|
|
[an error occurred while processing this directive]
OCSE Detailed Information for Paternity Establishment Provisions - OBRA '93
DETAILED INFORMATION REGARDING PATERNITY ESTABLISHMENT PROVISIONS
OF 59 FR 66204 PUBLISHED IN THE FEDERAL REGISTER ON 12/23/94
Paternity Provisions of the Omnibus Budget Reconciliation Act of
1993
183 According to data from the National Center for Health
Statistics, about 29.5 percent of births in the United
States were to unmarried mothers in 1991 (the latest data
available). That amounts to well over a million births to
unmarried women in the year.
183 The high level of out-of-wedlock births has social and
economic consequences.
183 Many of the mothers and children may end up on public
assistance, and many of these families live in poverty.
183 Improved paternity establishment is one way of addressing
some of the issues resulting from the high rate of births to
unmarried women.
183 Paternity establishment has social benefits. It may result
in access to financial benefits for the child, such as child
support, Social Security benefits, pension benefits,
veterans' benefits, and possible rights of inheritance.
183 In addition, paternity establishment may:
- Give children social and psychological advantages and a
sense of family heritage.
- Be a first step in creating a psychological and social
bond between a father and child.
- Provide important medical history information.
183 The numbers of paternities established each year by the
Child Support Enforcement program has increased
substantially (from about 270,000 in Fiscal Year (FY) 1987
to over 553,000 in FY 1993; an increase of over 100 percent
in just six years).
183 Despite this improvement, a sizable number of children born
to unmarried mothers lack paternity establishment.
Currently, as reported by State agencies, paternity is only
established for about one-sixth of the children who need it
per year.
183 In those cases where paternity is established, the process
is often lengthy and even adversarial in nature.
183 The Omnibus Budget Reconciliation Act of 1993 (Pub. L.
103-66), signed by the President on August 10, 1993,
contains provisions designed to increase both the number of
paternities established for children born out of wedlock and
the timeliness within which paternity establishment is
accomplished.
183 The provisions are based on State experience and
recommendations of the U.S. Commission on Interstate Child
Support.
183 States must meet these new paternity requirements as a
condition of IV-D State plan approval. Each State's title
IV-D plan must be approved for the State to receive Federal
financial participation in the operation of its Child
Support Enforcement program.
183 Many provisions of the Omnibus Budget Reconciliation Act of
1993 require States to have laws requiring the use of the
newly-mandated paternity procedures. However, States may
implement provisions using regulation, procedure, or court
rule, if such regulation, procedure, or rule has the same
force and effect as law.
Effective Date of Statue
183 The statutory effective date is linked to State legislative
sessions.
183 The Federal law provides that the statutory requirements are
effective on the later of:
- October 1, 1993, or
- Upon enactment by the State legislature of all required
laws necessary to conform to the requirements.
183 However, in no event shall the statutory requirements be
effective later than the first day of the first calendar
quarter beginning after the close of the first regular
session of the State legislature beginning after August 10,
1993.
183 In the case of a State that has a two-year legislative
session, each year of such session shall be deemed to be a
separate regular session of the State legislature.
183 Requirements in the final regulation are effective on:
- December 23, 1994, or
- The statutory effective date (as described above), if
later.
183 In other words, if a State's statutory effective date occurs
after publication of the final regulations, the regulations
do not apply to that State until the statutory effective
date.
Establish a Simple Civil Process for Voluntarily Acknowledging
Paternity
183 OBRA '93 compels States to have laws requiring procedures
for a simple civil process for voluntarily acknowledging
paternity.
183 Under this process, the State must provide that the rights
and responsibilities of acknowledging paternity are
explained.
- The explanation should describe the rights and
responsibilities, including the duty to support the
child financially, that each party will assume as a
result of signing the acknowledgment.
- It should also describe rights that each party may be
giving up by signing the acknowledgment (e.g., right to
genetic testing).
- These rights and responsibilities will vary by State,
depending on State law.
- For out-of-hospital acknowledgments, as long as the
explanation meets State due process requirements, it
may be verbal or in writing.
- However, OCSE recommends that this disclosure of rights
be provided in a written format, preferably on the
acknowledgment form itself, that is clear and easily
understood.
183 The State must also ensure that due process safeguards are
afforded.
- The State must meet any due process requirements
necessary under State law and court rulings.
- Consistent with past policy, OCSE is not mandating
detailed Federal due process requirements.
183 Most States already had some type of voluntary
acknowledgment procedures in place prior to the enactment of
OBRA '93, but this new requirement should ensure that these
procedures are simple and regularly used.
183 Studies and State experience have shown that many men will
voluntarily acknowledge paternity if given the chance.
183 When paternity is established voluntarily with the
cooperation of both parents, the cost, conflict and delays
of contested cases can be avoided.
Availability
183 The voluntary acknowledgment process must include
hospital-based programs, which I will describe in detail
later.
183 Each State must have a process for voluntarily acknowledging
paternity outside of hospitals as well.
