Child Support Survival Guide: Disputing Paternity

Paternity is an issue when parents are unmarried to each other.

Paternity cases, increasing in frequency, are potentially at issue if the parents of a child were not married to each other when the child was conceived. Paternity is only infrequently an issue for a child born when the mother and named father were married to each other at the time of the child's conception, based on the presumed fidelity of married couples. This presumption, however, sometimes conflicts with the reality that married couples do not always remain faithful to one another.

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When the parties were married to each other at the time of conception and the custodial mother names her husband as the father, paternity is not normally questioned. A man who believes that a child is the result of his wife's extramarital affair must file an Answer disputing paternity and request blood tests in order to determine whether he is the biological father.

If the parents were not married to each other at the time a child was conceived, a paternity interview is commonly necessary. Paternity interviews ask the custodial parent personal and sensitive questions regarding the conception of the child. A custodial mother who wants to avoid this interview should carefully complete and return all of the paternity forms given to her by the agency.

There have been instances in which a child support order was entered against a father who, at the time of the order, believed he was the true biological father. He later learned that the mother had an affair and he may not be the biological father of the child for whom he has been paying support. When this situation occurs, the legal father must choose whether to attempt to change the court order. This usually requires that the man hire an attorney, request blood tests, and explain to the court why paternity is being disputed.

If blood tests confirm that he is not the biological father, the court should be able to set aside the judgment of paternity and the child support order, particularly if the man had been intentionally misled.

Even if he is relieved of duty to provide child support, a man who was once the legal father of a child might not be able to recover the support he already paid. Some states however, limit the time for a legal father to initiate an action to reverse a paternity judgment. Because states have different time restrictions and rules for resolving paternity issues, noncustodial parents who intend to dispute paternity after the fact should contact an attorney for legal advice.

An occasional court has denied a request to set aside a judgment of paternity and the accompanying child support order on the grounds that the adjudicated father has developed and maintained a long-term relationship with the child, and overturning the judgment is not in the best interests of the child. The whole subject has provoked bitter legal controversy. Its final resolution is not clear.

Repayment of years of child support to a wrongly named father is usually an impossible task for the custodial mother. A judge faced with this situation might simply terminate ongoing child support payments and decline to order repayment of support already paid to the mother. A wrongly named father who has paid child support under a court order might file a civil lawsuit against the mother for repayment of the support payments. The advice of an attorney is usually essential.

The Welfare Reform Act and some state laws no longer allow the custodial parent to name the noncustodial parent on the birth certificate without an acknowledgment of paternity by the noncustodial parent. Before a man becomes liable to pay child support his paternity must be judicially established.

Many parents falsely believe that listing the father's name on their child's birth certificate establishes the paternity of that claimed father. Naming the noncustodial father's name on the birth certificate does not legally establish paternity. As a result of the many court challenges brought by defendants who were wrongly named on the birth certificate, the Welfare Reform Act requires all states to enact programs with hospitals in which a noncustodial father can sign a voluntary declaration adjudicating his paternity at the time of the child's birth. (In California, this program is called the Paternity Opportunity Program (POP).) This program should assist states in meeting the federal mandate that all state agencies establish paternity on all children born out of wedlock. If the noncustodial father declines to sign a voluntary acknowledgment, the custodial parent is not to be allowed to list the alleged father's name on the child's birth certificate. This paternity declaration form is also available through many prenatal clinics.

Noncustodial fathers are allowed 60 days to rescind a voluntary paternity declaration if a mistake has been made, and an extra two years if fraud, a material error, or duress is established. A paternity declaration signed by a minor-father will not become a paternity judgment until 60 days after he has emancipated.

Establishing a child's paternity has a benefit to the child that is independent of the ongoing financial support that a judgment of paternity produces. A legal judgment of paternity can entitle a child to receive a portion of the father's estate, titles, or inheritance. The adjudication of paternity can help protect a child from the efforts of members of the father's family to exclude the child from a portion of the father's inheritance on the ground that the child was born out of wedlock and has not been acknowledged by the father.

The child of a deceased father has rights to survivor's benefits and Social Security benefits paid by the federal and state governments. These potential benefits for a child that can result from an adjudication of paternity are considered so important that adjudication of paternity has been made a mandatory function of CSE agencies.

