateral damage is high because fairness for one party inadvertently violates fairness for another.
The challenge is to settle on principles that help answer the riddle of who is the father in each distinct and gut-wrenching situation. In most states, paternity decisions are governed by centuries-old English common law, the presumptions of which hold sway, whether or not they’re codified: a child born in a marriage is presumed the product of that union unless the husband was impotent, sterile or beyond “the four seas” when his wife conceived.
The aim was to avoid “bastardy” and to preserve family stability — or at least the appearance of it. Judges around the country have interpreted the common law in so many different ways that what happens in contested-paternity cases depends almost as much on the state as on the details of the case. Some state-court judges have let nonbiological fathers off the hook financially, but they are in the minority.
In most states, judges put the interest of the child above that of the genetic stranger who unwittingly became her father — and that means requiring him to pay child support. Some judges have even rebuked nonbiological fathers for trying to weasel out of their financial obligations. “The laws should discourage adults from treating children they have parented as expendable when their adult relationships fall apart,” Florida’s top court held in a 2007 paternity decision, quoting a law professor.
“It is the adults who can and should absorb the pain of betrayal rather than inflict additional betrayal on the involved children.”In an age of DNA, when biological relationships can be identified with certainty, it can seem absurd to hew so closely to a centuries-old idea of paternity. And yet basing paternity decisions solely on genetics places the nonbiological father’s welfare above the child’s.
Phil Reilly, a lawyer who is also a clinical geneticist, has been wrestling with the policy implications of DNA testing for years, and even he is stumped about how society should manage the problem that men like Mike face. “We’re at a point in our society where the DNA molecule is ascendant, and it’s very much in the public’s consciousness that this is a powerful way to identify relationships,” Reilly says.
“Yet at the same time, more people than ever are adopting children, showing that parents can very much love a child who is not their own. The difference here for many men is the combination of hurt and rage over the deceit, the fact that they’re twice beaten. I can see both sides of this argument. As a nation, we’re still in search of what the most ethical policy should be. Every solution is imperfect.
”Once a man has been deemed a father, either because of marriage or because he has acknowledged paternity (by agreeing to be on the birth certificate, say, or paying child support), most state courts say he cannot then abandon that child — no matter what a DNA test subsequently reveals. In Pennsylvania and many other states, the only way a nonbiological father can rebut his legal status as father is if he can prove he was tricked into the role — a showing of fraud — and can demonstrate that upon learning the truth, he immediately stopped acting as the child’s father.
In 2003, a Pennsylvania appellate court bluntly applauded William Doran — who had been by all accounts a loving father to his 11-year-old son — for cutting off ties with the boy once DNA showed they were not related. The judges found that Doran had been tricked by his former wife into believing he was the father of their son, and he was allowed to abandon all paternal obligations. Courts, of course, deal with paternity cases only when there is a legal dispute.
Many men don’t sue because it is expensive or because they suspect they will lose anyway. And then there are those who never even discover the biological truth. How many fall in that category is impossible to quantify. The most extensive and authoritative report, published in Current Anthropology in 2006, analyzed scores of genetic studies. The report concluded that 2 percent of men with “high paternity confidence” — married men who had every reason to believe they were their children’s father — were, in fact, not biological parents.
Several studies indicate that the rate appears to be far higher among unmarried fathers.Some other number of men discover they are not biological fathers, but choose to soldier on rather than go to court, unwilling to upset their children or the relationships they have established. Tanner Pruitt, who owns a small manufacturing business in Texas, paid child support for seven years after divorcing his wife.
His daughter never looked like him, but it wasn’t until she was 12 that it began to bother him. He told the girl he wanted to check something in her mouth, quickly swabbed some cheek cells and sent the samples off to a lab. After the DNA test showed they weren’t related, he contacted a lawyer, figuring the lab results would release him from child-support payments and justify reimbursement from the biological father.