183 The voluntary acknowledgment process should be available at
any time to fathers who want to voluntarily acknowledge
paternity.
IV-D Activity
183 When appropriate in a IV-D case needing paternity
establishment, the IV-D agency must:
- Provide the alleged father the opportunity to
voluntarily acknowledge paternity.
- Attempt to establish paternity by legal process under
State law.
183 When offering a man the opportunity to voluntarily
acknowledge paternity:
- IV-D staff may contact the alleged father by telephone,
written notice, or in person as appropriate under the
circumstances and State law.
- Written notice may be given by mail, personal service,
or other means; however it must be addressed
specifically to the individual alleged father.
- OCSE strongly encourages the language in written
notices to be "reader-friendly", i.e., clear and easy
to understand.
- The IV-D agency should advise the man that the mother
has named him as the father of the child, and describe
the procedures for voluntarily acknowledging paternity.
- The IV-D agency may offer the alleged father the
opportunity to voluntarily acknowledge either before or
after initiating legal action to establish paternity.
- The IV-D agency must document in the case record when
and how the alleged father is sent or given notice of
the paternity action and the opportunity to voluntarily
acknowledge.
- Under some State laws, it may be inappropriate to
pursue a voluntary acknowledgment, for example, in
cases where the alleged father is a minor or lacks the
requisite mental capacity. It would be inappropriate
to seek a voluntary acknowledgment in a case where an
acknowledgment has been previously obtained.
- If a IV-D agency determines that it would not be
appropriate to offer the alleged father an opportunity
to voluntarily acknowledge paternity, it must: (1)
document in the case record the specific reason it is
inappropriate to seek an acknowledgment, and (2)
attempt to establish paternity by legal process
established under State law.
- Ideally, IV-D agencies will allow fathers multiple
opportunities to voluntarily acknowledge at any stage
in the process.
183 The IV-D agency is not required to take additional action to
establish paternity if, under State law, a voluntary
acknowledgment itself establishes paternity.
Establish Hospital Based Paternity Programs
183 OBRA '93 requires that State law provide for a
hospital-based program for the voluntary acknowledgment of
paternity during the period immediately preceding or
following the birth of a child.
183 Some States already had or were developing hospital-based
programs prior to the enactment of OBRA '93 (although often
on a less than statewide basis).
183 Experience of States has indicated that a father of a child
born to an unmarried mother is more likely to be present and
to admit paternity during the time surrounding birth than
later on.
183 Early paternity establishment reduces location difficulties
and administrative costs which can occur if paternity
establishment is delayed.
183 Typically, in an organized hospital-based program, trained
hospital employees provide information about paternity
establishment to the parents, inform them of their rights,
and give them the opportunity to voluntarily acknowledge
paternity.
183 Such programs have been quite effective in obtaining
voluntary paternity acknowledgments; some hospital-based
programs have successfully obtained voluntary
acknowledgments for about 40 percent of their births.
183 Some States with programs have also documented savings in
administrative costs that would otherwise typically be
incurred in paternity establishment.
183 Federal regulatory requirements regarding hospital-based
programs are somewhat more extensive than general voluntary
acknowledgment requirements.
- In many parts of the country hospital-based programs
did not exist or were not well-established prior to the
enactment of OBRA '93. Federal requirements should
help to ensure that programs are properly implemented.
- In addition, the special circumstances of a hospital
environment warrant detailed Federal oversight. For
hospital staff, providing paternity acknowledgment
services is an ancillary and potentially unfamiliar
activity. Furthermore, during the hours following
birth, the mother may be in physical pain, mentally
exhausted or preoccupied, and inundated with
information regarding the health and care of her
newborn child.
State Law, Regulation, or Procedure
183 All States must provide for a hospital-based program by law,
regulation, and/or binding procedures.
183 State law, regulation, or binding procedure must compel all
public and private birthing hospitals to participate in
hospital-based programs.
Definition of Birthing Hospitals
183 A birthing hospital is a hospital that has an obstetric care
unit or that provides obstetric services, or a birthing
center associated with a hospital.
183 A State is not required to implement the program in
hospitals, such as geriatric hospitals, that do not
routinely provide maternity services.
183 A birthing center is a facility outside a hospital that
provides maternity services.
- Generally, such centers use midwives and provide
services for women who do not expect complications
during birth.
- Frequently, a hospital will provide back-up services to
a birthing center if complications develop.
- Since in some localities, a significant number of
births occur in birthing centers, voluntary
acknowledgment programs should be established in such
centers that are associated with hospitals.
Recipients of Service
183 Each hospital-based program must provide services to
unmarried mothers and alleged fathers.
183 The parents must be given the chance to acknowledge
paternity regardless of the child's public assistance status
or whether an application has been filed for IV-D child
support services.
- In many cases, a mother will not have applied for IV-D
services or public assistance prior to her child's
birth.
- However, if the case eventually enters the IV-D
program, child support establishment and enforcement
will be expedited and administrative costs avoided if
the father has previously acknowledged paternity.
183 A program is not required to provide services to married
mothers.
