Injustice By Default by Matt Welch
Injustice By Default by Matt Welch© 2004 Reason Magazine
Reproduced under the Fair Use exception of 17 USC § 107 for noncommercial, nonprofit, and educational use.
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February 2004 — Tony Pierce remembers vividly the exact moment in November 2000 when the state of California began trampling on his life. “There was a loud angry pounding at my door at five o'clock in the morning,” he recalls. “Very scary.”
It was a female police officer with a complaint accusing him of being the father of an 8-year-old girl in Contra Costa County, east of San Francisco. “I'm like, 'Great! I'm definitely not the father of anybody,'” he says.
There were excellent reasons to think so. He had never met or heard of the mother of the child. He had never lived in Northern California, and at the time of conception (spring 1991) he was attending the University of California at Santa Barbara, beginning a monogamous relationship that would last for two years. What's more, he's a condom fanatic — only once in his life, Pierce swears, has he failed to use a rubber during intercourse, and that was “many years after.” (He's been a friend of mine for 15 years, and I believe him.) And if the summons had included the mother's testimony (it was supposed to, but did not), he would have seen himself described as a “tall” and “dark” black man named “Anthony Pierce.” Pierce is a hair over five feet, nine inches; he is so light-skinned that even people who know him sometimes don't realize he's black; and no one calls him Anthony except his mom.
The front page of the court document gave simple but misleading instructions: “You have 30 days to respond to this lawsuit. You may respond in one of two ways: 1. File an Answer to the complaint with the Superior Court of Contra Costa County, not with the District Attorney....2. Settle the case with the District Attorney. You may call us at (925) 313-4200 to discuss your case.” Concluding incorrectly (but understandably) that he could settle the matter over the phone, Pierce called — three times that day — and tried to weave his way through a labyrinthine phone tree. Finally he found a human being, who instructed him to leave a message with a home phone number. The department called him back the next day and left a message; it took another three calls from Pierce before he reached a caseworker for the first time.
“I said, 'What do I need to do? I'm not the father,'” he remembers. “And they were like, 'OK, well this is what you do: You just call in every day, and then we'll understand that you're not it, because if you're it, you're not gonna call us every day.'”
Pierce did everything he was told over the next three weeks of phone tag, except for comprehending that the 30-day deadline for denying paternity in writing was etched in federal law, regardless of what he discussed with Contra Costa employees — who he says never once told him the clock was ticking. “All they were doing was delaying me from doing what I needed to do,” he says. “It's a huge scam — huge scam....They're just counting the days. They're like, 'Sucker, sucker, sucker, sucker.'...And this is the government!”
Two months later, after the phone conversations had ended and he assumed he was off the hook, Pierce received notice that a “default judgment” had been entered against him, and that he owed $9,000 in child support. He was between dot-com jobs, and his next unemployment check was 25 percent smaller; the state of California had seized and diverted $100 toward his first payment. Suddenly, he was facing several years of automatic wage garnishment, and the shame of being forced to explain to prospective employers why the government considered him a deadbeat dad. “That's when it hit me,” he says. “I mean, it's mostly my fault — 'Fill out the form, dumb-ass!'...But it's so rigged against you, it's ridiculous.”
What Pierce didn't realize, and what nearly 10 million American men have discovered to their chagrin since the welfare reform legislation of 1996, is that when the government accuses you of fathering a child, no matter how flimsy the evidence, you are one month away from having your life wrecked. Federal law gives a man just 30 days to file a written challenge; if he doesn't, he is presumed guilty. And once that steamroller of justice starts rolling, dozens of statutory lubricants help make it extremely difficult, and prohibitively expensive, to stop — even, in most cases, if there's conclusive DNA proof that the man is not the child's father.
This stacked deck against accused dads has provoked a backlash movement, triggering “paternity fraud” legislation and related legal challenges in more than a dozen states. Combined with advances in genetic technology, this conflict may end up changing the way we define parenthood. For now, the system aimed at catching “deadbeat dads” illustrates how a noble-sounding effort to help children and taxpayers can trample the rights of innocent people.
Here's how it works: When an accused “obligor” fails, for whatever reason, to send his response on time, the court automatically issues a “default judgment” declaring him the legal father. It does not matter if he was on vacation, [in Iraq or Afghanistan,] was confused, or (as often happens) didn't even receive the summons, or if he simply treated the complaint's deadlines with the same lack of urgency people routinely exhibit toward jury duty summonses — he's now the dad. “In California, you don't even have to have proof of service of the summons!” says Rod Wright, a recently retired Democratic state senator from Los Angeles who tried and failed to get several paternity-related reform bills, including a proof-of-service requirement, past former Gov. Gray Davis' veto. “They only are obligated to send it to the last known address.”
