Tuesday: Breakout Session 5 Time: 2:45 p.m. - 4:00 p.m. Workshop B Location: Regency 2

PATERNITY DISESTABLISHMENT: WHAT CONSTITUTES A “PARENT” IN THE EYES OF THE COURT, THE STATE, AND THE FAMILY? (CLE)

Join an interactive lively discussion about real world issues surrounding what defines the identity of the term “Parent” from both a legal and social perspective. Beginning with the more traditional model of the father who tries to dissolve his legal relationship with a child in the face of a negative DNA test, this workshop explores the differences between how the law treats marital and non-marital children, and the constitutional problems that arise. Special emphasis will also be given to how states and courts treat voluntary acknowledgements of parentage, when and under what circumstances genetic testing can be ordered and paid for by the IV-D agency in light of existing parentage determinations, and public policy developments in some less traditional cases involving same sex partners, assisted reproduction, and international cases that may employ religious presumptions of parentage. Summaries of where the states stand on these issues in terms of their most recent legislative and case law developments will provide the basis upon which attendees can debate the ethical and social policy implications of the process of separating the legal bonds between child and “parent.”

Presenters : Bill Reynolds Professor University of Maryland - School of Law Baltimore, MD

Susan Paikin Senior Associate The Center for the Support of Families (CSF) Newark, DE

Moderator: Christin Lahiff Semprebon Staff Attorney Vermont State Office of Child Support Springfield, VT

My Notes....

ERICSA 47th Annual Training Conference & Exposition Lexington, Kentucky ‘10 “When it Comes to Supporting Children We Don’t Horse Around!” 1 PATERNITY DISESTABLISHMENT (and other Emerging Issues in Paternity Establishment) 47th ANNUAL ERICSA TRAINING CONFERENCE May 2010 Lexington, Kentucky

Susan F. Paikin Center for the Support of Families [email protected]

Bill Reynolds, Professor University of Maryland School of Law [email protected]

Christin L. Semprebon, Staff Attorney Vermont Office of Child Support [email protected] When is a Dad, Who is not a Dad, a Dad? Policy Question

Once paternity is legally established, should a man be allowed or forced to abandon his social, emotional and financial responsibilities to his child?

4 How is Paternity Legally Established?

• Marriage • Voluntary Establishment • Ruling of the Court • Evidence Based • Default

5 What is the Government’s Interest?

• Constitutional Interest: Equal treatment of children

• Fiscal Interest: Government as payor of last resort

• Legal Interest: Rule of law

6 Welfare and Child Support

• Child Support Is Major Impetus to Streamlining the Paternity Establishment Process • Voluntary paternity establishment • Use of emerging technology • Mandatory default process • Hugely Successful Effort • Increase in Paternity Establishment overall 550,000(1993) to 1.8m(2008) • Increase in Paternity Establishment in IV-D 45%(1993) to 94.9%(2008) • Increase in Award Establishments 55%(1993) to 79.1%(2008)

7 Downside of Success

• Voluntary paternity establishment Good faith acknowledgement misfires • Use of emerging technology DNA testing--a two-edge sword • Mandatory default process The courts can be wrong

8 Paternity Disestablishment

9 Policy Dilemma 1

Some Dads, who are not Dads, end up being legal Dads that are required to support children who are not their biological children.

10 Policy Dilemma 2 Some children who had a Dad, end up having no Dad and lose the emotional, social and financial support from a Dad

11 Why Difficult Policy Call?

• No easy answers • Interests of different actors often conflict • No one “typical case” • Emotional language used in the debate – paternity “fraud” • Intense media attention

12 Policy Considerations

• child well being: emotional, social and financial

• fairness and justice to the fathers

• fairness and justice to the mother

• social and legal implications of paternity disestablishment

13 What are the Facts?

• Disputed Paternities About 25% to 30% not the Dad

• General Population About 2% to 10% not Dad but varies by population

14 Current Practices

• Nine states have PD statues (AL, AZ, GA, IL, IN, GA, MD, OH, VA)

• Free genetic testing offered at birth (uptake less than 1% in TX demo)

• Reopen default orders (small uptake (1400) cases in CA; MO “redo” now underway)

• Disparate approach to marital and non-marital children – when must the “best interest of the child” be considered 15 Current Practices

• No allowance for return of paid child support but relief from arrears and continued support • Informal corrections of mistakes of fact (especially when no father-child relationship) • FFP limited for genetic testing in disestablishment cases • Interstate contests

16 Competing Legal Presumption Issues

• Voluntary acknowledgement signed by one father while child born of marriage between mother and a different man

• Positive genetic testing completed on someone who is not the “legal” father, either by marriage or via signed acknowledgement

• May courts discount acknowledgements? Do genetics trump legal documents? Should IV-D agencies pay for genetic testing to resolve competing presumption conflicts?

• 42 U.S.C. sec. 666(a)(5); 45 C.F.R. 302.70

17 Future Possibilities

• Mandatory Genetic Testing • Constitutional Review • UPA (2002)

18 Further Reading:

www.ncsl.org www.clasp.org Bellis, et al @www.jech.bmjjournals.com www.aspe.hhs.gov

19 Establishing Paternity in Same Sex Partner Cases Why is it Important?

• More than 250,000 children are being raised by same-sex couples in the United States

• More and more, courts are struggling to apply traditional equitable parentage principles in same sex partner cases.

21 Unique Challenges in Same-sex Partner Cases • Biological Connection – May be natural birth mother – May have donated genetic material (with intent to raise child jointly) • Gender-neutral reading of the UPA – UPA (1973) Section 21 – insofar as practicable, the provisions of the UPA applicable to the father-child relationship are also applicable to the mother-child relationship – UPA (2002) Section 201(a) clarifies that the mother-child relationship may be established by: • Giving birth • An adjudication of the woman’s maternity • Adoption • Valid gestational agreement

22 Unique Challenges in Same-sex Partner Cases • Presumed parent/equitable adoption/de facto parent • Pre-birth agreements/co- parenting plans • Domestic partnership laws • DOMA

23 Unique Challenges in Same-sex Partner Cases

• What if 2 “moms” sign a VAP? • Is a support order entered in same-sex partner case entitled to FFC? • May a new support order be entered? • What is the impact of UIFSA? 24 Unique Challenges in Same-sex Partner Cases

• What about support orders from FRCs or where foreign order is requested to be enforced under state-level agreement or on the basis of comity?

25 Unique Challenges in Same-sex Partner Cases

CASE EXAMPLES:

• Matter of Sebastian, 879 N.Y.S.2d 677 (Surr. Ct. N.Y. Co. 2009 (Court grants a second parent adoption to the genetic mother of a child conceived by donating her ova to be fertilized by an anonymous sperm donor and carried by her partner. Given NY’s “evolving jurisprudence of same-sex relationships, equal protection full faith and credit, and the effects of DOMA, the only remedy available in NY that would accord both parents full and unassailable protection was a second parent adoption.) • Halpern v City of Toronto, 172 O.A.C. 276 (Ontario) [2000] (The right to same-sex marriage is recognized under the Canadian Charter of Rights and Freedoms.) • Carol Chambers v Karen Chambers, 2005 Del. Fam. Ct. LEXIS 1 (Del. Fam. Ct. 1/12/05) (An ex-partner of a lesbian couple found to be a de facto parent within the meaning of Delaware child support law, had legally established visitation rights, and was equitably estopped from refusing to pay child support.)