- In most cases where a child is born to a married
mother, paternity is not at issue; the husband is
presumed to be the father of the child.
- In some cases the husband may not actually be the
biological father and paternity may be an issue. A
hospital-based program need not intervene in such
complex cases.
183 In addition, a hospital-based program need not provide
services related to acknowledging paternity in cases where
the mother or alleged father is a minor or a legal action
(e.g., adoption) is already pending, if the provision of
such services is precluded by State law.
Elements of A Hospital-Based Program
183 The final Federal regulation lists the services and
functions that a hospital-based program must, at a minimum,
provide during the period immediately preceding or following
the birth of a child to an unmarried woman in the hospital.
- These services are based on the experience provided by
States that had already implemented programs prior to
the enactment of OBRA '93.
- The State must ensure, in cooperation with hospitals,
that the program performs all of these functions.
183 First, a hospital-based program provides to the mother and,
if present at the hospital, the alleged father:
(1) Written materials about paternity establishment (i.e.,
brochures, pamphlets, or similar materials that
describe the benefits of paternity establishment and
the consequences of a voluntary acknowledgment),
(2) Forms necessary to voluntarily acknowledge paternity,
(3) A written description of the rights and
responsibilities of acknowledging paternity (i.e. the
rights and responsibilities each party concedes and
assumes, including the duty to support the child
financially, as a result of acknowledging paternity;
these rights and responsibilities will vary by State,
depending on State law).
(4) The opportunity to speak with staff, either by
telephone or in person, who are trained to clarify
information and answer questions about paternity
establishment. The staff could either be hospital,
IV-D, or other agency staff. Most existing programs
use hospital staff. To meet this requirement, a
program must have staff in the hospital to talk with
parents in person and/or provide written materials with
a telephone number for IV-D or other State agency
personnel that the parties may contact.
183 Second, a hospital-based program provides the unmarried
mother and alleged father, if he is present, the opportunity
to voluntarily acknowledge paternity in the hospital.
- Each program is encouraged to make staff available,
including during evening and weekend visiting hours, to
ensure that all unmarried mothers and alleged fathers
present at the hospital are afforded this opportunity.
- If paternity acknowledgment forms must be notarized
under State law or procedure, notaries (designated
hospital staff in some ongoing programs) should be
available to notarize acknowledgments in the hospital.
183 Third, a hospital-based program affords due process
safeguards, as required by State law and procedure.
- This may include staff training to ensure that the
voluntary aspect is promoted and maintained; alleged
fathers should not be pressured into signing
acknowledgments.
- If either the mother or the man does not agree that the
man is the father, the hospital-based program need not
intervene.
183 Finally, a hospital-based program forwards completed
acknowledgments or copies to the agency designated by the
State. This will ensure that the IV-D agency has access to
and can use the acknowledgments in cases that become IV-D
cases.
State Responsibilities
183 To accommodate divergent State practices, Federal regulation
requires that the State as a whole, rather than the IV-D
agency in particular, be responsible for ensuring that the
hospital-based requirements are met.
- In some States with an existing hospital-based program,
the State health department, not the IV-D agency, has
primary responsibility or shares responsibility for the
program. In other States, the IV-D agency has primary
responsibility.
- The Federal regulation is designed to avoid
interference with the operation of existing,
successfully-functioning programs.
- Therefore, the regulation places responsibility on "the
State" rather than "the IV-D agency".
183 First, the regulation requires the State to establish, in
cooperation with hospitals, a hospital-based program in
every public and private birthing hospital.
- States must have law, procedure, or binding regulation
in place on October 1, 1993 or, if State legislation is
needed, no later than the start of the first calendar
quarter after the close of the State's first
legislative session beginning after August 10, 1993.
- The regulation recognizes that States need some time to
fully implement these programs.
- The programs must be operational in birthing hospitals
statewide no later than January 1, 1995 (unless Federal
law governing the effective date gives a State
additional time).
183 Second, the State must provide to all public and private
birthing hospitals in the State written materials about
paternity establishment, forms necessary to voluntarily
acknowledge paternity, and copies of a written description
of the rights and responsibilities of acknowledging
paternity.
- The State is responsible for ensuring that the birthing
hospitals have a sufficient supply of these items to
distribute to unmarried mothers and alleged fathers
upon birth of a child.
- The written materials about paternity establishment
could be brochures, pamphlets, or similar materials
that describe the benefits of paternity establishment
and the consequences of a voluntary acknowledgment.
- The forms necessary to voluntarily acknowledge
paternity may be the same forms used to voluntarily
acknowledge paternity outside of the hospital.
- The description of rights and responsibilities may be a
separate document or included on the other written
materials or forms. It should describe rights that
each party is giving-up by signing the acknowledgment.
It should also describe the rights and
responsibilities, including the duty to support the
child financially, that each party will assume as a
result of signing the acknowledgment. These rights and
responsibilities will vary by State, depending on State
law.