In fact, a March 2003 Urban Institute study commissioned by the California Department of Child Support Services (DCSS) found that “most noncustodial parents appear to be served by 'substitute' service, rather than personal service, which suggests that noncustodial parents may not know that they have been served.” In Los Angeles County, which is notorious for its sloppy summons service and zealous prosecution of alleged fathers it knows to be innocent, nearly 80 percent of paternity establishments come in the form of default judgments. In the state as a whole, which establishes 250,000 paternities a year while collecting $2 billion in child support, a whopping 68 percent of the 158,000 child support orders in 2000 (the last year studied) were default judgments.
Once paternity is “established,” even if the government has never communicated with the father, the county court imposes a payment rate and schedule under the statistically mistaken assumption that he makes a full-time salary at minimum wage. (State audits have found that a full 80 percent of default dads don't make even that much.) To collect the money, the county may put a garnish order on the purported father's paycheck or place liens on his assets. If the mother has received welfare assistance after the child was born, the man will be hit with a bill to pay back the state, plus 10 percent annual interest. “That's what they're trying to do, is get some reimbursement to the state,” says Carolyn Kelly, public relations officer for the Contra Costa County DCSS. “As you can imagine, [that's] millions and millions and millions and millions of dollars.”
If the father falls 30 days behind on his payments, he will be blocked by law from receiving or renewing a driver's license or any “authorization issued by a board that allows a person to engage in a business, occupation, or profession” — a category that includes teaching credentials, fishing licenses, and state bar memberships. If his credit rating was good, it won't be any more. If his past-due tab exceeds $5,000, the U.S. State Department won't issue him a passport. (An average of 60 Americans discover this each day. Meanwhile, Congress has been pushing to cut the limit to $2,500, while urging the State Department to begin revoking passports, which is allowed under the law.)
“When you tell people about the inequities of the system,” Wright says, “they're surprised. They go, 'This is America! You couldn't do that!' And I go, 'Yes, you can.'”
Under the guidelines set forth by the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, single mothers can receive welfare only on condition that the state take charge of collecting their child support, including unpaid amounts from the past. If the biological father is not paying support, he will be tracked down and hit with the bill. The admirable goal, which statistics show has partially been achieved, was to encourage more responsible sexual behavior by single women, give two-parent families an incentive to stay together, wean recipients off welfare by forcing them to work, and help them find a little extra cash they didn't have before. At the same time, however, the law gave states an explicit mandate and direct financial incentive to name the maximum number of fathers and extract from them the maximum amount of money.
The bottom-line results have been impressive: Since 1993, according to Senate testimony last March by Marilyn Ray Smith, director of the Child Support Enforcement Division of the Massachusetts Department of Revenue, child support collection nationwide jumped from $8.9 billion in 1993 to $19 billion in 2001, while paternity establishments more than doubled, from 659,000 in 1994 to 1.6 million just five years later.
But you can read thousands of pages of laws, reports, and testimonies, and not see a single reference to the importance of naming the right guy, or to the gravity of making a mistake. Since Congress first got into the child support business in 1975, the cornerstone philosophy has been to orient everything toward “the best interest of the child,” which in practice has meant ensuring that the kid [actually the mother and the State] receives money. Now that the states also have a financial incentive — they pocket a cut of child support payments, earn performance rewards from the federal government, and enjoy the savings from reduced welfare rolls — the cash motive is stronger than ever. California, for example, crunches the numbers every which way: total child support dollars collected per dollar of total expenditure, average amount collected per case, and so on. But nowhere does the state bother to count the number of citizens it has wrongfully named as fathers. The bias is overwhelming, and abuses are inevitable.
Anyone familiar with paternity misestablishment horror stories will tell you that Tony Pierce is a fortunate man. “Oh, he got really lucky,” says Taron James, a wrongfully named father who recently founded a group called Veterans Fighting Paternity Fraud. “Mine's going on eight years.”