But the lawyer told Pruitt his only option was to take the matter to court and that doing so might mean giving up his right to see the girl at all. It might also alert her to the truth. Pruitt didn’t want to chance either possibility, so he stayed silent and kept paying. “I spent thousands and thousands of dollars, and it hasn’t cost that biological father a penny, and yeah, I’m angry, but it would have been more harm to her psychologically than it was worth,” says Pruitt, who eventually fought for, and won, full custody.
The girl, now 15 years old, recently learned from a relative that Pruitt is not her biological father. Afterward, Pruitt sat with her on a park bench, held her hand and told her the saga. “When it was all over with, she gave me a big hug and told me I’d always be her daddy,” he told me. “Even though she’s not my blood daughter, I was there the day she was born, and I’ve been there ever since, so she’s my daughter, and as long as she’s alive, she’ll always call me Dad.
” Mike’s first inkling that something was amiss in his marriage was in 2000, when he was digging through a closet looking for the source of some mice. He didn’t find any nests, but he did come upon a plastic grocery bag of love letters to his wife, Stephanie, from her co-worker Rob. Confronted, Stephanie confessed to a fleeting affair but assured Mike that L., then nearly 3, was his. A year later, according to Mike’s undisputed court testimony, while changing the sheets, Mike found Rob’s photograph tucked under Stephanie’s side of the mattress.
Despite Stephanie’s assurances that L. was his child, Mike’s doubts haunted him. The marriage deteriorated, and as L. approached her 5th birthday, Mike asked Stephanie to take a DNA test with him and their child. They told the girl that all three of them had to take a test for the doctor. Mike remembers telling her that rolling the swab inside her cheek wouldn’t hurt one bit.“The day the results came back was the most devastating day of my life,” Mike said, beginning to cry as he described opening the envelope from the lab and reading there was no chance he was L.
’s father. “This little girl,” he whispered, his throat tight, “is not my child. I ran upstairs, locked myself in the bathroom and cried and dry-heaved for 45 minutes. I felt like my guts were being ripped out.”Mike and Stephanie separated immediately. Mike expected Rob to pay L.’s support and remembers asking Stephanie if Rob would “step up” to be L.’s father. He recalls Stephanie saying no, although Stephanie, in court documents, denies that such a conversation ever occurred.
Mike would later claim that he agreed to support L. only because her rightful father would not. After Mike moved out, the lawyers he consulted told him there was no use contesting paternity: if he denied he was the father, they said, he wouldn’t get to see L. at all, and the state would probably take his money anyway. So when a clerk at the child-support office handed Mike a form confirming he was the natural father, he signed.
Since then, Mike — a human-resources analyst for an equipment manufacturer — says he has paid $7,500 a year in child support, child care, camp and medical insurance. At first, whenever Mike saw Stephanie after the divorce, he felt a stabbing bitterness, but eventually, he grudgingly accepted the situation. In 2005, he began dating Lori, a woman he had met at his church and whom he would later marry.
Lori deeply resented the chunk of Mike’s salary that went to another man’s child, while she was reduced to clipping coupons. But she accepted L. They made scrapbooks together, baked scones and pizza and picked berries at a local farm. Neither Mike nor Lori had any idea Rob was in L.’s life until 2006, when Stephanie called and said she was marrying him. It was then that Mike became consumed with resentment.
“The courts insist on the best interest of the child,” Mike fumes, “but it was in the child’s best interest for Stephanie and Rob not to do this in the first place. So why is that burden all of a sudden put on me?”A year after Mike learned about Rob and Stephanie’s marriage, Lori read an article in the local newspaper about a paternity case involving Mark Hudson, a Pennsylvania doctor who discovered he wasn’t related to his 11-year-old son.
Like Mike, Hudson had questioned his wife about the child’s origins and was assured he was the father. In Hudson’s case, the state appellate court deemed this misrepresentation fraudulent and dismissed his $1,400-a-month child-support obligation. Lori showed Mike the article and urged him to file suit. For the first time, Mike felt he had a chance at being understood. There were, however, two crucial differences between the cases: Unlike Hudson, Mike had signed a paternity acknowledgment knowing it was a lie.