26 Further Reading

Paula Roberts, Parentage Case Update: Can a Child Have Two Mothers, Pub. No. 05-53 at www.clasp.org/publications/parentage_update_1201 05

Susan F Paikin and William Reynolds, Parentage and Child Support: Interstate Litigation and Same-Sex Parents, 26 Delaware Lawyer 26 (Spring 2006)

Can Gay Marriage Strengthen the American Family? Brookings Institution Briefing 4/1/04, www.brookings.org/comm/events/20040401.htm

27 Paternity Issues in Assisted Reproduction Technology (ART) Cases Unique Challenges in ART Cases

• Medical advances and scientific advances offer multitude of ART technologies , where child may be biologically related to one, both, or neither member of the couple and may have as many as 6 “parents” – Sperm donor – Egg donor – Gestational mother – Gestational mother’s husband – Intended mother – Intended father

29 Unique Challenges in ART Cases • Competing legal theories: societal need to strengthen the traditional 2-parent family and recognition that in today’s science and social structure picking 2 is artificial. • Fundamental legal presumptions and genetic identity – does biology still control? • Giving birth vs. giving genetic material • Intent-based model for ART parenting presumptions

30 Unique Challenges in ART Cases

• Some general rules: – Man who anonymously donates sperm to a sperm bank is NOT a parent of a child conceived by ART (though lots of discussion about breaking the seal of confidentiality) • But less clear if it is self-help – informal/known donation – Husband is obligated to support child born via artificial insemination (even though parties do not execute agreement legitimizing child under state law) • Also wife can’t contest husband’s paternity – UPA (2002) – biology does not control (Sec. 702: “A donor is not a parent of a child conceived by means of assisted reproduction.”) • Does not apply to children conceived through sexual intercourse

31 Unique Challenges in ART Cases • Canada: Assisted Human Reproduction Act is federal legislation that applies across Canada, regulates a variety of issues relating to new technologies and reproduction. – Goal is to avoid commoditization of human life by sanctioning practices such as commercial surrogacy and commercial egg donation. – Critics: the issue of who are the legal parents and who is liable for child support is not covered by the legislation (determination of parentage is a provincial matter) 32 Unique Challenges in ART Cases Policy Questions • How many individuals may serve a recognized parenting role for a given child? In multiple parent situations, how should the different aspects of the parenting roles be distributed? • Which should be more determinative of parental responsibilities and parental status – the bio-genetic connection or the intention to become a parent? • How should the IV-D agency approach ART cases?

33 Questions??

34 Losing Fatherhood

By RUTH PADAWER

Ruth Padawer is an adjunct professor at Columbia University's Graduate School of Journalism. Her last article for the magazine was about a dating site for ''sugar daddies.''

I.

It was in July 2007 when Mike L. asked the Pennsylvania courts to declare that he was no longer the father of his daughter. For four years, Mike had known that the girl he had rocked to sleep and danced with across the 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.''

Images: PHOTOS: Mike L., holding an owl that belongs to his daughter, still pays child support even though his ex-wife married the girl's biological father. (pg.MM39); THE LOBBYIST: Carnell Smith, after his own paternity struggle, persuaded the Georgia Legislature to rescind the financial obligations of nonbiological fathers. (pg.MM42); FATHERLY INSTINCT: Tanner Pruitt, holding a panda that belongs to the girl he helped raise, chose to keep paying child support rather than risk hurting her. (PHOTOGRAPHS BY HORACIO SALINAS FOR THE NEW YORK TIMES) (pg.MM44)

Copyright 2009 The New York Times Company Reprinted with permission.

Downloaded from jech.bmjjournals.com on 15 August 2005

Measuring paternal discrepancy and its public health consequences

Mark A Bellis, Karen Hughes, Sara Hughes and John R Ashton

J. Epidemiol. Community Health 2005;59;749-754 doi:10.1136/jech.2005.036517

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REVIEW Measuring paternal discrepancy and its public health consequences

Mark A Bellis, Karen Hughes, Sara Hughes, John R Ashton ......

J Epidemiol Community Health 2005;59:749–754. doi: 10.1136/jech.2005.036517 Paternal discrepancy (PD) occurs when a child is identified Increased understanding of human genetics5 and, more recently, widespread public access to as being biologically fathered by someone other than the genetic identification techniques now means man who believes he is the father. This paper examines that almost anyone can establish the biological published evidence on levels of PD and its public health parentage of their children.67 Moreover, along with an increase in parentage testing8 health consequences. Rates vary between studies from 0.8% to services now use genetic techniques in diagnosis9 30% (median 3.7%, n = 17). Using information from and treatment,10 with criminal justice organisa- genetic and behavioural studies, the article identifies those tions also using genetic techniques in crime detection.11 Such techniques can inadvertently who conceive younger, live in deprivation, are in long term uncover inconsistencies in a family’s genetics relationships (rather than marriages), or in certain cultural that disclose PD.12 However, while the opportu- groups are at higher risk. Public health consequences of PD nity to expose PD through paternity testing or routine health and judicial procedures has being exposed include family break up and violence. increased, little consideration has been given to However, leaving PD undiagnosed means cases having the consequences. Here, we collate existing incorrect information on their genetics and fathers evidence on the prevalence of PD, review how increasing use of genetic techniques will con- continuing to suspect that children may not be theirs. tinue to reveal more cases, and examine the Increasing paternity testing and use of DNA techniques in public health consequences of people having clinical and judicial procedures means more cases of PD greater need for, and access to, such knowledge. will be identified. Given developing roles for individual’s METHODS genetics in decisions made by health services, private Titles and abstracts of peer reviewed scientific services (for example, insurance), and even in personal literature (PubMed 1950–2004 including Med- line 1966–2004, BIDS International Bibliography lifestyle decisions, the dearth of intelligence on how and of the Social Sciences 1951–2004, PsychINFO when PD should be exposed urgently needs addressing. 1887–2004) were interrogated for references to ...... the prevalence of PD, mechanisms for its detec- tion, and the potential health consequences of PD being exposed. The key search terms used or any father, identifying that the child they were: nonpatern*; non and patern*; and father are raising as their biological progeny is matched with discrepancy, uncertainty, mis- Factually sired by another man (paternal attributed, false and investment. Peer reviewed discrepancy (PD)) can have substantial health papers were supplemented by reports from consequences. Such knowledge can also destroy conference abstracts, books, and other scientific 1 families; affecting the health of the child and reports (table 1). As relevant literature was not mother as well as that of any man who is associated with any particular journals hand 2 ultimately identified as the biological parent. searching13 was not undertaken on any journal’s Typically, PD is associated with a woman having entire contents but references listed within all a sexual relationship (usually covertly) outside of identified literature were examined for addi- her marriage or long term partnership. Here PD tional relevant papers. Using all available data occurs when a child is believed to have been See end of article for we used discursive qualitative techniques to authors’ affiliations fathered by the husband (or partner) but is assess the evidence for PD. Thus, all papers were ...... actually the progeny of another man. Pregnancy examined separately by two authors for refer- may be accidental but occasionally may be the ences to PD, sampling characteristics, methodol- Correspondence to: Professor M A Bellis, reason for infidelity (for example, where sex ogy for identification of PD, and potential bias Centre for Public Health, with the long term partner has not produced inherent in studies that have measured PD but Faculty of Health and children a woman might seek conception else- usually not been designed for that purpose (see Applied Social Sciences, where3). PD also occurs without infidelity. Where table 1). Where authors’ classifications conflicted Liverpool John Moores University, Castle House, a woman quickly changes from one sexual this was resolved by a third author examining North Street, Liverpool L3 relationship to another, a pregnancy resulting the document. 2AY, UK; m.a.bellis@livjm. from a previous partner can be wrongly attrib- Literature reviews and, where necessary, ori- ac.uk uted to a new partner. Rarely, PD occurs because ginal research literature were also examined to Accepted for publication of medical mistakes including mix ups of semen 22 June 2005 during artificial insemination and in vitro ferti- Abbreviations: PD, paternal discrepancy; STI, sexually ...... lisation.4 transmitted infection

