David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
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This Article analyzes the issue of paternity disestablishment, an issue courts and legislatures have been struggling with over the last several years. For a variety of reasons explored in this Article, an increasing number of fathers have filed requests to set aside paternity orders seeking to be relieved of the legal obligations of fatherhood. As a result families have been destabilized and children are becoming fatherless. The implications for the future of the family are profound. Although some scholars have examined this phenomenon, none have addressed the link between paternity disestablishment and welfare reform. This Article explores the law's evolving definition of fatherhood and concludes that the law's response to the paternity disestablishment crisis threatens to impose a narrow definition of fatherhood based on biology. This new definition of fatherhood has not developed to serve any of the traditional goals of family law, protecting children and preserving family stability. Rather, this trend appears to be one of the unintended consequences of two decades of federal and state policy designed to reform the nation's welfare system. The broad goals of these policies may be well founded. But modern child support enforcement policy, so central to welfare reform and aimed most aggressively against low income fathers, is pushing fathers to seek disestablishment of paternity. In response, courts and legislatures are reinstating a construct of paternal functions defined in economic terms and grounded in biology. This new definition of fatherhood ignores other bases for fatherhood based on marriage, care taking or both. As a result, the state's interests in collecting child support, protecting children and preserving families are undermined by the very laws that should protect those interests.
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