Several years ago, our agency handled a case in which an unwed custodial mother on welfare had four children by the same noncustodial father. When questioned by CSE staff over a five-year period, this parent denied knowing where the noncustodial father lived or worked. The mother provided enough data to our agency to prevent her from being penalized for withholding information, but she did not give us enough to enable the agency to pursue the noncustodial parent to adjudicate the paternity of their four children. Our staff did not believe this mother was being truthful. Even after we explained the need to protect the children's rights by adjudicating paternity, the mother continued to claim that she had no knowledge of the father's whereabouts. She claimed that each of the four conceptions of her children by this man were the result of casual and unplanned sex with him.

About one year after our last conversation with the mother we learned that the noncustodial parent had been killed. The custodial mother went to the Social Security office to apply for death benefits for her four children. Because there was no court order adjudicating paternity and no other documentation substantiating the mother's claim that the children had been fathered by the deceased man, the custodial mother's claim for benefits was denied.

When the custodial mother demanded that our agency contact the Social Security Administration to substantiate her claim, we reminded her about our interviews in which we had advised her to adjudicate the paternity of her children. The mother realized that by inaction and cover-up she had caused her children to face a lifetime of poverty, and had deprived them of their claims to their father's inheritance and Social Security death benefits. All of this was the result of a misguided attempt to protect the noncustodial father from paying child support.

We hope this discussion will give you a better idea of the importance of paternity adjudication in protecting potential financial resources.

Blood tests

If a man named as a father of a child questions whether he is the biological father, he should give serious consideration to paternity blood testing. The average cost ranges from $200 to $400 for a test that compares genetic markers in the mother's, the child's, and the alleged father's blood. If the custodial parent is currently receiving AFDC, the tests can usually be without a down payment of fees. Payment will not usually be requested unless the results establish paternity of the named father. If the results of the testing establish that the named father is not the biological father, he is usually relieved of any obligation to pay the costs of the blood testing and that man is excluded as the biological father on AFDC cases. Blood tests are paid for by the noncustodial parent only when the test proves his paternity.

In paternity cases involving multiple sexual partners, in order to establish which person on the list of a mother's sexual partners is the true biological father of a child, the CSE agency usually begins its search with the man deemed to be the most likely possibility. Paternity is established by process of elimination and the CSE agency commonly waives payment of blood test costs until the father has been identified by the testing.

The level of certainty of the identification can usually be stated as such a high percentage that virtually no other man in the world would be biologically capable of being the father. Thus, it is readily accepted that most courtroom challenges to the process are unsuccessful.

Blood testing was challenged in a case recently handled by our agency, which identified a father for whom we had searched for 17 years. When this man was located he laughed about the length of time it took to find and identify him and remarked about how fortunate he was that he would only have to pay child support for six months before the child turned 18.

When he learned that he would have to pay back child support to reimburse the government for AFDC the child had received, he decided to contest. He hired an attorney and submitted to genetic blood tests, which identified him as the father. He then challenged the method of testing and lost that fight, too. The father's next argument was that he shouldn't have to pay welfare reimbursement costs, because the custodial mother had concealed the child from him; he lost that argument also. After five years contesting in court, when the child was 22, he was ordered to pay $20,000 for reimbursement of welfare costs paid by the taxpayers to support the child.

By waging a legal war over a biological issue that can be readily determined, the man probably doubled the financial cost.

Intact families

In an intact family the alleged father, mother, and children reside together. Intact family cases are usually referred to the CSE agency by the welfare department. When the family applies for either cash or medical assistance, and paternity has not been determined, a referral is made to the CSE agency in order to adjudicate paternity. The referral is sent in order to establish paternity, because the children are receiving AFDC as part of a family unit, or because they are receiving Medicaid.

The agency initiates these cases in much the same way it initiates all others: The father is served with a complaint naming him as the father of the children and a summons requiring him to answer the complaint or resolve the legal issue with the agency.

The father can acknowledge paternity by meeting with agency staff and signing a stipulation that adjudicates him as the legal father. Because the parents of the children live together, a current support order is unnecessary.

