Injustice by Default

How the effort to catch "deadbeat dads" ruins innocent men's lives

Matt Welch from the February 2004 issue

(Page 2 of 4)

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 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.

Paternity Test

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.