183 Third, the State must require that a voluntary
acknowledgment obtained through a hospital-based program be
signed by both parents, and that the parents' signatures be
authenticated by a notary or witness(es).
- In a hospital, the process should be truly voluntary
and an acknowledgment should only be made if both
parents agree about the man's paternity.
- Hospitals should not have to mediate disputes or pursue
cases where the parties disagree about the man's
paternity.
183 Fourth, the State must provide training, guidance, and
written instructions regarding the voluntary acknowledgement
of paternity as necessary to operate the hospital-based
program.
- States could use training sessions, written
instructions or handbooks, audio or video tapes,
technical assistance provided via telephone, or other
means to meet this requirement.
- Regardless of the method, the State should ensure that
staff, as they assume the responsibility, are
instructed on the operations of the program.
183 Fifth, the State must assess each birthing hospital's
program on at least an annual basis.
- The annual assessment requirement does not mandate a
formal investigation or audit.
- Rather, it simply requires States to examine data
which, in most States, should be available without the
need for a special data collection.
- At a minimum, the annual assessment must examine the
number of acknowledgments received from each hospital.
If the State makes payments to the birthing hospitals
for each voluntary acknowledgment obtained, it should
already have access to data regarding the number of
acknowledgments per hospital.
- OCSE encourages the State to also consider the number
of acknowledgments as a percentage of the number of
out-of-wedlock births during the same period at each
hospital, if data regarding births are available. This
percentage will provide a more accurate measure of a
hospital-based program's operation. Data regarding the
number of out-of-wedlock births per hospital are
already collected by vital statistics agencies in some
States.
- If the number of acknowledgments received from a
hospital seems unusually low or has declined
significantly from the number received in the past, the
State should contact the hospital to determine whether
training or other assistance is needed.
- The intent of this requirement is not to establish
performance quotas or to create pressure for hospitals
to obtain acknowledgments, but rather to ensure that
hospitals are actually operating programs.
- Staff turnover among hospital personnel or a depleted
supply of forms or materials may disrupt or even
suspend a hospital-based program's operation. The
annual assessment will allow the State to detect
whether such problems occur, and to take appropriate
action (staff training, supplying new forms) to prevent
them.
Recording Acknowledgments
183 Finally, the State must designate an entity to which
hospital-based programs must forward completed voluntary
acknowledgments or copies.
- This entity may be any entity designated by the
State--a local court or agency, the vital statistics
agency, the IV-D agency, or some other entity. A State
can have more than one designated entity.
183 Under State procedures, this entity must be responsible for
promptly recording identifying information about the
acknowledgments with a statewide database.
- The designated entity may either record the identifying
information or forward the acknowledgments or
identifying information to another entity responsible
for recording the identifying information.
- The State must have one centralized statewide database
that contains identifying information about
acknowledgments. The identifying information must be
maintained in one automated database (if automated) or
one central location (if not automated). The database
may be established and maintained by the State IV-D
agency, some other State agency, or a contractor under
agreement with a State agency.
- OCSE encourages States to expand their statewide
database to include identifying information on
voluntary acknowledgments obtained from sources other
than hospital-based programs.
183 These provisions are designed to ensure that the IV-D agency
has a source for determining, in a IV-D case needing
paternity establishment, whether or not an acknowledgment
was obtained outside the IV-D system (e.g., at the
hospital). The IV-D agency should use such
previously-obtained acknowledgments as the basis for
establishing and enforcing a child support order.
IV-D Activity
183 In IV-D cases needing paternity establishment, the IV-D
agency must determine if identifying information about a
voluntary acknowledgment has been recorded in the statewide
database.
- OCSE encourages the IV-D agency to first ask the
custodial parent whether the alleged father voluntarily
acknowledged paternity at the hospital or at some other
time.
- However, unless the custodial parent is able to provide
a copy of the acknowledgment, the IV-D agency must
determine if an acknowledgment has been recorded with
the statewide database. Some custodial parents may be
unable or unwilling to tell the IV-D agency about a
previously-obtained voluntary acknowledgment.
- A State must have some means, either automated or
manual, for checking the records of the statewide
database to determine if identifying information about
an acknowledgment has been recorded with the statewide
database.
- Regardless of whether the State uses an automated or
manual process, the IV-D agency must have access to
up-to-date information.
- A IV-D agency does not need to determine if a voluntary
acknowledgment has been recorded with the statewide
database in a case where the IV-D agency:
(1) is already aware that an acknowledgment has been
completed and has documentation necessary to seek
a support order on the basis of that
acknowledgment;
(2) knows that it is unlikely that an acknowledgment
is recorded with the statewide database (e.g., the
child's birth certificate indicates that the child
was born in another State); or
(3) does not have sufficient information to make a
determination.
183 Under State procedures, the IV-D agency must have timely
access to whatever identifying information and documentation
it needs, in a IV-D case, to determine if an acknowledgment
has been recorded in the statewide database and to seek a
support order on the basis of a recorded acknowledgment.