And unlike Mike, when Hudson petitioned to end his legal fatherhood, he wholly disengaged from the child, underscoring for the court that he had stopped acting as the boy’s parent. This dictate to abruptly sever the bond with a vulnerable child — to simply cease reading bedtime stories or cheering at soccer games or wiping away tears — sounds coldhearted. But courts in Pennsylvania and many other states are suspicious of men who claim they were defrauded into serving as father but who, after discovering the truth, nonetheless continue to behave exactly as a father would.
Looking through the narrow lens of legal reasoning, courts seem to conclude that these men are perpetuating the fraud and worsening the child’s confusion and pain by prolonging a doomed relationship. In reality, however, the requirement to cut ties often destroys the relationship by forcing men to choose between their desire for retribution and their desire to remain the child’s parent. Hudson chose the former path, though he told me he had hoped his ex-wife would allow him time with the boy.
“What do you do with that information?” Hudson says of the DNA results. “Do you just stick it in your back pocket and forget about it?” But if he wanted to maintain that relationship, he was disappointed. The boy’s mother said if Hudson wasn’t going to be the father for financial reasons, he couldn’t see the boy either. Court records show she also told the child his father no longer wanted him.
Hudson and his former wife have another child, a daughter. When he goes to pick her up and tries to talk to the boy, now nearly 17, Hudson says that the boy turns and walks away. Mike’s enduring attachment to L. became the central question of a hearing before a family-court magistrate in October 2007. Mike acknowledged that he continued to act as L.’s father, even after the DNA results, but argued he did so only because he was conned into believing L.
’s genetic father would not assume responsibility. Stephanie testified, however, that she never claimed such a thing. The real issue, her attorney, Todd Elliott, told the court, was that Mike didn’t really want to stop being L.’s father.“Every time he was given a chance to deny paternity, he never did,” Elliott said, according to the transcript. “He signed consent order after consent order because he wanted to be the father.
The testimony here today is that he only did it because of some philanthropic belief that he wanted to step up. That’s not true. . . . He fought for every other weekend. He fought for having her overnight on a Wednesday. He fought for having her not be able to leave the jurisdiction. These aren’t things that someone does because they are just philanthropic. He wants to be the dad; he just doesn’t want to pay support.
” Elliott’s accusation infuriated Mike, who believed it accurately described Rob, not him. The hearing officer was persuaded by Elliott’s argument: Mike hadn’t been defrauded into admitting paternity after the DNA tests, and he had hardly abandoned L. after he learned the truth. Still, the officer ruled, Rob had also acted “essentially as a parent.” During the hearing, Stephanie testified that Rob was the biological father, and that he and L.
loved each other. He had taken her on vacations to Disney World, Las Vegas and the ocean, celebrated at her birthday parties, bought her gifts and attended her soccer games and school activities. As such, the hearing officer ordered, Rob should help pay her support, too. Despite being named a defendant in Mike’s lawsuit, neither Rob nor any legal representative for him ever showed up in court or contested the rulings.
But Stephanie did. Her attorney argued in an appeal that parenthood shared by one mother and two fathers “would lead to a strange and unworkable situation.” So, the lawyer reasoned, Rob should not be forced to help pay for L.’s care. David Wecht, the state-court judge charged with hearing the appeal, agreed with Stephanie’s conclusions, albeit for different reasons. Pennsylvania law did not allow for the recognition of two fathers of the same child, he wrote in his opinion, and thus he could not order two men to pay paternal support.
Wecht concluded that under the law, Mike was L.’s legal father. Fraud is the only way to rebut the key paternity doctrine, and Wecht, like the hearing officer, concluded fraud did not induce Mike to continue as L.’s dad after the DNA results; love did.In reaching his decision, Wecht looked to a 2006 custody dispute that seemed weirdly similar to Mike’s. A married man named Kevin Moyer learned he was not the genetic father of his 9-year-old son.
