ACF Responses to Comments on the 60-Day FRN

#	Date Submitted	State/Entity	Comment	Response
1	9/2/2020	Rhode Island	Good afternoon- The Uniform Parentage Act has been enacted in four states: Washington, Vermont, California, and Rhode Island. It will become effective in RI in January of 2021 after three years of introduction and testimony. The UPA is pending in six states: Colorado, Pennsylvania, Kentucky, Connecticut, Maine, Massachusetts. Further it is my understanding that two states: Nevada and Massachusetts have enacted gender neutral VAP laws. Child support and Vita Records staff are trying to assist same gender parents to acknowledge parentage within archaic laws, regulations and procedures. This issue no longer is focused on who the biological father is. The issue is enabling parents who wish to be responsible and accountable for the child a path or legal mechanism to do so. The Voluntary Paternity Acknowledgment proposed requirements recently published by OCSE for comment does not support the current family dynamic and excludes a segment of the population who simply wish to be legally declared intended parents and accountable for their children. I would suggest removing the terms “mother and father” throughout the acknowledgment form and substitute for the term “parent”. I would suggest changing the title of the form to Voluntary Acknowledgment of “Parentage” I would suggest removing the term “husband” and substituting “spouse”. Parentage and child support rules and regulations should be inclusive of all parents, fairly and equally applied, regardless of gender or the method by which they became parents. Thank you for considering my comments.	Thank you for your comments which we will consider in our future work. Title IV-D of the Social Security Act and related federal regulations set forth minimum paternity establishment requirements for state child support laws and programs. Section 466(a)(5)(C)(i) of the Social Security Act (Act) requires a state to have procedures for a "simple civil process for voluntarily acknowledging paternity under which the State must provide that, before a mother and a putative father can sign an acknowledgment of paternity, the mother and the putative father must be given notice, orally, or through the use of video or audio equipment, and in writing, of the alternatives to, the legal consequences of, and the rights (including, if 1 parent is a minor, any rights afforded due to minority status) and responsibilities that arise from, signing the acknowledgment." Section 466(a)(5)(C)(iv) of the Act requires states to "develop and use an affidavit for the voluntary acknowledgment of paternity which includes the minimum requirements of the affidavit specified by the Secretary under section 452(a)(7) of this title for the voluntary acknowledgment of paternity, and to give full faith and credit to such an affidavit signed in any other State according to its procedures." Section 452(a)(7) of the Act requires the Secretary of Health and Human Services to "specify the minimum requirements of an affidavit to be used for the voluntary acknowledgment of paternity which shall include the social security number of each parent and, after consultation with the States, other common elements as determined by such designee." OCSE recognizes that there are various family structures and that the statutory requirements for a Voluntary Acknowledgement of Paternity do not serve all families. OCSE does not prohibit states from including additional elements on the paternity acknowledgement affidavit. As long as a state is able to meet the requirements of section 466(a)(5)(C) of the Act and establish paternity in appropriate cases, a state may adopt a gender neutral acknowledgment law and procedure that allows for the establishment of parentage.
2	10/5/2020	American Public Health Association Caucus On Men’s Health	I am writing in my capacity as Chair-Emeritus of the American Public Health Association Caucus On Men’s Health and as a health care provider who has interacted with many men who are impacted by this policy. It is my experience and my observation in talking with many individuals who deal with paternity matters that Fathers are all too often appear to be considered incidental to the whole process of child rearing. It is distressing to learn that the current rules and system of child support enforcement treats the rights of the true and proper fathers what only can be considered laxity rather than with the seriousness that it involves. Everyone should agree that a diligent and rigorous process to establish true paternity is of paramount importance. Children have an innate need to connect to their true father whenever practical. The reasons for this are many including important sociologic factors such as the father’s ability to provide emotional support, physical care, links to other siblings and other relatives. In addition knowing the identity of the true father is an important link to family medical history information including genetic conditions, and numerous other important needs of the child which extend through their life. The bottom line is while it is important to “establish paternity,” it is of utmost importance to establish paternity accurately. Everyone engaged in child support enforcement knows that false paternity establishments are wide-spread and most often are targeted against low-income minority males who lack the resources to fight the injustice. There is a great deal of evidence that all too often paternity is incorrectly attributed either through poor processes, ignorance of situations or procedures or other non-intentional reasons. It is also a most unfortunate reality that a very small, but astonishingly notable, percentage of instances it is intentionally established falsely. The causes of false paternity are multifaceted but most agree that the current data elements required are far not adequate to deter false paternity establishments and thus lead to the bad outcomes of incorrect paternity establishment. I urge you to engage in a redesign of the data elements in a way that reflects the real world scenarios of how men know they have just fathered a child and how social services, health care and governmental agencies interact with the new father or identify the new father to establish legal paternity. One particularly poor practice is hospital staff pressuring a new mother’s non-father male friend who is present at birth to sign for paternity at the time of delivery. Unfortunately many well-meaning men improperly sign in a compassionate act to help the new mother and the hospital staff to “do the right thing to get the paperwork filed on time” when really it is the wrong thing for all concerned. Five areas for reform that you may wish to consider are: 1. The person identified for paternity must be informed outside of the presence of the mother that only DNA can establish paternity with accuracy. Further that man should be told that DNA testing is immediately available at no cost or minimal cost and that a DNA test is strongly recommended before signing any affidavit. 