- This identifying information must include sufficient
information to enable the IV-D agency to determine if
an acknowledgment recorded in the statewide database
matches a IV-D case needing paternity
establishment--for example, names and social security
numbers.
- Concerning documentation, in some States, the IV-D
agency may need the original acknowledgment or an
authenticated copy in order to establish a support
order on the basis of the recorded acknowledgment. If
this is the case, the State may need procedures under
which some entity maintains acknowledgments and gives
the IV-D agency access to acknowledgments or copies.
Identifying information in the statewide database
should indicate the location where an acknowledgment or
copy is maintained, if such information is necessary.
FFP Availability for Hospital-Based Programs
183 Federal financial participation (FFP) is available for
certain costs associated with hospital-based programs.
These include:
(1) The IV-D agency's costs incurred under agreements, if
necessary, between the IV-D agency and birthing
hospitals or other State agencies, including the costs
of establishing such agreements.
(2) IV-D staff that work on developing and implementing the
hospital-based program (e.g., training, drafting
materials, meeting with hospital officials).
(3) Payments of up to $20 to birthing hospitals and other
entities that provide prenatal or birthing services for
each voluntary acknowledgment obtained pursuant to an
agreement with the IV-D agency. (States are not
required to provide such payments).
(4) Developing and providing to birthing hospitals and
other entities that provide prenatal or birthing
services written and audiovisual materials about
paternity establishment and forms necessary to
voluntarily acknowledge paternity.
(5) Reasonable and essential short-term training regarding
voluntary acknowledgment of paternity associated with a
State's hospital-based program. The training may be
provided on a periodic basis so that new staff will
also receive short-term training.
183 To encourage expansion of early paternity establishment
programs beyond hospitals, FFP is available for developing
and providing materials and forms, not only to hospitals,
but to other entities that provide prenatal or birthing
services. Similarly, FFP is available for payments of $20
or less, not only to birthing hospitals, but to other
entities that provide prenatal or birthing services and
obtain an acknowledgment pursuant to a written agreement
with the IV-D agency.
183 FFP is not available for costs of the entity designated to
receive completed voluntary acknowledgments of paternity or
the statewide database of identifying information, unless
the IV-D agency is the designated entity or responsible for
maintaining the statewide database.
183 However, FFP is available for the IV-D agencies costs:
(1) Of determining whether a voluntary acknowledgment has
been recorded with the statewide database.
(2) Of obtaining copies of documents such as voluntary
acknowledgments or birth certificates.
(3) Incurred under an agreement, including the IV-D
agency's costs of establishing an agreement, governing
the routine exchange of information or documents,
between the IV-D agency and another entity.
183 Except as specifically allowed, other costs of hospitals,
health care providers, vital statistics agencies, or public
educational programs may not be financed through the IV-D
program.
Voluntary Acknowledgment of Paternity
183 OBRA '93 requires each State to have laws and procedures
under which the voluntary acknowledgment of paternity
creates a rebuttable or, at the option of the State,
conclusive presumption of paternity, and under which such
voluntary acknowledgment is admissible as evidence of
paternity.
183 Prior to the enactment of OBRA '93, the legal effect of a
voluntary acknowledgment varied from State-to-State.
- Under the Uniform Parentage Act, which has been adopted
by 18 States, an acknowledgment filed with the
appropriate court or agency creates a presumption of
paternity.
- In a few States, a voluntary acknowledgment has the
same force and effect as a paternity judgment.
- In other States, however, an acknowledgment may simply
have been considered some evidence of paternity.
183 This provision of OBRA '93 should ensure that voluntary
acknowledgments are meaningful and used to expedite
paternity establishment in every State.
183 A presumption of paternity should expedite paternity
resolution.
183 A rebuttable presumption is a rule of evidence that shifts
the burden of proof to the presumed father to disprove
paternity, if he chooses to contest paternity.
183 A conclusive presumption has the same legal effect as a
judgment for paternity. Even if a State adopts a conclusive
presumption, the State may still allow certain challenges,
just as judgments can be challenged and potentially
overturned (e.g., in cases where there is evidence that the
acknowledgment was obtained by fraud or coercion, or where
signatures were forged).
Voluntary Acknowledgment
183 OBRA '93 requires each State to have laws and procedures
under which a voluntary acknowledgment of paternity must be
recognized as the basis for seeking a support order without
requiring any further proceedings to establish paternity.
183 Filing of a petition seeking a support order and
information-gathering necessary for support order
establishment should begin in a IV-D case as soon as a
voluntary acknowledgment is obtained.
183 This should help ensure that the child begins to receive
financial support at the earliest possible date.
183 Although a voluntary acknowledgment must serve as the basis
for seeking a support order without further proceedings to
establish paternity, the IV-D agency must still establish
paternity in accordance with State law.
- The statute merely precludes State requirements that
the paternity determination must be a separate,
preliminary action prior to a proceeding seeking
support for the child.
183 If a voluntary acknowledgment creates a rebuttable
presumption of paternity:
- A State may combine paternity and support order
establishment in the same proceeding, if both are
needed in a case. If the IV-D agency seeks both
paternity and support in the same proceeding, it may
also be possible to obtain a temporary support order
pending a final judgment.
