NOTE: Hyperlinks provided in this policy fax briefing were correct as of the time of publication.

November 2000 - Vol. 2, No 9

• Federal Office of Child Support Enforcement Clarifies Policies For Low-Income Parents
• Paternity Establishment Report Released
• Genetic Tests As Basis For Reversing Paternity and Stopping Child Support Are Addressed In Two States

Federal Office of Child Support Enforcement Clarifies Policies For Low-Income Parents

In response to a recent Office of Inspector General (OIG) report (see October 2000 Policy Fax Briefing) that identified several areas where low-income obligors face significant obstacles to paying child support, the Office of Child Support Enforcement (OCSE) has published the answer to a Policy Interpretation Question, PIQ-00-03. The document reiterates several options available to states to address some of the issues outlined in the OIG report. It could prove particularly valuable for those who advocate on behalf of low-income families, since it makes clear that many state policies and practices are not mandated or even encouraged by federal law. Among the key points:

• Acknowledging that child support arrearages owed to the state by low-income obligors are largely uncollectable, OCSE reiterates its earlier policy clarification to states that when child support has been permanently assigned to the state, the state may compromise (reduce) the arrearage. OCSE encourages states to consider this by describing several methods for doing so: 1) arrearages can be compromised in accordance with specific criteria such as participation in fatherhood or employment programs, and/or payment of current support. 2) amnesty programs that consider a portion of assigned past-due support satisfied for obligors who pay full current support on time over a certain period, or 3) enforcement can be postponed.
• States are encouraged to consider compromising state debt in cases where payment of current child support obligations is feasible, but the level of state debt is beyond the ability of the obligor to pay. State debt refers to an amount charged to noncustodial parents equal to the amount of welfare assistance provided to the family for the period when there was no support order in place, and to any other charges for state services.
• Citing OIG's findings that child support orders based on imputed minimum wage often go unpaid, OCSE suggests that states limit the imputation of income to cases in which the noncustodial parent has apparent assets and/or ability to pay, but is uncooperative.
• States are also encouraged to publicize to noncustodial parents the opportunity to request a review of a support obligation when circumstances change significantly, particularly in cases of incarceration, and are asked to respond appropriately to requests for child support modifications in order to ensure that the order is based on a current ability to pay.
• States may choose not to establish retroactive child support debt for low-income obligors in public assistance cases. The added debt discourages payment particularly since it is owed to the state.

The document is available on-line at www.acf.dhhs.gov/programs/cse/pol.

Paternity Establishment Report Released

The National Women's Law Center (NWLC) and the Center on Fathers, Families, and Public Policy (CFFPP) released a report this week from their collaborative initiative, Reaching Common Ground. The collaboration is an ongoing series of discussions funded by the Ford Foundation with the purpose of bringing together the potentially conflicting agendas of low-income fathers and mothers to find commonality on issues facing low-income families. The report, Family Ties: Improving Paternity Establishment Practices and Procedures for Low-Income Mothers, Fathers and Children, addresses issues specific to paternity establishment. The report makes the following conclusions:

• The Personal Responsibility and Work Opportunities Reconciliation Act (PRWORA) increased federal pressure on states to establish paternity and collect child support. States have responded with an increasingly informal procedure to establish paternity. This more casual process may lead parents to overlook the serious implications of paternity establishment. Participants agreed that a process that does not ensure that paternity is established for the right father can be harmful to all family members, particularly since the collected child support is usually retained by the state.
• Under PRWORA, low-income women must assign rights to child support to the state as a condition of receiving welfare benefits. This assignment allows the state to collect and retain child support in order to repay the cost of providing public assistance to the family. The report recommends that, with the goal of maximizing the income of poor families, the state should rescind the required assignment of child support to the state for women on welfare. At the very least, states should pass through and disregard support collected to the mother instead of retaining it. Such a measure will ensure that child support is economically beneficial to children and give low-income fathers more incentive to cooperate with the formal child support system.
• To receive federal assistance, a woman on welfare must disclose the name of the father. Participants agreed that the decision to establish paternity and pursue support should be made by the family rather than the state. Forced paternity establishment often undermines informal arrangements of families in which the father is already offering economic and emotional support.
• Since the paternity establishment and child support process leads to forced legal contact between mother and father, in cases of domestic violence more women need access to the good cause exemption from child support cooperation requirements.
• Low-income mothers and fathers, and the social service staff who are working with them need to be educated on the full range of implications of paternity establishment, including custody and visitation rights and possible consequences on immigration status.
• For parents who choose to establish paternity, the procedure should be accessible and easy. The state should work to facilitate, rather than force paternity establishment.
• The paternity establishment procedure should be fair to both parents. Considering the significant implications that paternity establishment has for low-income men and their families, at a minimum the following should be ensured: a procedure for rescission of paternity that is as accessible and simplified as that of paternity establishment, more conservative default judgments that are reserved for the parent who is purposely avoiding the paternity establishment process, and free genetic testing for low-income fathers contesting paternity.

Future reports of the Reaching Common Ground Initiative will address the setting and modification of child support awards, child support enforcement, and custody and visitation for low-income families. The full report can be obtained on-line at www.cffpp.org, or from NWLC at www.nwlc.org.

Genetic Tests as Basis for Reversing Paternity and Stopping Child Support Are Addressed in Two States

A Court of Appeals decision in Maryland and a new state law in Ohio that took effect October 27, 2000, (reported on as a bill in the May 2000 Policy Fax Briefing), both address the question of overturning paternity judgments when genetic tests provide evidence to disprove paternity. In Ohio, men whose genetic tests disprove their paternity now have legal grounds to contest a final paternity order. This would mean that the father would no longer be responsible for child support and could have any child support arrearages that accrued under a previous child support order for that child waived.

In Maryland, a Court of Appeals held that anyone who has a paternity declaration entered against him, without blood and genetic testing, generally may initiate proceedings to modify or set aside the paternity and may request blood or genetic tests in order to confirm or deny paternity. The Court's holding does not necessarily apply to any child support already paid or the support arrears proven to be due at the time of the trial. The Court held that a consideration of the best interests of the child in ordering the requested testing, or in consideration of paternity is inappropriate.

Currently, most states forbid challenges to paternity establishment after a specific period of time. The availability of DNA testing is likely to continue to push states to reconsider these statutes, but there are circumstances that present lawmakers with a difficult choice. For fathers who have raised children as their own, a disavowal of paternity would arguably not be in the best interest of the children, particularly if it were sought in order to avoid child support obligations.

New considerations of the right to modify or revoke orders established when genetic tests disprove paternity could have a significant impact on paternity cases associated with the welfare caseload. Welfare reform created a requirement that the custodial parent cooperate with the state to establish paternity, increasing the pressure to name a father for the applicant's children. Under PROWRA, states are required to establish paternity establishment procedures under which "a signed voluntary acknowledgment of paternity may be challenged in court only on the basis of fraud, duress, or material mistake of fact, with the burden of proof upon the challenger." There is some question whether the new Ohio law and the Maryland court holding counter this federal law. Several recent reports suggest that a high percentage of these paternities are established in error, with the putative father being subject to child support obligations that repay the state for the welfare received by the custodial parent.