www.jech.com Downloaded from jech.bmjjournals.com on 15 August 2005 750 Bellis,Hughes,Hughes,etal identify developments in the use of DNA techniques that younger women are at highest risk (for example, British have disclosed or could potentially disclose PD. Finally, women with concurrent sexual partners in past 12 months; although few publications deal with how demographics may 16–24 years = 15.2%, 25–34 years = 7.6%22). Prevalence of affect levels of PD and we found no papers dealing directly women with concurrent partners has increased over the past with how exposing PD could affect health, we use a decade (for example, Britain22). Consequently, girls who combination of extensive literature reviews and original conceive at early ages may have greater chances of PD with research literature on sexual behaviour and the health first pregnancies having been shown to be at higher risk.24 correlates of different social structures to address each issue One in five women in marriages or long term relationships in respectively. the UK have had affairs and similar figures are reported from most developed countries.25 However, higher rates of infide- 26 RESULTS lity are seen among pairs who are not married. Furthermore, time spent apart in marriages or long term How common is paternal discrepancy? Few studies have been undertaken specifically to estimate relationships (for example, through occupational travel) is 14 also associated with higher levels of infidelity as is living in population levels of PD and most evidence is based on data 27 collected for other purposes (table 1). Historically, compar- higher population densities. Sexual risk taking (measured isons of family members’ blood groups (ABO and rhesus) for instance by levels of sexually transmitted infections either collected for blood donation or for other purposes (STIs)) has also been associated with higher levels of 28 29 provided some estimates of PD (table 1). More recently, deprivation as well as ethnic and cultural issues. Thus, investigations of familial patterns of disease inheritance have in the USA, African Americans’ rates of gonorrhoea can be 20 30 identified PD15 and led to further estimates of its prevalence times higher than their white counterparts, while Hispanic (table 1). An additional source of estimates results from adolescents have birth rates 2.9 times those of non-Hispanic 31 commercial and public organisations offering tests to fathers white adolescents. Studies in the UK also show similar 29 who already suspect PD (table 1). Such studies are no ethnic differences in sexual risk and limited analyses of PD 32 substitute for population surveys and contain biases that suggest higher rates among some ethnic groups. Thus, 14 either exaggerate or underestimate population levels of PD. ethnicity as well as lower socioeconomic class, younger age, Thus, PD estimates based on men or women seeking proof of and higher levels of deprivation seem to be risk factors for paternity can overestimate levels of PD where paternal both PD as well as other sexual health issues (for example, 33 uncertainty was usually the motivation for testing. In teenage pregnancy and STIs ). contrast, estimates based on genetic health screening and other studies (where confirming paternity was not the IncreasesintechniquesthatidentifyPD objective) may underestimate PD as people can refuse to Genetic techniques are becoming increasingly central to participate or are excluded15 when subjects or investigators modern medicine. Both the number of conditions thought to consider paternity in doubt. Estimates can also include be related to a person’s genetics (for example, cystic fibrosis34; anomalies that seem to be PD but result from other social coronary heart disease35; cancer36; obesity37) and the number phenomenon. Thus, people may adopt a child or conceive of DNA molecular tests undertaken continues to increase through AID (artificial insemination by donor) but keep such (UK9). The role of genetics will increase as more diseases information hidden. Equally, friends or relatives occasionally are related to genetic predispositions5 and treatments raise a child as theirs when the mother is too young, unwell, become tailored to a patient’s genome.38 Often, genetic considered inappropriate, or has abandoned the child.16 screening can be triggered by a child, parent, or other relative Historical blood type data or even modern data identifying developing a genetic disease and consequently, many family relatives of natural disaster and terrorist attack fatalities17 18 members will be screened to determine who else is at can include such anomalies unless family histories are risk and the exact nature of the genetics.39 Such tests are available. Here, to estimate population levels of PD we have essential for clinicians and patients to make vital decisions included all identified published estimates of PD except regarding lifestyle,40 terminations of pregnancy,41 whether where they do not include at least basic methodological to conceive at all and types of treatment42 but will also details and sample sizes or are based on historical data over identify PD. In these circumstances, there are clear advan- multiple generations.19 20 We have also excluded estimates tages to patients understanding their actual genetic inheri- derived solely from behavioural studies that have not tance, in particular in allowing them to rule out genetic included biomolecular marker testing (table 1). For the conditions experienced by their social father and instead remaining studies we examine two types of PD rates. For take into account those relating to their biological father. disputed paternity tests median levels of PD across 16 studies Equally for health professionals in general, measuring PD is is 26.9% (interquartile range (IQR) = 16.7%–33.4%). essential to understanding the genetics of health and ill However, being based on cases where PD was already health43 with discounted PD confusing estimates of herit- suspected this inevitably overestimates population levels ability and potentially inhibiting development of genome (table 1). For studies based on populations chosen for based interventions. reasons other than disputed paternity (table 1) median PD Two further expanding health areas also expose PD. Organ is 3.7% (IQR = 2.0%–9.6%). While this is not a measure of donation, particularly when close family is screened for population prevalence it does suggest the widely used (but potential donors, can identify PD (for example, kidney unsubstantiated) figure of 10% PD21 may be an overestimate donation44). Equally, examination of male fertility can for most populations. identify people who are infertile and unlikely to have ever been fertile. PD is exposed when this diagnosis occurs in Who will PD affect most? families where the husband (or long term partner) already While few studies have measured demographic effects on believes he has fathered one or more children.45 levels of PD, higher rates have been found among people Criminal investigations increasingly rely on DNA techni- from lower socioeconomic groups.14 Furthermore, existing ques to identify culprits and important investments have data on sexual behaviour permit some measure of those been made to develop DNA databases of criminals (for populations most at risk.22 23 Increased risk of PD is seen example, the National DNA Database, UK46). Such databases among people with concurrent sexual partners. As having have already been used to identify relatives of criminal concurrent sexual partners occurs more at earlier ages, offenders47 and consequently have the potential to expose

www.jech.com aenldsrpnyadpbi health public and discrepancy Paternal

Table 1 Summary of studies providing measures of paternal discrepancy stratified into disputed paternity tests and those undertaken for other reasons

Sample PD estimate % Country Population* Size (95% CIs) Method` Bias1 Reference

Disputed paternity testing USA After birth 200 29.0 (22.7 to 35.3) Blood and other markers Marsters, 195762 Sweden After birth 3913 26.1 (24.7 to 27.5) Blood and other markers Valentin, 198063 USA After birth 2500 25.5 (23.8 to 27.2) Blood and other markers Houtz et al, 198264 USA After birth 1393 25.8 (23.5 to 28.1) Blood and other markers Mickey et al, 198665 66 Finland After birth 26 34.6 (15.0 to 54.2) DNA testing Helminen et al, 1988 Downloaded from South Africa After birth 2124 38.2 (36.1 to 40.3) Blood and other markers Du Toit et al, 198932 Mostly UK After birth 1702 16.6 (14.9 to 18.4) DNA testing Jeffreys et al, 199167 Finland After birth 35 15.2 (2.1 to 26.5) DNA testing suspected non-paternity (+) Helminen et al, 199268 Germany After birth 256 16.8 (12.2 to 21.4) DNA testing Krawczak et al, 199369 USA Prenatal 37 53.0 (37.2 to 70.9) DNA testing Strom et al, 199670 USA After birth 753 37.0 (33.6 to 40.5) DNA testing Strom et al, 199670 Russia After birth 21 14.0 (0 to 30.6) DNA testing Molyaka et al, 199771 UK After birth 16122 13.0 (12.5 to 13.5) DNA testing Boardman F, 199872 73