If the father in an intact family receiving welfare does not voluntarily sign a stipulated paternity adjudication and does not file an Answer with the court, a default judgment of paternity will be entered against him. In an intact family case, a default judgment can produce the same result as a voluntary stipulation-paternity is adjudicated. Because paternity is not disputed and child support is not at issue, a paternity adjudication in an intact family is the only situation in which a default judgment usually does not have a financial impact on the noncustodial parent. After paternity has been adjudicated, an intact family case is usually closed by the CSE agency.

In any situation in which the named noncustodial parent is unsure of his paternity of the child or child support is an issue, the noncustodial parent makes a serious mistake by allowing a default judgment to be entered against him.

Default judgments

A default judgment is a judgment that is entered without the participation of the defaulting party, which means the defendant has failed to properly answer the complaint either by filing an Answer with the court or by voluntarily stipulating to a child support amount. The usual reason for a default judgment is that the noncustodial parent fails to appreciate the importance of filing an Answer and simply ignores the complaint. Another common cause is that the noncustodial parent mails his or her Answer to the CSE agency without filing it properly with the clerk of the court.

We have difficulty understanding a parent who does not want to participate in the adjudication of paternity and the setting of a child support order. Even the father who acknowledges paternity and the duty to pay support should be interested in ensuring that the court order be for the correc amount. In order for the agency to correctly set child support, the agency must have accurate financial information about the assets, income, and expenses of the noncustodial parent. If the agency is forced to act on information gathered without the participation of the noncustodial parent, the order may be set in an inappropriate amount.

Many noncustodial fathers who have been served with a summons and complaint or petition for child support telephone the agency to deny paternity of the child. There is no such thing as a verbal Answer to a complaint for child support. If a written Answer is not correctly filed with the court, there is no Answer in the case, and a default judgment can be taken against the defendant. Ignoring a civil action for paternity and child support is a very serious mistake. Situations like the following commonly occur:

An AFDC custodial mother names several men as possible fathers. The agency selects the most likely candidate based on the mother's story and proceeds against that man. (The agency sometimes elects to determine the possible paternity of the man who is the easiest of the named possible fathers to serve with a summons and complaint.)

The man who is served first with a summons and complaint may fail to file an answer, although he verbally claims he is not the father and even writes a letter to the agency in which he denies paternity. Ultimately, he fails to properly file an answer. Hence, a default judgment is obtained against him.

The judgment adjudicates that he is the father of the child and orders him to pay the government $8,000 in welfare reimbursement, pay current child support of $500 per month, and obtain health insurance for the child. A wage assignment and a health insurance order is served on the man's employer. The employer complies with the orders by deducting the maximum amount allowed (which can be up to 50 percent of the man's take-home pay). The employer will also deduct from his wages the cost of adding the child to the man's health insurance plan.

The man usually phones the agency in anger, claiming that he allowed the default judgment because he didn't know or understand how to prevent it. He often claims that he believed that his telephone call or letter to the agency constituted a proper response. Sometimes he admits that he felt that ignoring the support action would cause it to disappear. He continues to be adamant in his belief that he is not the father of the child.

Because the man was given proper notice of the pending civil suit against him, and because he failed to answer it in the manner required by law, the agency can take the position that the man has agreed that the claims made are accurate, and he has decided to allow the courts to set a support order for him without his participation.

This man now finds himself in a terrible dilemma. He thinks of hiring an attorney, but wonders if he can afford this course of action. On the other hand, he faces the prospect that he will pay child support for a child who is not biologically his. The cost of a child support order is often substantial-a $500-per-month child support order that is effective for 18 years becomes a $108,000 judgment. Unless he is capable of representing himself, the process of maneuvering his case through the legal system is formidable. At the very minimum, this man is usually forced to incur substantial attorney fees to reverse the judgment that resulted from his inattention or inaction.

If this man prevails in the paternity contest, he regains any support money that had been collected under the default judgment, as long as the money was paid to a governmental agency to reimburse welfare costs. But if his support money was paid to a nonaid mother who has spent it, he might be forced to sue the mother to recoup his funds. In the meantime, he has been living on 50 percent of his income for the many months it has taken to overturn the judgment. He probably owes his creditors for bills that were unpaid during this period of reduced income, and his attorney for the fees incurred in representing him.