2. The proposed father must be informed of the laws of the state governing the effects of signing an acknowledgement of paternity and must be informed that it may become impossible to rescind this once it is signed and filed. 3. The proposed father must not be presented with an affidavit of acknowledgement prior to receiving counseling about the availability of DNA testing and the legal implications of signing , the need for DNA testing to assure accuracy, and the risks of making an emotional decision without the benefit of DNA confirmation. 4. Hospital staff must be properly trained in the implications of attestations of paternity and its implications and hospitals and other birthing facilities should incorporate the above into their standard policies and procedures. 5. Hospital and other birthing facility staff must be required to certify on the official medical record that elements 1-3 above have been met, that the hospital actively encouraged the proposed father to obtain DNA test results and that all hospital staff members having contact with the proposed father have been trained to vigorously work to prevent false paternity establishments.	Thank you for your comments which we will consider in our future work. OCSE agrees fully with the commenter that paternity establishment procedures should always be undertaken in an appropriate manner to ensure that paternity is established accurately. We thank the commenter for identifying five reform areas for the field to consider. Most of these reform suggestions are not currently required by federal law or regulation, such as mandatory genetic testing at no cost before signing any affidavit, so such reforms would require legislative or regulatory action to implement federally. However, for example, reform area #4, that hospital staff must be appropriately trained, is addressed in the regulation under 45 CFR 303.5(g)(6). For the complete regulation, see, 45 CFR 303.5(g) that requires states to operate voluntary establishment programs as follows: (g) Voluntary paternity establishment programs. (1) The State must establish, in cooperation with hospitals, State birth record agencies, and other entities designated by the State and participating in the State's voluntary paternity establishment program, a program for voluntary paternity establishment services. (i) The hospital-based portion of the voluntary paternity establishment services program must be operational in all private and public birthing hospitals statewide and must provide voluntary paternity establishment services focusing on the period immediately before and after the birth of a child born out-of-wedlock. (ii) The voluntary paternity establishment services program must also be available at the State birth record agencies, and at other entities designated by the State and participating in the State's voluntary paternity establishment program. These entities may include the following types of entities: (A) Public health clinics (including Supplementary Feeding Program for Women, Infants, and Children (WIC) and Maternal and Child Health (MCH) clinics), and private health care providers (including obstetricians, gynecologists, pediatricians, and midwives); (B) Agencies providing assistance or services under Title IV-A of the Act, agencies providing food stamp eligibility service, and agencies providing child support enforcement (IV-D) services; (C) Head Start and child care agencies (including child care information and referral providers), and individual child care providers; (D) Community Action Agencies and Community Action Programs; (E) Secondary education schools (particularly those that have parenthood education curricula); (F) Legal Aid agencies, and private attorneys; and (G) Any similar public or private health, welfare or social services organization. (2) The hospitals, State birth record agencies, and other entities designated by the State and participating in the State's voluntary paternity establishment program must, at a minimum: (i) Provide to both the mother and alleged father: (A) Written materials about paternity establishment, (B) The forms necessary to voluntarily acknowledge paternity, (C) Notice, orally or through video or audio equipment, and in writing, of the alternatives to, the legal consequences of, and the rights (including any rights, if a parent is a minor, due to minority status) and responsibilities or acknowledging paternity, and (D) The opportunity to speak with staff, either by telephone or in person, who are trained to clarify information and answer questions about paternity establishment; (ii) Provide the mother and alleged father the opportunity to voluntarily acknowledge paternity; (iii) Afford due process safeguards; and (iv) File signed original of voluntary acknowledgments or adjudications of paternity with the State registry of birth records (or a copy if the signed original is filed with another designated entity) for comparison with information in the State case registry. (3) The hospitals, State birth record agencies, and other entities designated by the State and participating in the State's voluntary paternity establishment program need not provide services specified in paragraph (g)(2) of this section in cases where the mother or alleged father is a minor or a legal action is already pending, if the provision of such services is precluded by State law. (4) The State must require that a voluntary acknowledgment be signed by both parents, and that the parents' signatures be authenticated by a notary or witness(es). (5) The State must provide