First of all, even at Pierce's current low, entry-level salary, he's rolling in dough compared to most default dads. According to the Urban Institute study, of the 834,000 Californians owing child support in 2001, “over 60 percent of debtors have recent net [annual] incomes below $10,000. Only 1 percent have recent net incomes in excess of $50,000.” It's safe to guess that, also unlike Pierce, most don't have good friends who are high-powered lawyers willing to work pro bono. Like obtaining a green card, which is a hellishly complex process navigated disproportionately by the poor, fighting a paternity complaint is nearly inconceivable without legal representation, which Wright says costs a “minimum” of $2,000. “If he can't get the two grand together, you know what?” Wright says. “He's shit out of luck.”
Pierce's lawyer, Kim Thigpen, is normally an entertainment attorney, so her crash-course education in family law came as a shock. “I've never seen anything like it,” she says. Thigpen was able to get the default judgment set aside — not canceled — on grounds of excusable neglect and mistaken identity, thereby blocking the wage garnishment until the mother and child settled the question once and for all by checking their DNA against Pierce's. Nearly three years and $10,000 in legal expenses later, they're still waiting for the mother to comply. (It was far easier for Contra Costa County to declare Pierce the father from 400 miles away than to compel the local-resident mother to show up for a DNA test.) At the hearing, the county attorney admitted that Pierce looked nothing like the mother's description, a fact that a simple Google search would have easily revealed, since Tony publishes a Web site that includes several dozen pictures of himself.
So how was Pierce fingered? How low is the legal threshold for placing men in the cross hairs of default justice? Both Contra Costa County and the California DCSS refused to discuss the specifics of this or any other case, citing privacy regulations (though Contra Costa's Carolyn Kelly did point out that “if you don't contact us, there's nothing we can do”) . But a look at how the process works reveals great potential for error.
Counties typically launch paternity investigations for one of two reasons: Either a parent or custodian directly asks for help in locating a biological parent, or a mother applies for welfare, which now is reported to the local child support system. If the mother was unwed, says California DCSS Assistant Director Leora Gerhenzon, “you ask about when you became pregnant, why you believe that date is correct, whether or not the father was named on the birth certificate, has the father seen the child,...does the father provide for support, has he ever lived with the child,...a Social Security number....It's a half-hour [interview], or even an hour and a half to two hours.”
What if the only information the mother provides, I ask Gerhenzon, is that it was 10 years ago, with a white guy named Matt Welch, now between 30 and 40 years old, who maybe lives in the Los Angeles area?
“In that case, now it depends,” she says.
“We run our search on him; if we come back with one Matt Welch who lives in L.A., whose birthday fits that 10-year range, and we have nobody else, we presume in general we have the person. If we come back with three Matt Welches, all of a sudden we know there's a problem. We have to call her back in, or call her on the phone, and say 'OK, here's what we've pulled up. We need more help from you to identify which is the correct [one].'”
So a name, race, vague location, and a broad age range is sufficient to launch a process that could quickly lead to a default judgment, asset liens, and a blocked passport? “Right. Right,” Gerhenzon confirms. “If it's clear that she's given us enough identifying information to come up with one discrete name, we would go ahead.” Wouldn't that make people with unusual names easier targets? “Absolutely.”
In addition to a low threshold for accusing men of paternity, the system lacks penalties for naming the wrong father. Mothers sign their declarations under penalty of perjury, Gerhenzon says, but neither she nor anyone else I talked to for this article could recall a single case where a mother was charged with a crime for naming the wrong man. In fact, until recently California hasn't had any way to see whether a woman had named different candidates in different counties. Asked how a caseworker might respond after discovering such a disparity, Gerhenzon says, “I think in all likelihood they would confront the custodial parent with both names, and say, 'Who is the appropriate parent?'” For both the mother and the state, the punishment for making a mistake is indirect, in the form of receiving less child support. (The state is much less successful in collecting from default dads, on average, and the wrongly named defaults surely pay the least.)
So how many default judgments catch the wrong guy? Nobody knows. Paternity reform activists point to a 2000 study by the American Association of Blood Banks that found 30 percent of the 300,000 paternity DNA tests conducted at accredited centers nationwide excluded the father. But the actual percentage of wrongfully named default dads is certainly much lower, since these samples come largely from people with doubts about paternity (as opposed to real deadbeat dads, who have considerable reason to avoid a DNA test).
Whatever the number, the state of California recognizes misidentification of fathers as a serious problem. “Some default orders are expected,” reported the Urban Institute, “but a default rate of 71 percent statewide indicates that something is terribly wrong.” In its study, which addressed the collectibility of California's $17 billion in outstanding support, the Urban Institute's No. 1 recommendation was to “reduce default orders.” The DCSS now has a Default Work Group, established at the behest of former Gov. Davis after he vetoed one of the reform bills, that is preparing recommendations for reducing the rate.
