A Guide to Establishing Paternity for Nonmarital Children: Implementing the Provisions of the Personal Responsibility and Work Opportunities Reconciliation Act of 1996

Aug 01, 1996  |  Paula Roberts

Introduction

Between 1940 and 1993, America's non-marital birth rate rose from 3 percent to over 30 percent. And demographers tell us that the percentage of children born outside marriage is likely to exceed 50 percent in the next few decades if the current trend holds.

Concern about the legal and economic status of these children has caused states and the federal government to attempt to streamline the paternity establishment process. Many states have adopted public education strategies to increase awareness of the need to establish paternity for non-marital children. Others have pioneered projects to facilitate voluntary establishment of paternity. Still others have redesigned the process for handling contested paternity cases. Building on this knowledge base, Congress has recently enacted new legislation--as part of The Personal Responsibility and Work Opportunities Reconciliation Act of 1996--to require all states to encourage paternity establishment whenever possible, simplify the voluntary establishment process, and expedite the process for handling disputed cases.

Because the new legislation provides states with some options and leaves many unanswered legal and policy questions, implementing the federal law will be no easy matter. This Guide is designed to help parents, state officials, community groups, judges, legislators, and policy makers examine their options and design and implement a paternity establishment system which recognizes the realities, meets the requirements of federal law, and reflects wise policy choices. It draws on experience from states which have been leaders in designing modern systems. It is divided into several sections so that the user can easily identify the areas of his/her interest.

We begin by looking at demographics. In designing a good system, it is important to know who is having nonmarital children. The first chapter presents the latest data and suggests policy implications flowing from it. Next, the modern history of the paternity establishment system is examined. In the last two decades, that system has moved from requiring a formal, legal hearing in which a variety of due process concerns governed the proceedings--even when both parents wanted to establish paternity--to one in which willing parents can establish their child's paternity simply by signing an acknowledgment. By examining this history, we can comprehend just how dramatic the change has been and why the institutions (eg., courts and lawyers) which have historically been part of the process are concerned that the emerging process includes informed decision-making and a proper regard for due process. These constituencies are likely to push for retention of a judicially based, lawyer-driven system unless their concerns can be addressed.

At the same time, states will be under fiscal pressure to establish as many paternities as possible. In 1988, Congress established specific, numeric goals for states to meet in establishing paternity and fiscal sanctions for those who failed to meet them. In the new legislation, Congress has increased these goals. The next chapter describes the paternity establishment standards contained in the new law and what will happen if states are unable to achieve the desired level of improvement.

One way to balance due process concerns and the states' need to establish more paternities is to increase the number of individuals who voluntarily acknowledge their children. Today, too few citizens know the reasons for paternity establishment or how the system works. When they or a friend or family member become involved in a non-marital birth, they may not know how to be helpful. The next chapter suggests strategies for addressing this problem through better use of public information campaigns. Good public awareness campaigns--aimed at both non-marital parents and the community at-large--can foster a public climate in which parents want to do the right thing for their children, know how to do it, and are supported in this decision by their friends and families.

The next chapter deals with the specifics of designing and implementing a good voluntary acknowledgment system. There are a number of legal and policy decisions states need to make in setting up the process and these are discussed. The following chapter deals with designing an effective contested case proceeding. Both chapters draw heavily on existing state experience in designing programs that honor the parents' rights, pass judicial muster, and get the job done as expeditiously as possible.

Finally, there is an APPENDIX with model forms, statutes, and documents which could be adapted for use by states in developing their approach. Also contained in the Appendix is a summary of the paternity related provisions of H.R. 3734 and a cross reference chart to the new legislation and its implementation dates.

Armed with this information, a system can be designed which establishes paternity for far more children and, at the same time, respects the rights of their parents.