- Alternatively, a State may choose to establish support
awards on the basis of a rebuttable presumption of
paternity, and to convert the presumption to a final
paternity determination through subsequent
administrative or judicial processes.
183 If under State law, a voluntary acknowledgment creates a
conclusive presumption of paternity (which is a legal
determination of paternity), the IV-D agency does not need
to take any further action to establish paternity and may
immediately move to seek a support order on the basis of an
acknowledgment.
183 Regardless of the State's procedures, the support order must
be established within the expedited process timeframe, which
we will discuss in a minute.
183 The IV-D agency, in IV-D cases where a support order has not
been established, must seek a support order based on a
voluntary acknowledgment.
Presumption of Paternity Based on Genetic Test Results
183 Although the combined effect of the various provisions we
just discussed should increase the number of paternities
established by voluntary acknowledgment, some cases will
remain contested. OBRA '93 and the implementing Federal
regulations contain provisions designed to expedite such
contested cases.
183 OBRA '93 requires States to have laws and procedures which
create a rebuttable or conclusive presumption of paternity
based on genetic testing results which indicate a threshold
probability of the alleged father being the father of the
child.
183 A presumption of paternity should expedite paternity
resolution.
183 A rebuttable presumption shifts the burden of proof to the
presumed father to disprove a paternity allegation.
183 A conclusive presumption has the same effect as a judgment
for paternity.
183 Each State may designate the specific threshold probability
that creates a presumption of paternity.
183 Prior to the enactment of OBRA '93, about half the States
had already adopted a presumption of paternity standard
based on genetic test results. These State statutory
threshold probabilities generally fall at a point between 95
to 99 percent.
183 A State may tie its threshold to an inclusionary
probability, whether expressed as the paternity index or
another statistical standard that indicates the probability,
based upon the results of the specific testing performed,
that the accused man is the biological father of the child.
Admission of Genetic Test Results Provision
183 OBRA '93 requires each State to have laws and procedures
which provide that any objection to genetic test results
must be made in writing within a specified number of days
before any hearing at which such results may be introduced
into evidence.
183 In addition, laws and procedures must specify that if no
objection is made, a written report of the test results is
admissible as evidence of paternity without the need for
foundation testimony or other proof of authenticity or
accuracy.
183 By only allowing challenges made within a timeframe, this
provision prevents last-minute challenges to test results.
Last-minute challenges can be difficult to meet if they may
require testimony from out-of-State laboratory
technicians/experts who must travel long distances.
183 In cases where no timely objection is raised, this provision
expedites the process by allowing admission of a written
report of the genetic test results without the need for
foundation testimony. Prior to the enactment of OBRA '93,
some States had cumbersome foundation requirements (e.g.
requiring the testimony of every person involved with the
chain of custody of the blood sample).
183 Each State may set the "specified number of days" within
which objections to genetic test results must be made before
a hearing.
- The U.S. Commission on Interstate Child Support
recommended that States require any objection to
genetic testing results be made in writing at least 21
days prior to trial.
- Before the enactment of OBRA '93, at least four States
had a timeframe that required an objection to genetic
test results be made at least 20 days prior to trial;
two States required objections to be made at least 30
days prior to trial.
When Default Orders in Paternity Cases are Required
183 OBRA '93 requires each State to have laws and procedures
providing for the entry of default paternity orders under
specified circumstances.
183 Before entering a default order, there has to be a proper
showing of service of process and any additional showing
necessary under State law. States may require some evidence
of paternity, perhaps a prima facie case based upon the
mother's testimony.
Default Orders
183 In addition, there must be a showing that the defendant
failed to respond to service in accordance with State
procedure.
- State procedures generally require the alleged father
to file a written response or to appear on a specific
date or within a period of time.
183 Therefore, if an alleged father does not respond to service
of process, he will be subject to a finding of paternity by
default.
183 Most States already have provisions for entry of judgments
by default as part of their civil procedure code or statute.
Prior to the enactment of OBRA '93, at least 11 States also
had default provisions that applied specifically to
paternity cases.
183 However, prior to the enactment of OBRA '93, many States'
default provisions were permissive, allowing but not
requiring the tribunal to enter a default order. Under OBRA
'93, State law must require, not simply allow, tribunals to
enter default orders under specified conditions in paternity
cases upon motion.
183 State law need not require a default order to be entered if
the alleged father initially responds in accordance with
State procedures but later fails to appear at a hearing or
respond to a notice.
- States may, however, choose to go beyond this minimum
requirement by compelling tribunals to enter default
orders in cases even if the alleged father initially
responds.
- For example, some States provide for the use of default
judgments to address situations in which the alleged
father fails to cooperate with an order to appear for
genetic testing.
183 In IV-D cases, the IV-D agency must seek a default order by
the court or administrative authority in a paternity case
meeting the necessary conditions.