“What we have done in the past is sped up many of these defaults,” Gerhenzon says.
“And they were penny-wise and pound foolish, maybe, to go ahead and get quick orders.... And what we've certainly learned through our collectibility study, and...through general customer service, is that it is far, far better to get the right parent up front....In cases where we actually, because of the default, have the wrong parent, we end up collecting a whole lot less money.”
The systems for establishing paternity and providing child support are replete with legal deadlines that vary from state to state. Besides having 30 days to respond to a paternity complaint, an accused father in California has 180 days to contest a child support order and two years from birth to challenge paternity using DNA evidence (unless he has signed a voluntary declaration of paternity in the hospital under the federal government's new Paternity Opportunity Program, in which case he has just 60 days). If, for whatever reasons, any of these deadlines aren't met, no amount of evidence can move the state to review the case; the DCSS has to be sued. Unlike capital murder convictions, which are being overturned around the country because of DNA evidence, family court cases typically hew to the “finality of judgment” principle to prevent disruptions in children's lives. Or, in the words of former California legislator Rod Wright, “It ain't your kid, you can prove it ain't your kid, and they say, 'So what?'”
That's how a man like Taron James could be slapped with a support bill for thousands of dollars from Los Angeles County in 2002, and continue to be barred from using his notary public license, even after producing convincing DNA evidence and notarized testimony from the mother that her 11-year-old son, whom he's seen exactly once and looks nothing like, is not his child and that she no longer seeks his support. James says his name was placed on the child's birth certificate without his consent while he was on a Navy tour of duty; then the mother refused to take blood tests for eight years, and he became aware of a default order against him only when the Department of Motor Vehicles refused to issue him a driver's license in October 1996. By that time, James had missed all the relevant deadlines, the court was unimpressed with his tale of woe, and he has since coughed up $14,000 in child support via liens and garnishments.
“I contact Child Support Services, and their whole thing is, 'Take us to court. You don't like what we're doing, take us to court,'” he says. “Whether or not you're the biological father doesn't matter — if someone's got your name, and you've...failed to participate in the court date, then you have an obligation to pay child support, period.”
Needless to say, taking DCSS to court is expensive (James says he's already run up legal bills of $4,000), and success isn't likely. To add insult to injury, even if you win, you won't get any of your money back.
State bureaucrats say their hearts bleed, but rules are rules. “We are obligated by law to enforce the order,” says California DCSS's Gerhenzon.
“We have no ability not only to stop enforcement of our own, but not to proceed with doing everything we can to get child support in this case, because we have to enforce the legally established order. The recourse is to get that order set aside, or overturned.”
When judicial systems enthusiastically enforce rulings they know to be unjust, it's a surefire formula for creating activists. After writing scores of letters to politicians and conducting endless Internet searches, James and his girlfriend, Raegan Phillips, hooked up with a national group called U.S. Citizens Against Paternity Fraud, founded by a Georgia engineer named Carnell Smith. Smith paid more than $40,000 in support over 11 years to an ex-girlfriend's child he assumed to be his, until she requested more money in 1999. He then took a DNA test and discovered he wasn't the father, but the court ordered him to pay $120,000 anyway. Enraged, he launched Citizens Against Paternity Fraud and began lobbying the Georgia legislature to change laws that limited the admissibility of DNA tests. In May 2002, the effort passed, so now at least some default dads in Dixie — those who have never adopted their children or officially acknowledged paternity — can overturn support orders using DNA evidence, regardless of how much time has elapsed. In March of last year, under the new law, Smith's personal support order was finally overturned.
Similar laws have passed in Virginia, Ohio, Iowa, Arkansas, and Alabama; others are working their way through statehouses in Texas, New Jersey, California, Florida, Michigan, Vermont, and elsewhere. Meanwhile, courts across the country are trying to redraw the legal lines of paternity now that genetic testing and welfare reform are colliding with 500 years of common law tradition, which has presumed that all children born in a marriage are the husband's responsibility, whether or not he is the biological father. In May 2003, the New Jersey Supreme Court ruled that men who have admitted paternity, even if the mother lied to them, are not allowed to introduce DNA evidence to challenge support orders. Carnell Smith has been trying to push the issue to the U.S. Supreme Court, so far without success.
