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Genetic ties do not always determine legal paternity, as when the mothers are married to others. Yet genetic ties typically prompt paternity opportunities for biological fathers when mothers are unmarried. In Lehr v. Robertson in 1983, the U.S. Supreme Court recognized that such interests prompt the U.S. constitutional guarantee of fair procedure. Thus an American government cannot unfairly interfere with men who wish, or might wish, to pursue paternity. The court said that governmental systems that likely omit “many responsible fathers” for reasons beyond their control “might be thought procedurally inadequate.” The fairness guarantee is illustrated in Parratt v. Taylor. There, a prisoner complained that his hobby kit, though delivered to the prison, never reached him. The Supreme Court recognized in 1981 that the prisoner would prevail if the postal delivery system was “inadequate” in protecting his property as long as it was “practicable for the State” to provide greater protection. Paternity designation systems thus must afford “practicable” opportunities for certain biological dads to establish legal fatherhood. About 1.5 million U.S. children are born yearly to unwed mothers. About a million have fathers recognized under law around the time of birth. Virtually all have legal mothers. This disparity occurs even though states repeatedly pronounce they want both a father and a mother for children born of sex. Recent statute amendments in Wisconsin reflect a policy “to promote the interest of children in knowing the identity of both parents.” And lost paternity is rampant, though states proclaim that, at birth, biological parents should be treated equally. A Delaware law declares: “The father and mother are joint natural guardians of their minor child and are equally charged with the child’s support . . . .Each has equal powers and duties with respect to such child, and neither has any right, or presumption of right or fitness, superior to the right of the other.” Of course, fathers can be secured after birth for fatherless kids via DNA tests. But here, healthy father-child relationships are far more difficult. And here, disturbingly, the need for child support or child support reimbursement often drives the later paternity inquiries, not healthy parent-child relations or equality. A quick glance at contemporary American paternity laws clearly shows that many dads are being screwed systematically. In the birth certificate context, federally driven mandates, arising from Temporary Assistance for Needy Families (TANF), require that voluntary paternity acknowledgment opportunities be made available to genetic fathers at hospitals shortly after birth. Yet federal laws say nothing about securing paternity designations for as many children as possible. And later, when unwed mothers seek welfare on behalf of their fatherless children, TANF participation is contingent upon the “good faith” efforts by the mothers to establish legal paternity. Designated fathers become important only when there are potential reimbursements. In the safe haven setting, state laws typically allow mothers to abandon their newborns with no questions asked. For example, a West Virginia statute says the recipient of an abandoned child shall respect the mother’s “desire to remain anonymous.” The purported goal to prevent child abuse is marginally achieved, while many kids are left with no real chance for a father-child relationship or for learning about their genetic background. Finally, when unwed mothers place their newborns for adoption, biological dads frequently receive no notice. When the birth certificate is blank on paternity, effective notice surely is difficult. In many states, notice to genetic dads not listed on birth certificates is generally required only when the dads earlier registered their sexual encounters with the moms. Failure to register with the state due to lack of knowledge of pregnancy and birth usually provides no excuse. A Utah statute says: “The Legislature finds that an unmarried mother has a right to privacy with regard to her pregnancy and adoption plan, and therefore has no legal obligation to disclose the identity of an unmarried biological father.” Such material privacy is not constitutionally compelled, as suggested by the TANF duty requiring welfare moms to cooperate “in good faith” in establishing legal paternity. Too many “responsible fathers” of children born to unwed mothers are omitted from paternity systems though their inclusion is “practicable.” Greater protections of paternity interests not only are required constitutionally, but are consistent with widely shared two-parent and equal protection principles. In a 2007 ruling in Ventura County Dep’t of Child Support Serv. v. V.F., California Appellate Judge Paul Coffee repeated his “frustration over the state of the law in paternity cases.” Upon urging legislative reform, he asked the question I ask: “Is anyone listening?” Jeffrey A. Parness is a professor emeritus at Northern Illinois University College of Law.

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