Still, when the marriage ended, Moyer retained partial custody and paid child support. Like Mike’s ex-wife, Moyer’s ex-wife, Vicky, subsequently married the son’s biological father, a man named Gary Gresh, who had had little contact with the boy for his first nine years of life. The child lived primarily with Vicky and Gresh, but when he was a teenager, he asked to live full time with Moyer, whom he considered his father.
Moyer sought primary custody of the boy. The Greshes fought back, suing to name Gresh as the legal father instead. The appellate court, however, ruled in favor of Moyer. Gresh, the judges said, had given up his right to be a legal father by being entirely absent during the child’s first decade. Moyer, on the other hand, had provided emotional and financial support throughout the boy’s life. The ruling preoccupied Wecht as he considered the facts in Mike’s case.
If the court recognized Moyer’s paternal role despite the lack of genetic tie — and despite the available biological father — how could Wecht disregard the role Mike had played in L.’s life, just because her biological father was now in her life? Still, the state of the law frustrated the judge. In his opinion, Wecht wrestled with how to apply a law that requires deliberately ignoring genetic facts that are of the utmost importance to the people involved.
The law’s exasperating consequence, he wrote, is that the man who “may very well be the biological father is able to avoid any direct support obligation” and the nonbiological father is left with “unjust results.” Although Mike sensed that Wecht understood his predicament, he felt trapped by the ruling and he appealed, hoping another judge might find him a way out. When the appellate panel turned him down, Mike brought his plea to the state’s top court.
Then he waited. III.CARNELL SMITH, an engineer-turned-lobbyist in Georgia, is the leading advocate for men like Mike. In 2001, after Smith’s own paternity struggle, he formed U.S. Citizens Against Paternity Fraud, to help the men he calls “duped dads.” In his most notable success, Smith persuaded Georgia lawmakers to rescind nonbiological fathers’ financial obligations, no matter the child’s age or how close the relationship.
Smith then became the first man to disestablish paternity under that law. Smith’s movement was spurred by federal welfare reform in the mid-1990s that pressured states to track down the fathers of children born out of wedlock and make them accountable. Congress demanded that states find fathers for at least 90 percent of those kids, arguing that connecting a child to her father would improve the child’s emotional well-being.
Identifying a man to tap for child support in welfare cases would also reduce government spending. The law required paternity-acknowledgment forms to be distributed at every birth by an unwed mother. It did not require states to offer genetic testing before those forms were signed, but most of the forms do note that genetic testing is available. Advocates on both sides of the issue, however, say nearly all men sign the form without undergoing testing.
Sometimes they believe they are the father; sometimes they don’t understand what they’re signing; sometimes they hesitate to question a girlfriend’s fidelity right after she’s given birth; and sometimes they sign knowing full well the child isn’t theirs. If the putative father isn’t at the birth and the unwed mother is on welfare or seeking child support, she must identify the man she thinks is the father.
He is then served with legal papers. If he doesn’t respond, judges usually name him the father by default. The policy changes have been a huge success: the number of out-of-wedlock births with established paternity has more than tripled in the last 15 years, reaching 1.8 million in 2008. But as that figure swelled, so did the number of men who started having doubts. What if, they asked, the child wasn’t really theirs? New, easy-to-use technology provided them with the means to an answer.
As Identigene, a paternity-testing company, says in its marketing material, “Putting your mind at ease has never been more convenient, affordable or accurate.” With the scientific proof in hand, men like Carnell Smith began fighting back. A few months after Smith split up with his girlfriend in 1988, she announced she was pregnant with his child. Believing her, he signed a paternity acknowledgment for their daughter, Chandria.
He obtained joint custody, paid her support and spent virtually every weekend with his little girl. When Chandria was 11, her mother sued to increase support. Smith decided to be tested, and the results excluded him as the father. In a lawsuit, Smith demanded Chandria’s mother pay back the $40,000 he had laid out in what he calls “involuntary servitude” and fraud. The court ruled against Smith, concluding that he had known that his former girlfriend had other partners at the end of their relationship and should have realized he might not be the father.