Portugal After birth 83 27.7 (17.9 to 37.5) DNA testing Geada et al, 2000 jech.bmjjournals.com Portugal After birth 790 29.8 (26.6 to 32.9) DNA testing Geada et al, 200073 USA and European After birth 310490 29.1 (28.9 to 29.3) Mixed methods American Association of Blood Banks, 200248 Other testing UK Southern English families 2578 3.7 (3.0 to 4.4) Blood and other markers not known Edwards, 195774 USA Undisputed paternity tests 67 18.0 (8.5 to 27.3) Blood and other markers not known Sussman and Schatkin, 195775 USA Michigan white sample 1417 1.4 (0.8 to 2.0) Blood and other markers not known Schacht and Gershowitz, 196376 USA Michigan black sample 523 10.1 (7.5 to 12.7) Blood and other markers not known Schacht and Gershowitz, 196376 USA Californian white sample 6960 2.7 (2.3 to 3.1) Blood and other markers not known Peritz and Rust, 197277 UK Southern English families 200 30.0 (23.6 to 36.4) Blood and other markers poor test sensitivity (2) Philipp, 197378 South America Yanomama tribe 132 9.0 (4.1 to 14.1) Blood and other markers not known Neel and Weiss, 197579 USA Hawaiian families 2839 2.3 (1.7 to 2.8) Blood and other markers non-participation in sample (2) Ashton, 198080 on15August2005 France Screening and paternity tests 300 7.0 (4.1 to 9.9) Blood and other markers some suspected non-paternity (+) Salmon et al, 198081 New Zealand Tokelau families 1983 4.0 (3.1 to 4.9) Blood and other markers not known Lathrop et al, 198382 Mexico Families with new borns 217 2.9 (0.6 to 5.0) Blood and other markers not known Pen˜aloza, 198683 UK Cystic fibrosis screening 521 1.4 (0.4 to 2.3) DNA testing non-participation in sample (2) Brock and Shrimpton, 199115 France Genetic screening (various) 362 2.8 (1.1 to 4.5) DNA testing non-participation in sample (2) Le Roux et al, 199284 Canada Haemophilia B screening 25 4.0 (0 to 12.3) DNA testing non-participation in sample (2) Poon et al, 199385 Switzerland Cystic fibrosis/bone marrow screening 1607 0.8 (0.4 to 1.3) Mixed methods non-participation in sample (2) Sasse et al, 199486 Mexico Nuevo Leon new borns 396 11.8 (8.7 to 15.1) Blood and other markers not known Cerda-Flores et al, 199914 UK Multiple sclerosis screening 744 1.6 (0.7 to 2.5) DNA testing non-participation in sample (2) Chataway et al, 199987 Behavioural estimates UK Magazine readers 2708 6.9 to 13.8 Behaviour based estimate sample composition (+) Bellis and Baker 199088 USA College undergraduates 285 13.0 to 20.0 Behaviour based estimate not known Gaulin et al, 199789

* All populations in ‘‘other testing’’ are after birth. CI, confidence intervals. 95%CIs were not included in most papers reporting levels of PD. Here, we have calculated all confidence intervals based on the sample size and percentage included in the table. However, this does not take into account sampling and other methodological variations between studies. 95%CIs have not been calculated for behaviour based estimates as these have been published as ranges. ` Blood and other markers methods usually rely on ABO and rhesus blood groupings or human leucocyte antigen differences. In studies using these methodologies calculations of PD prevalence often include a corrective factor to account for discrepancies that remain undetected. With DNA tests polymerase chain reaction and restriction fragment length polymorphism are commonly used and PD detection rates are usually sensitive enough to require little or no correction. 1 Bias is identified as

www.jech.com (+) = likely to overestimate PD and (2) = likely to underestimate PD. All disputed paternity testing is likely to recruit individuals who already suspect PD and results exaggerate population levels. Genetic screening for health reasons is likely to be avoided by those concerned that PD will be exposed and consequently may underestimate PD. Not known is entered next to studies where direction of any bias is unclear. Behaviour based estimates rely on questionnaires rather than biomolecular markers to estimate PD. 751 Downloaded from jech.bmjjournals.com on 15 August 2005 752 Bellis,Hughes,Hughes,etal

Policy implications What this paper adds

N As advances in genetic techniques allow paternal N Provides a broad review of paternal discrepancy rates discrepancy to be identified, clear guidance is and population characteristics related to its prevalence. necessary on when and how it is disclosed. N Reviews the new methodologies used by health and N Individual and family support services need to be judicial systems that have increased the likelihood of integrated into the paternity testing service and detecting paternal discrepancy. supported by appropriate training. N Examines the public health consequences both of N Sufficient evidence is already available to suggest disclosing paternal discrepancy and of keeping it paternal discrepancy affects the health of many people. undisclosed. Appropriately designed studies are now required to N Identifies the urgent need for better intelligence on accurately measure its demographics and quantify its demographics of paternal discrepancy and its effects direct and indirect costs. on family structure and health. N Health and judicial procedures that can identify paternal discrepancy should have guidance on when and how paternal discrepancy should be exposed and effects of breakdowns in relationships include increased such guidance should be publicly available. mental health problems for both partners52 while children can experience low self esteem, anxiety, and increased involvement in antisocial behaviour such as aggression.53 unexpected anomalies including PD. Furthermore, both Other issues related to separations such as relocation of one health and judicial systems increasingly rely on genetic parent and children can also have detrimental effects.54 Not testing in major disasters (for example, environmental all disclosures of PD will result in relationships ending.44 catastrophes and terrorist attacks) to confirm the identity However, those that continue must cope with a child in the of those who may have perished; especially where bodies family structure who is related to only one parent and have been damaged beyond recognition.17 18 Here, genetic sometimes the result of infidelity. Despite many mixed family sampling can expose PD where DNA results (matched to a structures working well, fathers spend more time and other parent, child, or other relative) conflict with other evidence resource on their biological children and, at worst, children in (for example, clothing, jewellery found on corpses). families where the father is not their own may be at greater By far the most common means available for most people risk of paternal violence.55 Suspected infidelity is also a to test PD is through use of commercial testing kits with trigger for domestic violence against women.56 Furthermore, multiple web sites already advertising this service. People people outside the family who are ultimately identified as (usually concerned fathers) visit a clinic or send off for a true biological fathers may experience breakdown in their testing kit and provide samples (cheek swabs, hair follicle own relationships. With such outcomes relating to the results samples) from themselves and the child for testing.6 The of paternity tests it is vital that they are accurate. However, number of tests undertaken annually continues to increase some commercial companies have already been known to (USA, 1991 = 142 000, 2001 = 310 49048). Although some provide false results.57 countries are considering changing legislation to try to stop Minimising the negative consequences of PD disclosure fathers testing children without the permission of the requires services and support to be immediately available. mother, such legislation is unlikely to affect testing patterns However, with PD testing even basic counselling is not as using services based abroad is comparatively simple. always provided and those receiving results by letter, email, or over a web site can be effectively isolated. Although people Public health consequences of PD might approach generic support services (for example, Despite increasing use of, and access to, techniques that can marriage guidance, general practice) in general these have identify PD, very little consideration has been given to the little or no research regarding PD on which to base practice or consequences of a family becoming aware of PD or what services and support are required when PD is exposed. advice. Effective practice and available support can be even Furthermore, even when PD is inadvertently identified by scarcer for the mother, child, and for the man eventually public agencies, a public health perspective is necessary to identified as the biological father. assess how such information should be used and if and when Although restricting access to commercial testing may those affected should be informed. seem appropriate, the public health impact of restrictions A 4% PD would affect far more than 1 in 25 families. Given could also have negative consequences. Here we estimate that an average of two children per family, more families will be only around one in every four elective tests identify PD; the affected within just a single generation; although it is remainder confirm the father and child are biologically probable that PD will cluster in some family groups.25 related (table 1). Again little is understood about the Typically however, many families have three or more living consequences to parents or children of the father suspecting generations. Consequently, the proportion of families PD but not having this established or refuted. Many are likely affected will increase further when other relationships (for to be similar to having PD confirmed (that is, stress, possible example, between parents and grandparents) are also family breakdown, and abuse). For three quarters of considered. individuals, PD tests will allay their suspicions and may In addition, for each child resulting from PD there is also a improve relationships. biological father elsewhere and such people are often part of The issues surrounding accidental disclosure of PD through other long term relationships involving marriages and health or judicial activity are no more clear cut. To date children.49 inadvertent identification of PD has usually been kept from An important consequence of discovering infidelity in a those affected. However, more links between genetics and marriage or other relationship is the eventual breakdown of individuals’ health are identified every day and consequently that partnership.50 Around 20% of divorces feature claims of the case for the child to be informed is strengthened. infidelity by one or both partners (England and Wales51). The Increasingly, the knowledge of genetic inheritance is not just