to all hospitals, State birth record agencies, and other entities designated by the State and participating in the State's voluntary paternity establishment program: (i) Written materials about paternity establishment, (ii) Form necessary to voluntarily acknowledge paternity, and (iii) Copies of a written description of the alternatives to, the legal consequences of, and the rights (including any rights, if a parent is a minor, due to minority status) and responsibilities of acknowledging paternity. (6) The State must provide training, guidance, and instructions, which are reflected in a record, regarding voluntary acknowledgment of paternity, as necessary to operate the voluntary paternity establishment services in the hospitals, State birth record agencies, and other entities designated by the State and participating in the State's voluntary paternity establishment program. (7) The State must assess each hospital, State birth record agency, local birth record agency designated by the State, and other entity participating in the State's voluntary paternity establishment program that are providing voluntary paternity establishment services on at least an annual basis. (8) Hospitals, State birth record agencies, and other entities designated by the State and participating in the State's voluntary paternity establishment program must forward completed voluntary acknowledgments or copies to the entity designated by the State. If any entity other than the State registry of birth records is designated by the State, a copy must be filed with the State registry of birth records, in accordance with §303.5(g)(2)(iv). Under State procedures, the designated entity must be responsible for promptly recording identifying information about the acknowledgments with a statewide database, and the IV-D agency must have timely access to whatever identifying information and documentation it needs to determine in accordance with §303.5(h) if an acknowledgment has been recorded and to seek a support order on the basis of a recorded acknowledgment in accordance with §303.4(f).
3	10/1/2020	Office of Chief Legal Counsel Department of Revenue Child Support Enforcement	The Child Support Enforcement Division of the Massachusetts Department of Revenue (DOR) submits these comments on the proposed information collection activity regarding voluntary acknowledgment of paternity and the required data elements for paternity establishment affidavits, published at 85 Fed. Reg. 47216 on August 4, 2020. In general, we believe the current data elements properly balance between providing a well-defined voluntary acknowledgment process to expedite paternity establishment while providing information necessary to the proper performance of the child support agency. We write to suggest that OCSE consider amending the current data requirements to include gender neutral terminology to help ensure that all families have equal access to establish legal parentage. Diverse families represent an increasing segment of the child support agency's caseload across the country. The Supreme Judicial Court's decision in Goodridge v. DPH, 440 Mass. 309 (2003), brought Massachusetts to the forefront as one of the first states to recognize a constitutional right to same-sex marriage. The Supreme Court in Obergefell v. Hodges, 135 U.S. 2584 (2015) also recognized the right to same-sex marriage under the United States Constitution. Through legislation or judicial action many states have expanded legal parental status to individuals in familial configurations not originally contemplated when OCSE promulgated the required data elements back in 1998. For example, four states have enacted versions of the most recent Uniform Parentage Act and another seven states have similar pending legislation, including Massachusetts. While the courts provided couples with a means to define a legal relationship between each other, scientific advances in artificial reproductive technology also provided individuals with the means to become a parent in a multitude of ways. The biological parent may serve solely as a donor of genetic material or act as a surrogate mother, with no intention of becoming a legal parent. Conversely, legal parentage may be established for individuals absent any biological or genetic connection to the child. Some states and the Uniform Parentage Act recognize that more than two parents can be named legal parents. These social and scientific advances force states to examine the underlying processes conferring legal parental status as current practices may not adequately serve the needs of children brought into a diverse family structure. In Partanen v. Gallagher, 475 Mass. 632 (2016), the Massachusetts Supreme Judicial Court was asked to determine if a woman in a same sex relationship with no biological connection to two children could establish legal parentage under the non-marital children statute, Massachusetts General Laws Chapter 209C. They raised the children together for years but never formalized legal parentage through marriage, adoption, or court action. The court held that she could bring the legal action as the phrase "adjudication of paternity" was gendered and the statute provides a "means for establishing parentage regardless of the parent's gender". The court suggested that a voluntary acknowledgment of parentage process may be available to a same-sex couple to establish legal parentage, even if one member of the couple had no biological relation to the children. In response, Massachusetts developed and implemented a new gender neutral voluntary acknowledgment of parentage form that provides equal access for same sex couples to establish legal parentage. As the number of diverse families increase, states are faced with challenges to the traditional concept of establishing biological paternity through an acknowledgment. State courts and legislatures are recognizing that a broader concept of voluntarily acknowledging parentage is necessary to protect the best interests of children. Amending the data elements from the historical mother father relationship to gender neutral language will guarantee that the voluntary acknowledgment process is inclusive of all families and will safeguard the rights of some of our most vulnerable children.	Thank you for your comment. See response under item #1 above.
