Fighting the Establishment: The Need for Procedural Reform of Our Paternity Laws

Abstract

Every state and the District of Columbia use voluntary acknowledgments of paternity. Created pursuant to federal law, the acknowledgment is signed by the purported biological parents and establishes paternity without requiring court involvement. Intended to be a “simple civil process” to establish paternity where the parents are unmarried, the acknowledgment is used by state governments to expedite child support litigation. But federal policy and state laws governing the acknowledgments do not sufficiently protect the interests of those men who have signed acknowledgments and who subsequently discover that they lack genetic ties to the children in question. A signatory who learns that he is not the child’s biological father and who wishes to challenge the validity of the acknowledgment must navigate a difficult process for relief. The very act of signing an acknowledgment may subsequently prevent him from offering any scientific evidence of the absence of a biological connection to the child. As a result, he may be obligated to pay child support for years on the basis of that erroneous paternity acknowledgment, and a parent-child relationship may be imposed even if it is not in the child’s best interests. Using the District of Columbia as a model to highlight the need for procedural reform, this Article examines the federal and D.C. legislation that created voluntary acknowledgments of paternity as well as the process for either rescinding or challenging their validity. The Article then analyzes the practical implications of these processes and discusses why the presumptive weight of the acknowledgment, a conclusive presumption of paternity, is problematic. In particular, the Article questions the need for a conclusive presumption of paternity, a difficult evidentiary burden for a challenger to overcome, and whether the conclusive presumption of paternity runs afoul of constitutional protections. Finally, the Article offers possible solutions to improve the establishment process.