www.jech.com Downloaded from jech.bmjjournals.com on 15 August 2005 Paternal discrepancy and public health 753 of use to clinicians but informs the lifestyle choices of the most inadvertently identified PD is ignored along with the person,40 the decision to procreate,58 and in some cases access associated consequences to people of not knowing the correct to insurance.59 Consequently, a person left wrongly believing parentage and the possibility that PD may be discovered later. they are related to a father with a heritable condition will However, in a society where services and life decisions are suffer some disadvantage. Disclosing PD in a controlled increasingly influenced by genetics, our approach to PD health care environment may also have substantially fewer cannot be simply to ignore this difficult issue but must be health consequences than if later uncovered independently informed by what best protects the health of those affected. through commercial tests. Equally, as public understanding of heritability increases, inheritance patterns in families will ACKNOWLEDGEMENTS allow people to identify (or suspect) PD themselves. We are grateful to Penny Cook, Jim McVeigh, Sara Edwards, and Furthermore, the same increase in understanding will Matthew Ashton for comments on this manuscript and to Maxia discourage people from using modern genetic techniques in Dong and two other anonymous referees for their comments on an case PD is disclosed.15 Overall, the health consequences of earlier version of this manuscript. either revealing PD or maintaining confidentiality are ...... strongly linked to the rights of the child, father, and mother Authors’ affiliations and recent developments in assisted fertility (for example, in M A Bellis, Centre for Public Health, Faculty of Health and Applied Social Sweden and the UK) now place the child’s right to know Science, Liverpool John Moores University, Liverpool, UK their biological father above that of the donor (biological K Hughes, S Hughes, Behavioural Epidemiology, Centre for Public parent) to remain anonymous.60 Health, Liverpool John Moores University J R Ashton, Government Office North West, Manchester, UK CONCLUSIONS Funding: none. Modern genetic techniques continue to open a Pandora’s box Conflicts of interest: none. on hitherto hidden aspects of human sexual behaviour. No clear population measures of PD are currently available. REFERENCES However, recent trends in sexual health suggest unprotected 1 Lucassen A, Parker M. Revealing false paternity: some ethical considerations. sex and multiple sexual partners (two key requirements for Lancet 2001;357:1033–5. PD) are comparatively common occurrences21 22 with a large 2 Brown R. Does Res Judicata bar tort claims for misrepresenting paternity? proportion of conceptions still unplanned (around a third in Am J Fam Law 2003;17:179. 61 3 Hughes SM, Harrison MA, Gallup GG. Sex differences in mating strategies: the UK ). mate guarding, infidelity and multiple concurrent sex partners. Sexualities, Efforts to reduce PD may meet with some success. Evolution and Gender 2004;6:3–13. Improved contraception in at risk groups such as young 4 Spriggs M. 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www.jech.com rCMIUKC Susan F. Paikin William L. Reynolds

Parentoae

Interstate Litigation and Same-Sex Parents The formation, The past few years have seen a dramatic increase in couples of the same sex living together openly. Increasingly, those couples want to lead "normal" recognition, and middle-class lives, including that most middle-class of all life-style orna- rights of those ments, children. ame-sex couples, like their hetro- are beginning to see the same pattern families has been a sexual counterparts, raise children of breakups as more traditional families. constant source of in joint or separate households. The Those family breakups, of course, Sformation, recognition, and rights involve children, and, as a result, the of those families has been a constant legal system has begun to face some not-so-polite public source of not-so-polite public discourse difficult issues. and political wrangling. Adoption by The Problem gay individuals or partners led the way, discourse and 1 Whether or not the end of the adult though not without legal challenges. relationship involves a legal divorce, ter- political wrangling. Medical interventions and scientific ad- mination of a domestic partnership, or vances now offer a smorgasbord of as- simply moving out and on, when chil- sisted reproductive technologies, where dren become involved, attention shifts a child may be biologically related to to the normal disputes involving the one, both, or neither member of the couple's children — custody, visitation, couple — and a child could have as 2 child support, and parentage. This arti- many as six parents. Layered on top is cle focuses on child support and parent- the hot-button topic of the legal status age. Those issues are perhaps not very a same-sex couple may obtain in some difficult when the events occur wholly states or countries — domestic partner- within one state. After all, all that the ships or gay marriage — and the De- 3 state needs to do is determine whether it fense of Marriage Act (DOMA). will treat same-sex families in the same Not surprisingly, same-sex families way that traditional families or relation-