By not exercising his “due diligence” and getting a DNA test early on, the court put the burden on Smith for not unearthing the truth sooner. The law that Smith helped to pass in Georgia, like a similar one in Ohio, sets no time limit on using DNA to challenge paternity. The premise is that a man shouldn’t be punished for entering a paternal relationship that he would have avoided had he known the truth.
It is, Smith says, a correction to a double standard that allows mothers and caseworkers to use DNA to prove paternity but prohibits men from using that same evidence to escape its obligations. But child-welfare experts counter that a child shouldn’t be punished by losing the only father she has ever known — or the financial security he offers — just because he’s upset that she doesn’t share his genes.
In 2002 the National Conference of Commissioners on Uniform State Laws — an influential body of lawyers and judges that proposes model laws — drafted a compromise. The proposal would allow the presumed father, the biological father or the mother to challenge the paternity until a child turns 2. The proposal had two goals: to balance the rights of children with those of their presumed fathers and to encourage parentage questions to be raised early in a child’s life, before deep bonds are formed.
Several states, including Delaware, North Dakota, Oklahoma, Texas, Utah, Washington and Wyoming, have adopted that model or a variation of it. But men’s rights groups complain that most putative fathers don’t discover the child isn’t theirs until after the two-year window closes — at which point, they have little or no recourse.The last time Smith saw his one-time daughter was nine years ago, when she was 11.
His outrage at Chandria’s mother and the system remains close to the surface. “We’re penalized for trusting our wives or girlfriends!” Smith seethed to me. He has long since lost track of Chandria. It is as if she ceased to exist once their biological connection evaporated.Chandria, however, has not forgotten Smith. Her memories of her 11 years with him are happy ones, which makes what happened afterward so hard for her to grasp.
As Chandria, who is now 20, remembers it, Smith just disappeared from her life. “I was just a kid, so I didn’t really understand what happened or why,” she said. “He never did explain why he didn’t want anything to do with me anymore.” Chandria says he wouldn’t answer when she called him at home, or he would promise to call back but never did. Smith says he doesn’t recall Chandria calling him.
She stopped seeing friends and holed up in the bathroom, scratching and picking at her skin until it bled. The more it hurt, she told me, the calmer she felt. Her hair started to fall out, her grades slipped and she had trouble sleeping, details her mother and her mother’s lawyer at the time corroborated. Chandria received counseling at her school and privately for years. “It kind of wrecked my self-esteem,” she says.
“Even now, I worry about being a burden on people. I don’t want to be in the way. I don’t want to be anybody’s problem. It’s made me apprehensive about getting attached to people, because one day they’re there and the next day maybe they won’t be. You can’t help but be careful.” Chandria now attends college in Georgia. She has seen Carnell Smith on the local news and on the Internet and cannot reconcile the man who seems to her so insensitive with the father she knew: attentive, seemingly proud of their relationship and eager to spend time with her.
“He was what a father was supposed to be,” she says, “but when things changed, he completely disconnected. That’s just not fair. You’ve been in my life my entire life and for you to just cut that off for money, well, that’s not fair to anybody.”Child-welfare advocates say that making biology the sole determinant of paternity in cases like Smith’s puts the nonbiological father’s interest above the child’s.
Besides, society has increasingly recognized that parenthood is not necessarily bound to genetics. Reproductive technology has made it possible for one person to supply an egg, another to fertilize it, a third to gestate it and a fourth and fifth to be deemed the parents. Stepparents, grandparents and same-sex co-parents are increasingly winning legally protected access to children whom they helped raise, even when no direct genetic link exists.
“Having been involved in cases like these, I think the answer to ‘Is it my kid?’ is irrationally important to the cuckolded husband,” says Carol McCarthy, an officer of the Pennsylvania chapter of the American Academy of Matrimonial Lawyers. “My own biases are going into this because I’m adopted, so I’m real into ‘your parents are the people who raise you.’ I couldn’t care less who my biological parents are.
