Friday, July 23, 2010
Parness & Townsend: "For Those Not John Edwards: More and Better Paternity Acknowledgments at Birth"
Jeffrey A. Parness & Zachary Townsend (Northern Illinois University College of Law) have posted "For Those Not John Edwards: More and Better Paternity Acknowledgments at Birth" (forthcoming University of Baltimore Law Review) on SSRN. Here is the abstract.
When former U.S. Senator and Presidential candidate John Edwards (finally) declared his paternity of Quinn, born of sex to Rielle Hunter, many assumed he could then begin to raise as well as financially support the child he once publicly shunned. Many assumed legal paternity could arise through a court order, if not Rielle’s wishes. Had he been on the Maury Povich television show, the positive genetic tests would have prompted the host to declare John the father. Yet notwithstanding these declarations, there would be no childrearing by John if Rielle determined he should have no contact with Quinn, even if Rielle sought child support from John and even if Quinn’s best interests favored contact between her and John. For genetic fathers like John whose bedmates are not like Rielle, there are often no opportunities to present Christmas gifts.
As John and Rielle were never married and as Rielle was not married to another, Quinn was a nonmarital child with no federal constitutional legal father at birth. At birth, John may have had a federal constitutional opportunity interest in establishing parentage, seized by stepping up to parental responsibilities. Yet, as John only declared paternity two years after birth, after denying fatherhood and prompting another man to declare his genetic ties with Quinn, he may have been too late to seize the federal opportunity interest in order to fully parent Quinn without Rielle’s cooperation. Only with Rielle’s consent could John now complete a voluntary paternity acknowledgment, a prerequisite to placing John on Quinn’s birth certificate. And with Rielle’s opposition, any paternity lawsuit by John to establish regular contacts with Quinn would most likely fail even though any paternity lawsuit to establish John’s financial support of Quinn would most likely succeed.
Popular misconceptions about legal paternity for nonmarital children born of sex largely arise due to confusion and ignorance about voluntary paternity acknowledgments. Our exploration of the federal and state acknowledgment laws reveals that a John Edwards is often no new father with legal childrearing rights so that without a Rielle Hunter’s help, his relationship with a Quinn would be limited to checks in the mail.
Voluntary acknowledgment laws are especially important today because about 1.7 million nonmarital children are born of sex each year in the United States, with about one third, like Quinn, having no legal father at birth. In 1940, there were only about 90,000 nonmarital children. Like Quinn, some of today’s fatherless children have late arriving declarations about genetic ties, and perhaps paternal child care. Far more nonmarital children remain fatherless, though possibly the subject of later suits seeking child support.
Many nonmarital children will be born fatherless under law even though U.S. governments proclaim that these children should have both a mother and father under law at birth. Voluntary paternity acknowledgment laws can better prompt dual parentage. After reviewing contemporary acknowledgment forms, we suggest laws to prompt more, and more reliable, paternity acknowledgments, and thus more legal fathers at birth for nonmarital children.