Injustice by Default

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."

Dad Blamed

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, 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.'"