Statement of Emily Gunston
Deputy Attorney General for Legislative Affairs and Policy
Office of the Attorney General for the District of Columbia
Before the Committee on the Judiciary and Public Safety
Honorable Charles Allen, Chairperson
Public Hearing on
B24-0656, the “Paternity Establishment Amendment Act of 2022”
Thursday, May 5, 2022
Good afternoon, Chairman Allen and Councilmembers. My name is Emily Gunston, and I am Deputy Attorney General for Legislative Affairs and Policy at the Office of the Attorney General for the District of Columbia (OAG). Thank you for holding a hearing on B24-0656, the “Paternity Establishment Amendment Act of 2022.” This bill includes small but important updates to the District’s paternity statutes that will help ensure that children get the financial support they need from their parents. OAG introduced this important legislation to better support vulnerable District families, and we urge the Council to pass it.
OAG works to support children and families by ensuring children receive financial support from both of their parents. The first step in this process is establishing who the legal parents of the child are. Sometimes the law presumes a parent, such as when a child is born to parents who are married or in a domestic partnership, or where a married couple together adopts a child. In other instances, steps must be taken to establish legal parenthood. Heterosexual parents who are unmarried when they have a child can establish legal paternity of the child by together executing an acknowledgement of paternity (AOP)—a written statement signed under oath by both parents that sets forth who the child’s father is. The AOP provides that father with rights and obligations related to that child. The purpose of an AOP is to provide a path to establish parentage without a lengthy, cumbersome, or expensive court process when both parents agree on paternity. Once an AOP has been validly executed, it is binding and may not be undone unless a court finds that there was fraud, duress, or a material mistake of fact when the parties executed the AOP. This is purposeful and appropriate. Once someone has legally agreed to parent a child, they cannot simply change their minds and abandon that child. They still owe that child—at the very least—financial support.
That said, we know that there can be errors in the AOP process. Sometimes, for example, one or both parents are mistaken about who the biological father is at the time the AOP is executed, and the mistake may not be discovered for months or years. These errors, whether intentional or inadvertent, can deny a biological father his parental rights while allowing someone without a genetic relationship to claim rights related to a child. These errors may also deprive a child of knowledge of who their biological father is, a relationship with a biological parent, critical medical knowledge, and needed financial support.
The existing law surrounding AOPs does not effectively account for the now ready availability of DNA evidence in determining paternity when it is challenged. The existence of modern DNA science allows for the conclusive determination of paternity. But when an AOP is called into question, current law does not allow the court to order DNA testing or provide a clear path for the court to consider DNA evidence that establishes that the AOP signatory is not the biological father. The proposed changes reflected in this bill would provide that clarity and would allow for court-ordered DNA testing.
To be sure, these changes only relate to paternity that is established by an AOP (or, in some instances, court adjudication). They would not have any effect on paternity established through marriage, domestic partnership, or adoption. And they will not affect an AOP where no one with a stake in the parenthood determination is challenging the AOP. These changes relate to the narrow set of circumstances in which paternity has been established through an AOP (or court adjudication) and someone—for example, someone asserting he is the biological father and wanting to assert his parental rights and obligations—challenges the AOP or the adjudication.
One important change the bill would make is to allow the court to order DNA testing to determine biological paternity when an AOP is being challenged. Under current law, where there is a validly executed AOP, the court cannot order DNA testing, even where testing is requested by the child, the mother of the child, a person who believes he is the biological parent of the child, or the person who signed the AOP. So, for example, if a person believes he is the biological father of a child—and wants to take responsibility for the child—but someone else has claimed to be the father and has executed a valid AOP, the court cannot order genetic testing to determine who the biological father is. This bill clarifies that a child, a mother, an AOP signatory, or a person with a reasonable factual basis to believe he is the biological parent may request that the court order testing, even where there is an AOP. Regardless of the DNA test results, the court would not be required to undo the AOP. To do that, the court still would need to find that there had been fraud, duress, or material mistake of fact in the execution of the AOP. It simply would allow the court to order DNA testing so that it can consider evidence of biological parentage in making that finding.
A second change the bill would make would require the court to consider DNA evidence regarding whether the person who signed the AOP is the father where such evidence is available and where the court is determining whether there was fraud, mistake, or material mistake of fact in the execution of the AOP. Again, the bill does not require the court to find there was fraud, mistake, or material mistake of fact, but it would require the court to consider this biological evidence of parentage in making the determination.
Accurate establishment of biological paternity, when it is challenged, benefits families and children. Ensuring that paternity is accurately established builds parents’ trust in the child support system and helps ensure children are supported. These proposed changes will better reflect modern science, provide needed guidance to the court, and will allow the court to exercise its discretion in the best interest of the child. These changes also would align District law with the many other states that have updated their laws, including New York, California, Massachusetts, Virginia, and Maryland, all of which allow a court to consider DNA evidence when considering whether to set aside an AOP.
I thank the Council for considering this important legislation. I’d also like to thank and recognize the important work of the Legal Aid Society of the District of Columbia and Bread for the City Legal Clinic, who have helped raise this important issue and with whom OAG worked to develop these commonsense proposals to better support vulnerable children and families. We will continue to work with these dedicated advocates, District families, the Council, and other stakeholders to evaluate and make proposals to improve the District’s child support system. I am available for questions, as are my colleagues in OAG’s Child Support Services Division.