26 DELAWARE LAWYER SPRING 2006 ships are treated. port. Chief Judge Kuhn accepted the referred to as a de facto parent." The The California Cases. Well, perhaps commissioner's order requiring Carol complications multiply, however, when a not so simple. Recently, the California to pay current child support for David, child-support or paternity decree in one Supreme Court decided three cases that who had been born to Karen during the state (often referred to as F-l) must be raised the question whether a child can couple's three-year cohabitation. Visita- enforced in another state (F-2). A related have two mothers. Using both equi- tion between Carol and David had been problem occurs when one "parent" re- table principles and the Uniform Par- set by a 2000 Family Court order. The sides in a different state from the biolog- entage Act, the California courts held decision, based on the best interests of ical parent and child, and no basis exists that biology alone does not control David, found Carol to be David's par- for the child's state to assert long arm parentage.4 Thus, a birth mother could ent within the meaning of the Dela- jurisdiction over the proposed obligor. not disestablish the parentage of her les- ware child-support law. Carol, in other This article first discusses the enforce- bian ex-partner, where they had entered words, was a de facto parent. She had ment of F-l child support orders in F-2. into a stipulated court order (before the been in a committed relationship with We do so because enforcement presents child's birth) that both would be the David's biological mother at the time the most common interstate child sup- child's legal parents. 5 of his conception and birth, and Carol port problem. In doing so, we will ad- Similarly, a woman who had do- dress the related problems that arise nated her ova, which was then fertil- when no order was issued in F-l, and ized and carried by her former regis- F-2 is asked to establish such an order. tered domestic partner, was declared Today, more than Child support is particularly interest- the parent of the twins born six years ing both because the national child before the couple's breakup, despite support enforcement program offers having signed a document similar 250,000 children are a template of very similar state laws12 to the ones used by a sperm donor. and because a significant number of The court held that: The law apply- being raised in child support cases will, at one time ing to sperm donors did not apply or another, involve situations where to egg donors in this situation, the same-sex-couple the parents reside in different states. ex-partner was the biological moth- The Traditional Framework. er of the twins, and under the Uni- The law never writes on a clean slate, form Parentage Act both mothers households. In of course, and it has long found solu- evidenced intent of establishing the tions to problems involving children mother-child relationship.6 response... courts when a couple, marital or not, dis- In the third case, a lesbian couple solves. When the legal problem lies each gave birth (the first to a son, the have looked to factors entirely within one state, that state second, a few months later, to twins). has been free to work out whatever They lived together as a family, but legal principles it deems appropriate, neither partner signed a domestic other than biology to within the general framework pro- partnership agreement nor formally vided by the federal and state consti- adopted each other's children. After define the parent-child tutions and statutory law. Normally, the couple separated, the mother that solution is provided by a judicial of the twins began receiving pub- relationship. order. However, Congress has man- lic assistance and the county child dated that all states have a voluntary support enforcement agency7 sought paternity acknowledgment law un- child support from her former part- der which an acknowledgement that ner, who denied responsibility assert- and Karen had a specific intent to co- is not timely rescinded or challenged ing that she was neither the biological parent together. Accordingly, Carol was ripens into a legal determination of pa- 13 nor legal parent of the twins. The court equitably estopped from refusing to pay ternity, without judicial ratification. applied the statutory presumption of child support. Sometimes, however, the legal issue paternity, as the defendant had taken the The Legal Problems arises after one of the couple (or even all twins into her home and held them out These cases reflect the continued evo- members of the putative family) leaves as her own. However, the defendant was lution of the concept of family in Ameri- the state, and no effective judicial order not permitted to rebut that presumption can society. Today, more than 250,000 is ever issued there. and abandon the children to the care children are being raised in same-sex- The Interstate Framework. Inter- and resources of the other parent; thus, couple households.10 In response to this state problems involving children in- child support was ordered.8 evolution, courts have looked to factors voke several different governing rubrics: The Delaware Case. In Carol Cham- other than biology to define the par- the Constitution, the relevant uniform bers v. Karen Chambers? the Family ent-child relationship. Some jurisdic- statutes (which have been adopted, with Court of Delaware addressed the ques- tions have defined the relationship by small variations, in every state), and tion whether an ex-partner of a lesbian combining both biological and psycho- their implementing federal statutes. couple should be liable for child sup- logical factors; thus developing what is Full Faith and Credit. The most im-

SPRING 2006 DELAWARE LAWYER 27 FEATURE

portant interstate principle comes from Sex Couples. Two special problems, of paternity; that might well be, in the the Full Faith and Credit Clause of the however, arise for same-sex couples; statutory language, "... a right or claim United States Constitution14 That clause these are the Defense of Marriage Act arising from such relationship." 19 has long been read to require that a fi- (DOMA) , and the Supreme Court's Lawrence. This is the true wild card 2 nal judgment entered by any Ameri- decision in Lawrence v. Texas. " DOMA in the deck. In Lawrence, the Supreme can court must be given as much pre- and Lawrence move the discussion in Court struck down a Texas law imposing clusive effect as it would receive in the opposite directions, however. There criminal penalties for consensual con- state where it was rendered. In short, if is also the consideration as to whether duct between homosexuals. The major- a Maryland court issues a child support state laws to establish paternity are more ity opinion by Justice Kennedy contains order, that order must be given as much generally applicable to establishing legal broad language suggesting that most, respect in Delaware and every other parentage in a person of the same sex as if not all, state-based discrimination state as it would receive in Maryland. the biological parent. against homosexuals is unconstitutional; It is constitutionally irrelevant that the DOMA. Congress adopted the Defense the opinion said, for example, of a 1986 public policy of Delaware stands in com- of Marriage Act in 1996 to make clear precedent upholding a criminal convic- plete opposition to the Maryland policy that the states did not have to recognize, tion under similar circumstances, that its that underlies the judgment from that "continuance as precedent demeans the 15 under the Full Faith and Credit Clause, state. In other words, the public lives of homosexual persons."21 policy of neither Delaware nor Mary- On the other hand, the Lawrence land has any bearing on the question majority carefully limited the formal of whether Delaware should enforce extent of its holding, and specifically a Maryland judgment for child sup- Congress has stated "The present case ... does port involving same-sex parents. not involve whether the govern- The Statutes. Every state has ad- reinforced the ment must give formal recognition opted the Uniform Interstate Fam- to any relationship that homosexu- ily Support Act (UIFSA). UIFSA clear requirement als seek to enter." Thus, the majority provides that a child support judg- can be read as having issued a broad ment that satisfies its criteria must declaration of the rights of same-sex be recognized. Moreover, Congress of the Full Faith couples, or one that merely forbids has adopted legislation — The Full the criminalization of their conduct. Faith and Credit to Child Support and Credit Clause This article is not the place to ex- Orders Act (FFCSOA)16 — that was plore that question in detail. enacted under the express authority with its own How Lawrence will be inter- of the Full Faith and Credit Clause. preted remains a mystery. Read nar- The federal law tracks closely UIFSA rowly, it has little to say about the and makes quite clear that decisions mandate: Enforce subject at hand, parentage and child made pursuant to the latter are to be support, which do not criminalize routinely enforced in all American child support homosexual conduct. Read broadly, courts. In other words, Congress however, it suggests that any law has reinforced the clear requirement judgments. that "demeans" homosexuals faces a of the Full Faith and Credit Clause tough struggle to survive. And laws with its own mandate: Enforce child that treat homosexuals differently 17 support judgments. for no apparent independent reason, even under DOMA's guiding hand, do Paternity Acknowledgements. Al- same-sex marriages entered into in other "demean" homosexuals and, therefore, though not a traditional judgment, vol- states. The history confirms what the are constitutionally suspect. untary paternity acknowledgments now language of DOMA makes clear: that it create a conclusive determination of applies only to "marriage" (and divorce, It is certainly too early to tell how the paternity, subject to a 60-day rescission the dissolution of marriage): "no state tension between DOMA and Lawrence period. The acknowledgment itself be- ... is required to give effect to any pub- will play out. Both the well-prepared lit- comes a legal paternity determination, lic act, record, or judicial proceeding of igator and the wise policy-maker, how- entitled to full faith and credit. Beyond any other state respecting a relationship ever, must be aware of the problem. the rescission period, the acknowledg- between persons of the same sex that is Paternity Problems. ment may be challenged only on proof treated as a marriage under the laws of Child support orders require, of of fraud, duress, or material mistake of such state. ... Or a right or claim aris- 18 course, that parentage be determined. fact. Even in those situations, however, ing from such relationship." Thus, child Children of same-sex couples raise prob- once the time for reopening the judg- support is not covered by DOMA and lems concerning establishment gener- ment has passed in F-l, other courts orders from other states must be recog- ally, and establishment across state lines must give the paternity order full faith nized under FFCSOA. The only excep- specifically. and credit. tion to that statement might arise if the Paternity Establishment. Spurred Special Considerations for Same- order is based on a marital presumption to action by the burgeoning number of