Full Faith and Credit Must be Given to Determinations of
Paternity
183 This provision requires each State to have laws and
procedures under which the State must give full faith and
credit to a determination of paternity made by any other
State, whether established through voluntary acknowledgment
or through administrative or judicial processes.
183 Under the principle of full faith and credit, an
out-of-State paternity judgment is given the same force and
effect in other States as it is given in the State of
origin. When a State gives full faith and credit to another
State's paternity judgment, it honors that judgment
according to its terms, just as if it had been entered in
the second State.
183 This provision should improve interstate processing since a
State, upon receiving a paternity determination made by
another State, must recognize that determination and move
forward with the next step (e.g., support order
establishment or enforcement) without questioning or
revisiting the paternity issue.
183 A conclusive presumption based upon genetic test results or
a voluntary acknowledgment which creates a conclusive
presumption of paternity in the State where it is
acknowledged should have the same force and effect as a
judgment for paternity. Other States must give full faith
and credit to paternity determinations based upon another
State's conclusive presumption.
183 Generally, if no determination of paternity has previously
been made, State law of the forum State (i.e., the State
where the paternity/support action occurs) will determine
the legal weight given to a voluntary acknowledgment,
genetic test results, or other evidence (regardless of
whether the acknowledgment, test results, or evidence were
obtained by or in the State or by another State).
Timeframes for Paternity and Support Establishment
183 The Child Support Enforcement Amendments of 1984 required
States to have an expedited process within their judicial or
administrative systems for obtaining and enforcing child
support orders.
183 At the option of the State, the expedited processes could
also include actions for establishment of paternity.
183 OBRA '93 amended this requirement to mandate inclusion of
paternity establishment in expedited processes, as defined
by Federal regulation.
183 The regulatory definition of expedited process is based on
timeframes. States must process IV-D cases within specified
timeframes in order to be determined to be operating an
expedited process.
183 OCSE reexamined and revised previously-existing expedited
process and program standard timeframes in light of the new
OBRA requirements.
183 The final Federal regulation replaces four
previously-existing expedited process and program standards
timeframes for paternity establishment and support
establishment [the 90 day and one year paternity timeframes
at 45 CFR 303.5(a)(1) and (2), the 90 day support
establishment timeframe at 45 CFR 303.4(d), and the former
expedited process timeframe at 45 CFR 303.101(b)(2)] with
two new timeframes.
183 These new timeframes apply to all IV-D cases needing support
order establishment, regardless of whether paternity has
been established.
- The new regulations avoid separate, dual timeframes for
paternity and support order establishment which may
have encouraged States to have separate proceedings for
paternity establishment and support order establishment
(and to take advantage of both timeframes).
- Instead, OCSE wants to encourage States to establish
paternity and support (if both are needed) quickly and
in the same proceeding whenever possible.
183 The timeframes include a "front-end" timeframe and a
"back-end" timeframe. A State must meet the "back-end"
timeframe in order to have an expedited process for
paternity and support order establishment.
Front-end and Timeframes for Paternity and Support Establishment
183 The starting point of the "front-end" timeframe is location
of the alleged father/noncustodial parent.
- In interstate cases, this timeframe begins upon receipt
of a case by the local IV-D agency in the responding
State responsible for establishment of support orders.
183 The length of the timeframe is 90 calendar days.
183 The ending point of the timeframe is when a support order is
established or process is served (or unsuccessful efforts to
serve process are documented).
183 In cases needing both paternity and support order
establishment, the "front-end" timeframe will encourage IV-D
agencies to seek both a voluntary acknowledgment of
paternity and a consent support order within 90 calendar
days.
183 If unable to establish a support order within the
90-calendar-day timeframe, the IV-D agency must serve
process (or document unsuccessful attempts to serve process)
before the end of the 90 calendar days. The service of
process must be sufficient to commence
administrative/judicial proceedings to establish a support
order and, if necessary, paternity.
- For purposes of timeframes, the Federal regulation
construes "service of process" broadly as any action
that gives the State jurisdiction over the defendant
under State law. This could include traditional
service of process (e.g., personal service, certified
mail) or consent to jurisdiction (e.g., waiver of
formal service by signing a voluntary appearance), as
long as the date the service event occurs is documented
in the case record.
- The regulation also allows a State to satisfy the
90-calendar-day timeframe by "commencing proceedings"
with a formal notice requesting the alleged
father/noncustodial parent to voluntarily: either (1)
acknowledge paternity or consent to entry of a support
order; or (2) appear at a conference or other
proceeding where he may acknowledge paternity or
consent to entry of a support order. (However, the
expedited process timeframe would also be triggered by
the notice).
Expedited Process Timeframes for Paternity and Support
Establishment
183 The "back-end" or expedited process timeframe starts with
service of process, regardless of the age of the child.
- New genetic testing technologies help address the
problem of drawing a sufficient quantity of blood from
small infants (e.g., DNA testing with a single spot of
blood, buccal swab sampling, and umbilical cord
sampling).
- While the expedited process timeframe does not require
States to use such genetic testing technologies, it
does encourage States to initiate the paternity
establishment process as soon as possible in each case.
