Systemically Screwing Dads: Out of Control Paternity Schemes
Parness, Jeffrey A.
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In 1983 in Lehr v. Robertson, the U.S. Supreme Court recognized that paternity opportunity interests for biological fathers in children born to unwed mothers usually implicate federal constitutional life, liberty or property interests and thus warrant guarantees of fair procedures in adoptions. In 1989 in Michael H. v. Gerald D., the court reiterated that for any such father, there is the unique opportunity to develop a relationship with his offspring, though a similar paternity opportunity may be unavailable where the child is born to a mother married to another. Under Lehr and Michael H., when paternity schemes systematically and unfairly interfere with men who wish, or might wish, to pursue paternity opportunities, these schemes should fail. The Lehr court specifically recognized that governmental systems that likely omit many responsible fathers for reasons beyond their control can be procedurally inadequate. Unfortunately, many contemporary American paternity schemes are now out of control. They frequently omit many responsible fathers who have little or no control over the unique opportunity to develop a parent-child relationship. As well, often these omissions undercut rather than promote the general policies underlying paternity laws, including dual parenthood and equality. In particular, current state birth certificate, safe haven and adoption schemes are flawed under U.S. Supreme Court precedents like Parratt v. Taylor in 1981 and Monell v. Department of Social Services in 1978. Flawed paternity schemes can be easily fixed. Suggested reforms are presented after a brief review of control and the unique paternity opportunity interest under Lehr; the general requirements for procedurally adequate paternity regimes; the policies guiding contemporary American paternity laws; and, the deficiencies in current American birth certificate, safe haven and adoption schemes.