28 DELAWARE LAWYER SPRING 2006 nonmarital children and the attendant on Uniform State Laws amended §302 unanswered questions that arise given child poverty and welfare dependence (a)(4); and an acknowledgment must these rules. There could be an existing associated with single-parent families, state, "whether there has been genetic judicial order finding the same-sex re- Congress required states to enact and testing and, if so, that the acknowledg- spondent to be the named child's parent. use expedited procedures to streamline ing man's claim of paternity is consistent Or a same-sex couple lawfully executed paternity establishment. While seek- with the results of the testing."24 a voluntary paternity acknowledgement ing to ensure that nonmarital children Establishment of Support Obliga- that has ripened under the law of F-l gained the financial and emotional ben- tions Across State Lines. Where no into a paternity determination. Under efit of two parents, it is undoubtedly support order exists, UIFSA25 permits the analysis described above, F-2 would true that Congress did not intend such a resident of F-l to establish a support be required to give full faith and credit enhancements as voluntary paternity ac- (and/or paternity) order by petition in to the sister state's judicial decree or knowledgments to be used to establish F-2, where the obligor resides. As the legal determination. With an enforce- same-sex parentage. However, neither receiving state, under UIFSA's choice able finding of parentage, would F-2 is there an explicit prohibition. Thus, of law rules, F-2 applies its own law as be authorized to find that the same-sex state law will govern whether "parent- to whether the respondent has a duty of respondent had no duty of support un- 26 age" or "maternity" can be used inter- support to the named child. Thus, F- der its law? Despite full faith and credit changeably with "paternity" — and arguments, it will likely be difficult same-sex couples would be able for trial judges in F-2 to order child to assert successfully the right to support where they would not do so in an intra-state case. A legal argu- establish parental rights in a child ment supporting that result is that using state voluntary acknowledge- UIFSA speaks of a "paternity" de- ment statutes. Given human termination and the law of F-2 gov- The Uniform Parentage Act 22 erns whether "paternity" is equiva- (2002) §106 states: "Provisions of nature and lent to "parentage." At a minimum, this Act relating to determination such cases likely will require appel- of paternity apply to determinations assisted reproductive late litigation. of maternity." Some argue that this language means the act's provisions Given human nature and assisted are not limited to opposite-sex cou- technologies, reproductive technologies, the po- ples and "man" should be read gen- tential fact situations are almost never erally as either "man" or "woman." the potential fact ending. Here are two more examples: If so interpreted, voluntary paternity A same-sex couple is legally married acknowledgments are arguably avail- situations in F-l, a child was born during the able to establish a second mother (or marriage, and F-l has a conclusive second father). However, UPA's of- marital presumption; would F-2 have ficial comments note that §106 is are almost to treat the case as one where parent- designed for those rare cases where age had been established. What if a a mother-child relationship needs to never ending. mother in F-l sought support from a be established.23 biological father in F-2; could he de- fend based on the existence of same- During drafting, there was con- sex parents in F-l? siderable debate about whether the UPA's acknowledgment provisions And there are practical issues for should include an affirmative statement 2 must first decide whether there was a the child-support agency. Is it obli- that the signors are the biological par- legal basis requiring a person who was gated to seek child support from a same- ents of the child being acknowledged. neither a biological, legal, nor adoptive sex parent named by the custodial par- ent, including one who must cooperate There is no such requirement in federal parent to provide financial support for with the IV-D agency as a condition of law, though this was likely because it the child. Clearly, states will have vary- continued welfare eligibility? Must the did not dawn on Congressional draft- ing public policy positions on same-sex agency provide services to a same-sex ers that someone other than a biologi- parenting and individual liability will be ex-partner seeking to establish parental cal father would acknowledge paternity. factually driven. rights? These are likely only the tip of The original concern of UPA's drafters There is an additional twist in inter- the proverbial iceberg. was that parties would use the acknowl- state child support establishment cases. edgment to circumvent state adoption UIFSA precludes the responding state International Problems. laws. The 2000 UPA revisions included (F-2) from considering nonparentage as A number of European countries and a "biological connection" limitation. a defense if paternity already has been Canadian provinces have given some Based on objections, primarily but not determined. 27 UIFSA's choice of law form of legal recognition to same-sex solely from the Individual Rights and rules requires F-2 to apply F-l law to couples. As a result, there will be more Responsibilities Section of the ABA, the ascertain if paternity has already been litigation involving the familial obliga- National Conference of Commissioners determined. There are a multitude of tions for those couples.