183 Actions must be disposed of within the following timeframe:
75 percent in 6 months
90 percent in 12 months
- The two tiers recognize that some cases take longer to
process than others. They require that the significant
majority of cases be processed within the shortest tier
of the timeframe, but allow a longer period for some
cases.
- The first tier is 75 percent--the audit standard that
has traditionally been used for evaluating compliance
with case processing requirements.
183 Disposition occurs when a support order is officially
established/recorded or the action is dismissed.
- A judicial or administrative determination of the
parent's legal obligation may count as disposition even
if there is a finding, under guidelines or based upon
specific circumstances, that there is no present
ability to pay.
- Exclusionary genetic test results will count as
disposition if they are obtained after "service of
process". If exclusionary test results are obtained
and the man is eliminated from consideration as a
possible father before a formal commencement of
proceedings, the case would be excluded from the
universe of cases evaluated under the expedited process
timeframe, and would count neither as a "success" nor a
"failure".
- A temporary order counts as disposition provided that
the amount of support is determined in accordance with
the State's guidelines for child support awards or
there is a finding on the record that the application
of guidelines would be unjust or inappropriate.
183 This new timeframe has several advantages over the previous
timeframe structure:
(1) It avoids dual timeframes for paternity and support
order establishment, thereby strongly encouraging
States to establish paternity and support in the same
proceeding in cases where both actions are needed.
(2) It provides an incentive for States to aggressively
pursue early paternity establishment. If paternity is
acknowledged or established at birth, the State will
have a head-start on meeting the expedited process
timeframe if the case subsequently becomes a IV-D case,
since one timeframe applies regardless of whether or
not paternity needs to be established.
(3) By replacing four timeframes with two, it makes the
time standards simpler and easier to understand.
(4) It is more results-oriented and gives States
flexibility while still assuring expeditious outcomes.
Instead of having an interim timeframe solely measuring
paternity establishment, States are measured according
to their ability to reach the end result (a support
order) in an expeditious manner.
(5) By not imposing an absolute standard of 100 percent of
cases, it recognizes that there are complex cases,
particularly some contested paternity cases, that
cannot be accomplished within this time period.
183 To encourage the use of long-arm jurisdiction in cases
involving nonresident alleged fathers/obligors, the Federal
regulation gives States "credit" for disposing of a case
using long-arm jurisdiction.
- In cases where the IV-D agency uses long-arm
jurisdiction and disposition occurs within 12 months of
service of process, the case could be counted as a
success within the 6 month tier of the timeframe,
regardless of when disposition occurs within the 12
month period.
Expedited Process Timeframes for Enforcement
183 The Federal regulation replaces the previously-existing
expedited process timeframe for enforcement (the 90, 98, 100
percent standard) with previously-existing program standards
enforcement timeframes [at 45 CFR 303.6(c)(2)] and wage
withholding timeframes [at 45 CFR 303.100]. In order for a
State to have an expedited process for enforcement, actions
to enforce a support obligation must be completed within
these timeframes.
183 The program standards timeframe for enforcement [at 45 CFR
303.6(c)(2)] applies to all enforcement actions other than
wage withholding and State/Federal income tax refund offset.
This timeframe requires enforcement action within no more
than 30 calendar days (if service of process is not needed)
or 60 calendar days (if service of process is needed) of
identifying a delinquency or other support-related
noncompliance, or location of the absent parent, whichever
is later.
- Within this timeframe, the IV-D agency must "commence
and complete" appropriate action that will potentially
result in collections.
- Possible actions include, but are not limited to:
reporting arrearages to a credit reporting agency;
imposing a lien against real or personal property;
suspending or denying a professional or driver's
license; or seizing property.
183 Wage withholding timeframes [at 45 CFR 303.100] include, for
example, timeframes for sending notice to the obligor in
initiated withholding cases, timeframes for procedures to
contest withholding, and timeframes for interstate
withholding.
Focus on Timeframes
183 The Federal regulation gives States flexibility while still
ensuring expeditious processing of cases.
183 The focus of the revised expedited process requirement is on
timeframes, regardless of who is the presiding officer.
183 With the addition of paternity establishment to expedited
processes, the Federal regulation deletes the previous
prohibition against the use of judges.
183 Allowing the use of judges as presiding officers is
consistent with the statute.
183 This revision is in no way a suggestion that States abandon
established quasi-judicial or administrative processes, nor
is it meant to discourage other States from implementing
such procedures.
- Many States have found administrative or quasi-judicial
process to be crucial to expediting case processing.
- States using their judicial systems for paternity and
child support may need to reconsider their process to
meet the expedited process timeframes.
183 By deleting the requirement that a presiding officer may not
be a judge, the need for requests for exemptions for
expedited processes will be reduced.
- In the past, exemptions were routinely granted to
jurisdictions using judges that meet the expedited
process timeframes.
- Jurisdictions that meet the timeframes can now use
judges without having to go through the exemption
process.
|
