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PIQ-03-01

DATE:         April 28, 2003

TO:               State IV-D Directors

FROM:        Sherri Z. Heller, Ed.D.
                      Commissioner
                      Office of Child Support Enforcement

SUBJECT: Paternity Disestablishment

Paternity disestablishment has become an important issue for a number of states. State legislatures have enacted, or are considering enacting, legislation that allows a man to challenge his established paternity by presenting genetic evidence excluding him as the biological father. Even in the absence of legislation, some courts have used judicial rules and procedures to disestablish paternity.

The growing public debate over this issue has raised concerns about the impact of paternity disestablishment on the IV-D program, the program’s requirements, and the availability of federal funding for state IV-D program expenditures. For the most part, paternity disestablishment is a state, rather than a federal, issue. The direct federal interest relates to the impact of these laws on state IV-D programs. Some IV-D directors have asked whether existing or pending legislation or existing court practices may violate IV-D requirements and result in the loss of all IV-D funding, and possibly Temporary Assistance for Needy Families (TANF) program funding under title IV-A of the Social Security Act (the Act) as well.

In response to requests for federal guidance on this issue, below we address questions to which title IV-D of the Act and related federal regulations provide clear answers. Although each state law, proposal, or practice is unique and requires individual scrutiny, states should consider the following guidance in shaping any policies regarding paternity disestablishment.

1. Question: Is there a federal requirement that IV-D agencies provide services to noncustodial parents who seek to disestablish paternity?

Answer: No. Providing services to disestablish paternity is not required under title IV-D of the Act or implementing regulations. However, federal IV-D funding would be available at 90 percent for genetic testing and at 66 percent for reasonable and necessary expenditures incurred if a state IV-D agency provides services to, or responds to a challenge by, an individual in a IV-D case who acknowledged paternity and, at some future date beyond the 60-day rescission period, seeks to challenge a voluntary acknowledgement on the basis of fraud, duress, or material mistake of fact, as allowed under section 466(a)(5) (D)(iii) of the Act.

2. Question: Is federal IV-D funding available for genetic testing in IV-D paternity disestablishment cases in which paternity was established but is now contested in accordance with state law?

Response: Yes. 45 CFR 303.5(d)(2) defines a contested paternity case as any action in which the issue of paternity may be raised under state law and one party denies paternity. Since IV-D agencies are required to order genetic testing in a contested paternity case upon request of any party in accordance with section 466(a)(5)(B)(i) of the Act, if paternity is contested in accordance with state law and the IV-D agency orders genetic testing in a IV-D case, federal IV-D funding is available at 90 percent for the cost of such tests. The IV-D agency is required, under section 466(a)(5)(B)(ii) of the Act to pay for the costs of such tests, subject to recoupment at state option from the alleged father if paternity is established.

3. Question: Is federal IV-D funding available for genetic testing offered and provided as part of the voluntary acknowledgment process? If a state requires genetic testing in every out-of-wedlock case, would federal IV-D funding be available for those costs?

Response: Federal IV-D funding is only available for genetic testing in IV-D cases. In addition, under section 45 CFR 304.20(b)(2)(vi), Federal Financial Participation at 66 percent is available for payments up to $20 to hospitals, state birth record agencies, and other entities designated by the state and participating in the state’s voluntary paternity establishment program, under 45 CFR 303.5(g), for each voluntary acknowledgment obtained pursuant to an agreement with the IV-D agency. Federal IV-D funding is not otherwise available in non-IV-D cases as part of the voluntary acknowledgment process or in every out-of-wedlock case.

4. Question: May a court require genetic testing before accepting a voluntary acknowledgment in a IV-D case?

Response: No. Section 466(a)(5)(D)(ii) and (E) of the Act requires states to enact laws requiring the use of procedures under which: (1) a signed voluntary acknowledgment of paternity is considered a legal finding of paternity; and (2) judicial or administrative proceedings are not required or permitted to ratify an unchallenged acknowledgment of paternity. In addition, 45 CFR 302.70(a)(5)(vii) requires procedures under which a voluntary acknowledgment must be recognized as a basis for seeking a support order without requiring any further proceedings to establish paternity.

5. Question: If a state enacts a paternity disestablishment law that provides that a support order be vacated, and arrearages owed under that order are also vacated if paternity is disestablished, would that law violate section 466(a)(9) of the Act, otherwise known as the Bradley Amendment?

Response: No. Section 466(a)(9) of the Act requires states to enact laws requiring the use of procedures under which any payment of support under a child support order is, on and after the date it is due, a judgment by operation of law. Under section 466(a)(9), child support orders may not be retroactively modified by any state and must be given full faith and credit by sister states. Vacating a support order and arrearages that accrued under an order once paternity has been disestablished in accordance with state law is distinct from modifying arrearages that accrued under a support order. Black’s Law Dictionary (6^th ed. 1990) defines "vacate" as "annul; set aside; cancel or rescind." "Modify" is defined as "alter; change in incidental or subordinate features; enlarge, extend; amend; limit, reduce." A vacated judgment is one that, as a legal matter, has no effect and is treated as if it never existed.

cc: ACF Regional Administrators
      ACF Regional Program Managers