Paternity Determinations in Washington: Balancing the Interests of All Parties

• Publication year: 1985

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 8, No. 3SPRING 1985

Paternity Determinations in Washington: Balancing the Interests of All Parties

I. Introduction

The law is gradually recognizing that the nonmarital(fn1) child has the same legal rights as the marital child. A growing number of United States Supreme Court decisions have applied the equal protection clause of the fourteenth amendment to strike down state statutes that discriminate against nonmarital children.(fn2) Many states have passed legislation expressly granting nonmarital children legal equality with marital children.(fn3) Such changes are especially necessary because as premarital sexual activity has increased in recent years, so have out-of-wedlock pregnancy and childbearing.(fn4) The Census Bureau reports that in the last forty years the percentage of nonmarital births in the United States has doubled;(fn5) the 1980 census reported 24,945 nonmarital children living in the State of Washington.(fn6) Because forty-five percent of children living in single-parent homes in which the parent is female live below the federally determined poverty level,(fn7) a nonmarital birth affects not just the child, the mother, and the alleged father, but the state taxpayers as well.

The first step in a nonmarital child's struggle for equality usually is a legal determination of the child's father.(fn8) This Comment focuses on paternity determinations and on the parties who have an interest in those determinations. The defendant has an interest in procedural protection because he may not be the child's father.(fn9) The child and the mother have an interest in the child's monetary support. The state also has an interest in the child's support because, according to one survey, more than forty-five percent of all Aid to Families of Dependent Children (AFDC) families have at least one nonmarital child.(fn10)

On two occasions, the State of Washington, through the Department of Social and Health Services (DSHS), has sought an administrative determination of paternity, basing its claim on implied statutory authority.(fn11) In both cases, the Washington courts held that administrative determinations are not permitted because such authority was neither express nor implied in the statutory language.(fn12) Despite this conclusion, administrative determinations of paternity are needed. The Washington State Legislature should adopt a scheme that provides such hearings in those situations in which the defendant's rights are not compromised.

The state and all parties in a paternity proceeding may benefit from a more efficient, administrative approach to paternity adjudication if certain procedural safeguards are assured the defendant. Section II of this Comment sketches the development of common-law and statutory rights of paternity actions in Washington. Section III examines the interests of each party in a paternity action. Section IV discusses the advantages of an administrative hearing. Section V suggests procedural safeguards for the defendant and proposes a framework for administrative determinations of paternity that is consistent with the interests of all parties. Administrative hearings in such circumstances are preferable because the overwhelming number of paternity actions are prosecuted by the state in an effort to recover the funds that it expends on AFDC children.(fn13) Administrative law judges specializing in paternity determinations would provide prompt, efficient case handling in an informal, less expensive environment.

II. Development of Common-Law and Statutory Paternity Actions in Washington

In Washington, paternity actions are not monolithic in nature. They arise as statutory(fn14) and common-law(fn15) causes of action and include civil(fn16) as well as criminal proceedings.(fn17) Paternity actions may be initiated by the child, the child's guardian, the mother, the father or an alleged father, the state, or any interested party.(fn18)

Underlying a child's right to bring a paternity action are both the child's right to parental support and the state's interest in requiring parents to support their children. Washington law affords all children a right to parental support(fn19) that may be enforced in the courts.(fn20) Marital children may enforce this support right merely because of the established legal relationship that exists between parent and child at the time of birth.(fn21) Nonmarital children first face the more difficult task of establishing paternity in order to enforce their support right.(fn22) In most states, legislation has facilitated the procedure for determining paternity.(fn23) Moreover, as a supplement to statutory law, some states recognize a common-law right to support that is fundamental for all children.(fn24)

Washington recognizes paternity actions premised both on the common-law fundamental right theory and on statutory enactments. Although a nonmarital child's common-law right to support was not recognized in Washington until 1974,(fn25) paternity statutes were enacted in 1881.(fn26) The primary purpose of the statutes was to establish the existence of the father-child relationship and thereby reduce the public burden of supporting nonmarital children.(fn27) This same purpose underlies current law.(fn28) In addition to the support function, however, paternity statutes serve other purposes: to establish the custody and guardianship of the child;(fn29) to establish visitation privileges with the child;(fn30) to protect the child's status as an heir;(fn31) and to assist the mother in fulfilling her child support, care, and education obligations.(fn32)

In contrast to the early statutory recognition of a paternity cause of action, the United States Supreme Court did not recognize a nonmarital child's right to paternal support until 1973.(fn33) In Gomez v. Perez,(fn34) the Court held that once a state granted marital children an enforceable right to paternal support, it could not deny such a right to nonmarital children without violating the equal protection clause of the fourteenth amendment.(fn35) This holding was reinforced in Washington in Kaur v. Chawla,(fn36) in which the court of appeals asserted that because the common law entitles marital children to judicially enforceable support by their natural fathers, nonmarital children are similarly entitled.(fn37) The Kaur court concluded that a child's right to support is fundamental; once paternity has been established, the nonmarital child's right to support is coextensive with that of the marital child.(fn38)

The child's right to compel paternal support in Washington continues throughout the child's minority.(fn39) As a consequence of characterizing the child's support right as fundamental and continuing throughout minority, the Washington courts gradually have moved away from a statute of limitations on paternity actions.(fn40) In so doing, the courts have relied primarily on the public policy reasons underlying the enactment of paternity statutes.(fn41) Furthermore, Washington's tolling of the statute of limitations was based on constitutional grounds(fn42) and now is supported by federal statutory enactments.(fn43) Because no limitation of action exists on the marital child's ability to enforce the support right,(fn44) a state's application of a statute of limitations to paternity actions potentially allows different treatment of two classes of children.(fn45) Equal protection challenges(fn46) to such state legislative classifications have been successful.(fn47)

When the statute of limitations is tolled during the child's minority, the child(fn48) becomes the real party in interest in a paternity proceeding.(fn49) The child's interests in determining his or her natural father and obtaining financial support(fn50) outweigh the interests of other parties, including the state's interest in securing a support obligor,(fn51) the mother's interest in settling the claim,(fn52) and the defendant's interest in procedural fairness.(fn53) The Washington Legislature and the courts have delicately balanced the interests of the parties in paternity actions by adopting the Uniform Parentage Act (UPA).(fn54) The recognition that the child's interest is superior, however, need not leave the other parties unprotected.

III. Interests of the Parties in a Paternity Action

The statutory scheme developed by the State of Washington represents a legislative attempt to balance the interests of the parties in a disputed paternity proceeding. Washington's adoption of the UPA in 1976 provides the basis for this interest balancing. In Washington, the child is perceived as the real party in interest in a paternity determination.(fn55) The child's superior interest is not questioned here because it is firmly rooted in the common-law concept that all children have a right to parental support.(fn56) The other parties in a paternity determination, however, have interests that may be advanced and protected without diminishing the child's superior interest.(fn57)

An example of balancing all parties' interests in a paternity action is found in the UPA's treatment of a statute of limitations. The UPA effectively eliminated such limitations(fn58) in an attempt to balance the rights of the child against the state's interest in preventing stale and fraudulent claims.(fn59) Although the UPA approach makes sense because the child requires support until...