My parents are the ones who went through all the crap I gave them growing up.” IV.WHY IS IT THAT we imbue genetic relationships with a potency that borders on magic? How many among us have trolled through genealogy records in search of unknown relatives or have welcomed strangers into our homes and hearts in instant intimacy simply because a genetic connection is suddenly revealed? Grandpa Harry’s older brother’s grandchild just found us on the Internet! A lovely man! Let’s have him over for dinner! The emotional connection between newly discovered kin is trenchant because we believe the genetic link to be significant, allowing us to embrace a stranger who — if that tie were lacking — we would never otherwise blindly accept.
But what happens when we believe a tie exists, as Mike did, and then discover it doesn’t? If betrayal and money are taken out of the equation, would everything look different? Denny Ogden has thought a lot about these questions. He was 54 when he got a phone call from a woman saying she was his daughter. As a college junior, Ogden had an intense summer romance; that September, the woman told him she was pregnant and planned to give up their baby for adoption.
The day the baby was born, Ogden called his old flame from a pay phone on campus and listened, distraught, as she described the beautiful baby girl she knew she needed to give away. He felt confused and guilt-ridden. In the 34 years that followed, Ogden only rarely thought about that little girl. He married, had three kids and settled into a comfortable life in Connecticut, telling his secret to no one, not even his wife.
The three times that his wife gave birth, he felt swoony and in love with their creations, and as he examined each baby’s tiny toes and fingers, he wondered fleetingly how that other girl, by then a teenager, had turned out.But then the phone rang, and a woman named D’Arcy Griggs said she was calling from Seattle to say she was his daughter. Her birth mother had died of cancer, but Griggs had met the mother’s family, who in turn had led her to Ogden, and no, she wasn’t after his money.
Shaken, Ogden called his lawyer. He also ran a background check on Griggs and her husband, a prominent surgeon, to make sure Griggs’s tale held together. It did. Ogden told the whole story to his shocked wife, and over the next several months, Ogden and Griggs exchanged hundreds of e-mail messages, phone calls and photos, quizzing each other on intimate medical histories and marveling at how similar their coloring was, their love of adventure (she’s a skydiver; he’s a private pilot) and their distaste for green peppers and Spanish class.
He took to calling Griggs “honey” and slid her photo under his desk blotter at work, alongside those of his other children.Two months after their first talk, Ogden flew to Seattle to meet her. He and Griggs spent four days, morning to night, catching up on 34 lost years, staring in the mirror side by side, comparing noses and ears and hair. “For the first time in my life, I felt like I totally fit, as if we shared the same personality,” Griggs says.
Ogden was so reluctant to leave that he even stayed an extra day. As they prepared to part, one or the other of them (their memories are fuzzy on this detail) pointed out that they couldn’t be sure they were related unless they had a DNA test, so they found a lab through the Yellow Pages and were tested. Both felt certain it would confirm what they already felt to be true.When the news came back that Ogden wasn’t the father, he was crushed.
“It broke my heart,” he said. “We talked to each other and cried, and I even called the testing lab to say, ‘Are you really sure?’ ” As confused as Ogden had been about how to become a father to a 34-year-old stranger, he was even more confused about how to stop being a father to a 34-year-old daughter he had quickly come to love.Griggs was devastated, too. Her biological mother was dead, and she had lost the man she thought was her father.
She sobbed for days. Even seven years later, she cried as she recalled it: “I had finally found a connection, a family I belonged to, and then I thought it was gone. But he didn’t go away. I think of him as my ‘almost dad.’ I call him before I call anyone else in my family whenever I’m upset. When I was going through my divorce, we talked three, four, five times a day for weeks. “If we had met on the ski slopes or at an airport, we might have hit it off as friends, but the fact that we believed we truly belonged to each other is why we loved each other right away like we did,” she told me.
Griggs is no longer interested in finding her true biological father. For her, Ogden is enough. On each Father’s Day, she sends him a card and scrawls across the top, “I wish.” Many of Ogden’s friends and family don’t understand why he and Griggs remained close after discovering they were biological strangers. “They don’t get the whole idea that believing you’re genetically connected makes something happen between people,” Ogden said.