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The law here is clear. The Supreme Delaware would unlikely have a basis for operates under a state plan, approved by the federal Office of Child Support Enforcement Court has left it up to the individual precluding enforcement of a comparable (OCSE), based on program standards set by states to determine whether to rec- order from another state, even though the federal government. The Division of Child ognize the decree of a foreign court Delaware has enacted its own DOMA Support is the IV-D agency in Delaware. Fed- 31 eral matching funds are used establish and — that is, the court of another nation. provision. Similarly, Delaware courts enforce child support obligations, including In other words, the constitutional man- would apply the same analysis where an establishing paternity. Welfare recipients are date of Full Faith and Credit is not ap- original child support order is sought required to cooperate with the child support program, absent a finding of "good cause." plicable to international litigation. Even here under UIFSA. What is left open Congress has also granted enhanced enforce- for those countries or Canadian prov- is whether a Delaware parent similarly ment tools but also required states to enact inces declared to be reciprocating states situated to Karen Chambers could ob- laws as a condition of federal funding. by the Secretaries of State and Health tain a parentage and child support order 13. 42 U.S.C. §666(D)(ii) and (E). 28 and Human Services, such agreements elsewhere. • 14. See U.S. Const., art. IV, § 4, cl. 1. would not necessarily bind the state if it 15. See generally William L. Reynolds, The found that the request was "manifestly Iron Law of Full Faith and Credit, 53 Md. L. FOOTNOTES Rev. 412 (1994). incompatible" with public policy of the 1. See Lynn Wardle, A Critical Analysis of 16. 28 U.S.C. § 1738B. state. Be advised there are no reported Interstate Recognition of Lesbigay Adoptions, 3 17. There are a few exceptions—the most im- cases on this issue. Ave Maria L. Rev. 561 (Summer 2005). portant is lack of personal jurisdiction over the 2. The six include the sperm donor, the egg defendant—but the exceptions are irrelevant Further, by enacting UIFSA (2001) donor, the gestational mother, the gestational to questions involving support for children of §102(21)( B), it is arguable that the mother's husband, the intended mother, and same-sex couples. state legislature has removed the avail- the intended father. See the discussion in The 18.42 U.S.C. §666(a)(5)(d)(iii). Uniform Parentage Act: A Complete Revision, ability of the state public policy exemp- 17 Del. Lawyer 2, 8 (Summer 1999). And Vol. 19. 28 U.S.C. §1738C. tion for those foreign countries meeting 39, Family Law Quarterly (Fall 2005) con- 20. 539 U.S. 558(2003). the statutory requirement to be treated tains 10 articles and 2 book reviews (almost 21. Lawrence was a 6-3 decision. Justice Ken- 300 pages) on legal issues swirling around as- as are other American states.29 For ex- nedy's position had five votes, including his. sisted reproductive technology (ART). Justice O'Connor concurred with Kennedy on ample, Ontario, Canada is a declared 3. 28 U.S.C. §1738C. "No State, territory, a perhaps more radical note: She wrote, "The foreign reciprocating jurisdiction and or possession of the United States, or Indian state cannot single out one identifiable class has recognized the right to same-sex tribe, shall be required to give effect to any for punishment ... with moral disapproval as public act, record, or judicial proceeding of the only asserted state interest for the law." marriage under the Canadian Charter Three justices dissented. 30 any other State, territory, possession or tribe of Rights and Freedoms. There might respecting a relationship between persons of 22. Delaware enacted the Uniform Parentage well be cases, both inside and outside the same sex that is treated as a marriage under Act (2002) at 13 Del.C. §§8-101 through 8- of a same-sex marriage, where enforce- the laws of such other State, territory, posses- 904, effective 1/1/04. sion, or tribe, or a right or claim arising from ment of an Ontario child support order 23. See the differences between mother-child the relationship." and father-child establishment in UPA (2002) against a same-sex non-custodial parent 4. See Paula Roberts, Parentage Case Update:§201. is sought in the United States. UIFSA Can a Child Have Two Mothers, Pub. No. 05-24.12 Del.C. §8-302(4). thus can be read as restricting the abili- 53, at www.clasp.org/publications/parentage_ 25. In 2005, the Delaware legislature enacted update_120105.pdf; (retrieved 12/30/05). ty of a receiving state to decline enforce- the UIFSA (2001) amendments, effective 5. Kristinc H. v. Lisa R., 37 Cal.4th 156 7/1/06. The enactment contains a renumber- ment of such an order on public policy (2005). ing of UIFSA with the section numbers mir- grounds because they would not be per- 6. K.M. v. E.G., 37 Cal.4th 120 (2005). roring the uniform act. mitted to reject the order of a sister U.S. 7. Operating in accord with Title IV-D of the 26.13 Del. C. §622 (13 Del.C. §600303 ef- state. We are similarly unaware of any Social Security Act, hence the "IV-D" agency. fective 7/1/06). litigation in this context. 8. Elisa B. v. Superior Court of El Dorado 27. 13 Del.C. §634 (13 Del.C. §600315 effec- County, 37 Cal. 4th 108 (2005). On the other tive 7/1/06). hand, the Supreme Judicial Court of Massa- 28. 42 U.S.C. §659(a)(A). States were similar- CONCLUSION chusetts held that the same-sex ex-partner did ly authorized by federal law to enter into reci- A legal analysis of the interstate ob- not have a duty to support the child her for- procity agreements. 42 U.S.C. §659(a)(D). ligations that same-sex parents owe to mer partner conceived by artificial insemina- 29. "State" means a State of the United States, their children leads to the conclusion tion. The parties' parenthood agreement was the District of Columbia, Puerto Rico, the unenforceable on public policy grounds. The that enforcing established obligations United States Virgin Islands, or any territory partner was not a legal parent under Massa- or insular possession subject to the jurisdic- do not differ from those that are owed chusetts law and the court had no equity pow- tion of the United States. The term includes: by traditional parents. The only serious ers to make her pay. (B) a foreign country or political subdivision questions arise when the problems sur- 9. 2005 Del. Fam. Ct. LEXIS 1 (Del. Fam. that: Ct.1/12/05). The court used pseudonyms, face in an enforcing state that has adopt- (i) has been declared to be a foreign recipro- pursuant to Delaware Supreme Court Rule cating country or political subdivision under ed DOMA. Even then, a proper reading 7(d). federal law; of that law and the underlying policies of 10. Can Gay Marriage Strengthen the Ameri- (ii) has established a reciprocal arrangement the various other relevant statutes sug- can Family? Brookings Institution Brief- for child support with this State as provided in ing 4/1/04 at 26. (retrieved 1/20/05 from gest strongly that the traditional rules Section 308; or http://www.brookings.org/comm/events/ (iii) has enacted a law or established proce- should be followed. The more likely 20040401.htm) Other commentators in the dures for the issuance and enforcement of sup- reading of Lawrence reinforces that con- same discussion put the number at closer to port orders which are substantially similar to 400,000. clusion. Because the establishment of the procedures under this [Act). 11. Chambers, id. at 12. duty against a same-sex ex-partner has 30. Halpern v. City of Toronto, [2000] 172 12. Congress enacted Title IV-D of the Social O.A.C. 276 (Ontario). been recognized by the Family Court, Security Act in 1974. Each state IV-D agency 31. 13 Del. C. §101.

30 DELAWARE LAWYER SPRING 2006 Fighting a War Continued from page 17 project of the Military Committee of the to Terrorism, Fact Sheet, Fostering Resilience American Bar Association's Family Law in Response to Terrorism: For Psychologists a default judgment for the time during Section, and the North Carolina State Bar's Working with Military Families. Standing Committee on Legal Assistance which they were unavailable due to for Military Personnel. The Act does not 19. Id. Additional resources regarding reentry active duty. speak to the form that the request must take. can be found at: U.S. Army Soldier and Particularly in the Army, divorce rates Therefore, an affidavit, letter or memorandum Family Support Center: at http://www. have risen; in fact they nearly doubled would likely be appropriate. armycommunityservice.org. from 2001 to 2004. Sgt. Rowe Stayton, 15. Id. at 5. 20. Lenser v. McGowan, WL 2064892 (Ark. a former Air Force pilot who served 16. Id. at 5. 9/16/04). in Iraq, stated that nearly one-quarter 17. Advanced Litigation, LLC v. Herska, 2004 21. Shelorv. Shelor, 259 Ga. 462 (1989). of the soldiers in his platoon ended WL 1949292 (Del. Ch.). 22. Leland, John, Sex and the Faithful Soldier, their marriages while in Iraq.22 These 18. APA Task Force on Resilience in Response NX TIMES, October 20, 2005. statistics simply scratch the surface of the marital and familial concerns that occur before, during and after deployment of a spouse, mother or father. The new SCRA further protects the interests of the men and women serving our country. As the new SCRA is implemented, however, case law will likely further define how CUSTOMER the SCRA will be applied in specific scenarios and how the interests of the servicemember will be protected, while SERVICE at the same time protecting the interests of his children. • YOU'RE NOT FOOTNOTES ACCUSTOMED TO. 1. Boone v. Lightner, 319 U.S. 561, 575 (1943). 2. Baughn, Darrell, Divorce and Deployment: Representing the Military Servicemember. FAMILY ADVOCATE, Fall 2005 at 8. 3. Id at 8. 4. The Servicemembers Civil Relief Act Carol DeBlase applies to all civil litigation and is not limited Personal Bunker to the area of domestic law. However, the authors have chosen to focus on this area only. 5. 50 U.S.C. §511(4). Our personal bankers do more than fill your needs, they anticipate 6. Although various tribunals are covered pursuant to 50 U.S.C. 511(5), this article them. Because they'll not only know your name—they'll know is limited to issue relating to notice and participation in judicial and administrative you. Christiana Bank can help you manage everything from your hearings. day-to-day finances to trusts. Feel free to stop by and experience 7. 50 U.S.C. §502. 8. 50 U.S.C. §582. a banking atmosphere like no other. Or call (302) 421-5800 9. 50 U.S.C. §201(b)(2). If the attorney orvisitwww.christianabank.com to learn more. cannot locate the serviceperson, actions by that attorney do not bind the serviceperson or operate as a waiver of any defenses that the serviceperson may have. 10. 50 U.S.C. 521(4)(d). 11. 50 U.S.C. 522(c). 12.Meixell,JohnT., Servicepersons Civil Relief CHRISTIANA BANK & TRUST COMPANY- Act Replaces Soldiers' and Sailors' Civil Relief Act, 2003 DEC ARMY LAW, 38. Banking tme way it\hould be. 13. Because both men and women serve in the military and fall under the purview of the Servicemembers Civil Relief Act, "him" and 3801 KENNETT PIKE (Greenville Center) B[HD[B "her" are used interchangeably in this article. Deposit Services • Private Banking • Asset Management • Trust Services FDIC Commercial Lending Services 14. Sullivan, Mark E., A Judge's Guide to the Serviceperson's Civil Relief Act, 5, a joint

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