Although paternity fraud activists are beginning to gain traction, they face formidable obstacles. The Welfare Reform Act is largely a popular success. More two-parent families are staying together, more single mothers are entering the work force, and child support collections have doubled. By just about any measure, these trends are in the best interests of the affected children. In Massachusetts 18 years ago, for example, women had a miserable rate of success (around 10 percent) in suing for paternity, according to Marilyn Ray Smith, the state's chief child support enforcer, and genetic tests were inadmissible except to disprove paternity. For single mothers and their children, the legal climate obviously has changed much for the better.
Which helps explain why so many feminist groups and politicians have dug in their heels to block paternity reform bills. Considered in zero sum terms, any change that prevents some unjustly named fathers from supporting kids they didn't sire reduces the amount of money children and single mothers receive while increasing states' welfare payouts. Child support advocates also worry, with some reason, that narrow-sounding legislation aimed at preventing obvious injustices may become a Trojan horse for men who change their minds about the responsibilities of fatherhood. But that's rarely how the issue is presented. Women's groups usually argue that fatherhood cannot be measured by DNA alone — a disingenuous stance, considering the thousands of men who pay for kids they've never lived with.
“What makes a father?” California state Sen. Sheila Kuehl (D-Santa Monica) said in an August 2002 interview with the Los Angeles Times, explaining why she was voting against Rod Wright's latest reform bill. “This bill says the donation of genetic material makes a father. I don't agree.”
Kuehl, a former family law attorney who cosponsored a law that reworked California's child support system in 1999, has been the single biggest opponent of paternity-related reform bills in the state, to the point where activists like James and Phillips refer to her as “Sheila Cruel” and are planning demonstrations outside her office. Kuehl refused repeated requests to comment for this article. “She says it's not her issue,” a spokeswoman told me. “She's not interested to talk about it.”
Wright, who considers Kuehl a friend, says he tried several times to sway her with individual stories of innocent victims who'd been trampled by the current system. “Sheila said to me one day in a hearing room: 'You know, I understand that, through the convergence of science and thousand-year-old common law, we have to work toward a kind of balance. And I side with the kids; I don't really care about this guy.'” Wright chalks it up to the prevailing political winds. “If this was a case where women could be charged similarly,” he says, “Sheila would be all over this like a cheap suit. It's really a case where it becomes a guy vs. a child. So it's like, 'Well, screw the guy.'”
Paternity activists argue that the best interests of the child should include, among other things, knowing who her real biological father is, so she can have accurate medical information. And every day the wrong man is on the hook, they point out, is a day not spent finding the real father.
“They have failed her,” Tony Pierce says of Contra Costa County's effort on behalf of his supposed daughter.
“If they're in it to feel good about themselves and to go to heaven because they're fighting for women — no, they're going to hell, because they have not found this woman's father, and they have tried to fuck me over....What they should have said right away is, 'Hey look, this isn't the guy; let's get the [right] guy.'”
Every child support official I talked to was sensitive to the criticism and eager to discuss many past and future reforms aimed at reducing the number of default judgments, humanizing the system, and even (in the words of Contra Costa County's Kelly) eliminating the word deadbeat from their vocabulary. “This is a tough area,” California DCSS's Gerhenzon says. “When you have bad results in these situations, they are tough on everyone involved in the process: the parents, the legal parents, the child, the system. It is to everyone's benefit not to have these cases come up.”
But as long as state and federal laws remain as they are — with low evidentiary thresholds for issuing paternity complaints, no proof of service required, the presumption of guilt in default cases, a series of short legal deadlines beyond which paternity becomes extremely difficult to challenge, and financial incentive for the government to keep naming dads and extracting money — these cases will continue to come up. “I can see how so many men could be totally screwed right now,” Pierce says. “You know, I was educated, I had a good job, I'd never been involved with the cops before, I had nothing to fear, nothing to run from. But still, I got tied into it....I can see where this stuff could create many victims.”
Victims like Taron James, who lost at least two jobs while putting his life on hold for eight years so he could fight a judgment that should have never been made. “I'm a veteran — I fought for and defended my country,” James says, sitting in a Torrance, California, park down the street from his great aunt's crowded house, where he lives with his girlfriend and splits his time looking for work and driving to Sacramento to lobby legislators. “To be treated like this is ridiculous....Right now, I'm fully disgusted with California and the United States for allowing this to go on after I put my hind end on the line.”
Note: The print edition of this article incorrectly stated Raegan Phillips' name and one detail about Taron James.
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