“All the emotions and feelings were there because we were convinced we were linked. I had committed myself to this child, and when I found out she wasn’t my child, how could I just step away?” V.IN LATE JUNE, Pennsylvania’s highest court announced it would not consider Mike’s appeal. That left Wecht’s decision intact: Mike was the legal father and the sole man responsible for L.’s support.
“It all could have been avoided from the beginning if she’d just told the truth,” Mike said of his former wife after the decision was handed down, “if she hadn’t led us to believe we were father and daughter, if she had just told me after she got pregnant that it might not be my kid.”Three and a half years earlier, at a federally convened symposium on the increase in paternity questions, a roomful of child-welfare researchers, legal experts, academics and government administrators agreed that much pain could be avoided if paternity was accurately established in a baby’s first days.
Several suggested that DNA paternity tests should be routine at birth, or at least before every paternity acknowledgment is signed and every default order entered. In 2001 the Massachusetts Supreme Judicial Court urged the state to require that putative fathers submit to genetic testing before signing a paternity-acknowledgment form or child-support agreement, arguing that “to do otherwise places at risk the well-being of children.
”In other words, the same care that hospitals take ensuring that the right mother is connected to the right newborn — footprints, matching ID bands, guarded nurseries, surveillance cameras — should be taken to verify that the right man is deemed father. Mandatory DNA testing for everyone would be a radical, not to mention costly, shift in policy. Some advocates propose a somewhat more practical solution: that men who waive the DNA test at a child’s birth should be informed quite clearly that refusing the test will prohibit them from challenging paternity later.
Yes, the plan would reveal truths some men might not want to know. Yes, it would raise administrative costs, lower the number of paternity establishments and blow apart some families. But far fewer children would be entangled in traumatic disputes in which men they call Daddy suddenly reject them. In the meantime, maybe the solution is to accept that lives can be messy and relationships much more complicated than the law would like.
Several judges in Pennsylvania, including David Wecht, who heard Mike’s case, have used their paternity rulings as a platform to urge the Legislature or top state court to grant them the discretion to consider DNA. It is evidence, they say, that should be neither exalted nor ignored, but rather weighed as one of many factors, along with the history of the relationship and the child’s age, in determining who should raise a child and who should pay for his or her upkeep.
In other words, maybe a nonbiological father could be granted custody rights even if the biological father is charged with paying support. A small but growing number of courts in other states have gone this route, but such arrangements are still rare. “There shouldn’t be any reason why custody couldn’t be treated differently than paternity and support, each looked at on its own merits,” Wecht says.
“But many states, including Pennsylvania, haven’t begun to grapple with these issues yet. They are exceedingly complex, intellectually and legally, and perhaps most significantly, the issues are hotly disputed politically.”VI.L. SAYS SHE wishes her parents, Mike and Stephanie, had taken a DNA test when she was a baby instead of waiting until she had a firm — but inaccurate — sense of who her biological father was.
It’s not that she wishes Mike hadn’t turned out to be her dad; it’s that, having had Mike as her dad for so long, she can’t bear that he turned out not to be her father.As Mike’s case wended its way through the courts, Mike asked L. to take another DNA test, this one with witnesses. He knew the appellate court was unlikely even to consider DNA evidence, but if it did, he wanted to make sure the veracity of his test results would not be questioned.
L. wavered. Why help him prove he wasn’t her dad? “I didn’t really want to be reminded of that,” L. said. Eventually, she yielded, and the test confirmed she was not Mike’s biological daughter. She was disappointed. She had been secretly nursing a fantasy that provided her own “Parent Trap” ending. “I got a picture in my head,” L. said, “that the test people would call and say they had been wrong, that he really was my biological dad and that everything I had thought before never really happened.
” Ruth Padawer is an adjunct professor at Columbia University’s Graduate School of Journalism. Her last article for the magazine was about a dating site for “sugar daddies.” We're interested in your feedback on this page. Tell us what you think.
Title: Dna Testing In Georgia