The CSE agency has expended large sums of the taxpayers' money in obtaining and enforcing a default judgment that is ultimately set aside. The agency still must determine the true biological father of this child, and its process of paternity establishment must begin all over again. This situation could have been avoided had the man responded properly to the civil suit against him.

Even though the maternity of a noncustodial mother is not difficult to establish, a noncustodial mother also errs in allowing a default judgment to be entered against her. She should want to be certain that the amount of support set in the court order is correct. The noncustodial mother who is served with a summons and complaint or petition for child support should give serious consideration to contacting the agency that filed the complaint. In order for the agency to produce a proper child support order, it must know the true income of the noncustodial mother, must know of the mother's other child support obligations or whether she supports other children in her home, and must know what percentage of time to credit the mother for visitation with the child. These facts can reduce the level of the support order.

Because failing to respond to a civil action for child support can cause severe financial consequences, we believe that a noncustodial parent served with such an action should almost never allow a default judgment to be entered against him or her. A parent who wants to dispute the civil action should file a written Answer or response in the court that issued the summons. If the case is only a dispute over the level of support, the noncustodial parent should seriously consider contacting the CSE agency to determine whether it can be resolved without a courtroom proceeding. An out-of-court resolution can often save the noncustodial parent hours of wasted time and can produce a proper stipulated order.

This does not mean, however, that the noncustodial parent should always agree to the amount of support the agency demands. The noncustodial parent who believes the agency has incorrectly calculated the amount or is improperly failing to credit the noncustodial parent for legally recognized hardship reductions can always challenge the level of support in court. A parent may sign a stipulation of paternity and agree with the agency to resolve disputed issues of support in a contested court hearing.

Soldiers and Sailors Civil Relief Act

In 1940 the United States Congress enacted the Soldiers and Sailors Civil Relief Act to enable military personnel on active duty in the armed services to respond to civil actions initiated against them while on active duty.

The process of serving a summons and complaint can often be delayed by difficulties in obtaining a correct address for military personnel on active duty in the armed services. If the noncustodial parent resides in the civilian community, the summons and complaint can be served by certified mail. If the noncustodial parent lives on a military base, the CSE agency can send the summons and complaint to the Office of the Judge Advocate General of that military installation, with a request that the Staff Judge Advocate serve the summons and complaint on the noncustodial parent.

The CSE agency should be able to identify a case in which the noncustodial parent is on active duty in the armed services as a Soldiers and Sailors Relief Act case from the time the case is initiated. A defendant protected by the Soldiers and Sailors Civil Relief Act is allowed the same period of time-usually 30 days-to file an Answer or response to the complaint. If a defendant who is a member of the armed services does not file an Answer for paternity or child support, the agency may not obtain a default judgment against him or her. Instead, the agency must request that the court appoint an attorney to represent the absent defendant. The attorney is responsible for contacting the defendant to advise him or her of the action for paternity or support and inform the military member that he or she has been appointed as his or her legal representative.

If the noncustodial parent requests a hearing or paternity blood testing, the attorney can make these arrangements. However, if the noncustodial parent receives but does not respond to letters from the appointed attorney, the attorney may request that the court relieve him or her as counsel for the defendant. Only after the defendant has been given an opportunity to contest the action through appointed counsel, and the defendant has failed to do so, may the agency proceed to obtain a default judgment.

If the agency erroneously obtains a default judgment against an active member of the armed services, it should be set aside, and the procedure required by the act should be initiated.

Additional information about the Soldiers and Sailors Civil Relief Act can be obtained from the Office of Child Support Enforcement (OCSE), a federal agency (see the United States Central Registries page for contact information). The OCSE can provide a free handbook on child support enforcement affecting persons in the United States armed services. Military personnel already on active duty with the armed services can consult the military legal office (JAG office) on the base where they are stationed. Military attorneys are also usually familiar with the act and can provide free legal assistance to military personnel and their dependents.

Excerpted from Child Support Survival Guide: How to Get Results Through Child Support Enforcement Agencies. Copyright 1997 by Bonnie M. White and L. Douglas Pipes. Published by arrangement with Career Press.
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