4	10/5/2020	ERICSA	Section 466(a)(5)(C) of the Social Security Act (42 USC §666(a)(5)(C)) requires a State have a procedure for voluntary Acknowledgment of paternity, permitting a mother and a putative father to voluntarily establish the paternity of a child born out of wedlock. Section 452(a)(7) of the Act (42 U.S.C. §652(a)(7)) requires the Secretary of Health and Human Services to "specify the minimum requirements of an affidavit to be used for the voluntary acknowledgment of paternity which shall include the social security number of each parent." These provisions were adopted in order to create a non-judicial way to use biological ties to recognize the legal father of a child, who is then vested with all of the legal rights, and obligations attached to that relationship. Given the varying familial structures that have been recognized in the evolution of modern family law, the focus on biological ties reflected in the existing Acknowledgment regime may be a hinderance to the goals of the program and the responsibilities of the agencies. 1. Is the proposed collection of information necessary for the proper performance of the functions of the (IV-D) agency? The proposed continued collection of the data set forth in Table 1 is necessary for the proper performance of the functions ofthe IV-D agency.This data provides the agency with the information necessary to fulfill its responsibility in establishing orders of support by identifying those individuals who are responsible for the support of the child, and information to assist in locating those individuals. 2. Is the estimate of the burden of the proposed collection of infonnation accurate? ERICSA takes no position on the time estimates, as we do not know how the estimate was determined. 3. The quality, utility, and clarity of the information to be collected as it stands, the data is clear for those states that-provide for an Acknowledgment of paternity executed between the biological mother and the biological father. 4. Are there ways to minimize the burden of collection of information on respondents? The collection of data is more burdensome in those states where an Acknowledgment of parentage is used as opposed to an acknowledgment of paternity. For parentage acknowledgments, the data does not translate, as one party may be designated as mother/biological mother, the other may only be designated by "parent." The data elements should be amended as explained below to minimize the burden of collection of information on child support programs using the parentage acknowledgment, in terms of requiring those programs to have to keep additional information from the form or interpolate from the data to re-categorize it to fit the reporting requirements. 5. Other concerns There is a need to modernize the "Complete List of Required and Optional DATA elements to reflect newly sanctioned ways to create the (legal) parent-child relationship." The requirement that the States adopt a simple, non-judicial process which would permit the biological mother of a child and that child's putative biological father to voluntarily establish the paternity of a child born out of wedlock has been a requirement of the IV-D program since 1996. The Acknowledgment process is supposed to recognize the biological and genetic ties between the parents and the child, but increasingly, parent-child relationships are being formed in ways that do not rely on such connections. The Acknowledgment process currently permits biological parents to establish legal ties to a child born out of wedlock to protect both the parents and the child. Except in a handful of states, the non­ judicial acknowledgment process focuses on biological ties to the child, probably to prevent non­ judicial "adoptions" of children born out of wedlock by requiring both parents be "biological" parents of the child. In practice, however, this has not always been the case; there are anecdotal reports that the "father" who signs the Acknowledgment is occasionally not the biological father of the child and both signatories knew it at the time the acknowledgment was executed. In the context of marriage, parent-child relationships may be established by one parent without a genetic tie to the child upon the marital presumption, so long as the spouse has that genetic linkage . One must wonder when the constitutional prohibition on disparate treatment of children born out of wedlock would compel the ability of the unmarried same-sex couple to use the same non-judicial process to recognize parentage. Section 301 of the 2017 version of the Uniform Parentage Act (UPA) extends the use of the acknowledgment process to A woman who gave birth to a child and an alleged genetic father of the child, intended parent under [Article] 7, or presumed parent may sign an acknowledgment of parentage to establish the parentage of the child. (Emphasis added) An intended parent is defined as "an individual, married or unmarried, who manifests an intent to be legally bound as a parent of a child conceived by assisted reproduction. Sec. 102(13). (Emphasis added) The UPA makes it clear that parentage can be established either by genetic ties to the child or by the intent of an individual, who may not genetically related to the child but actively participated in conceiving the child through assisted reproductive technology. The UPA allows both sets of parents to legally established parentage without participating in a court proceeding.In extendingthe acknowledgment process, the UPA uses intent to parent as a substitute for biology in determining who may establish their parentage of a child. At present, California, Massachusetts, Nevada, Vermont, Maryland, and Washington permit certain same-sex parents to use a voluntary Acknowledgment of parentage process to establish a legal tie for the parent who does not have a biological tie to the child. In January 2021, Rhode Island also will permit same sex parents to use a voluntary acknowledgment of parentage process to legally establish parentage. In February 2021, New York will change its form and terminology from Acknowledgment of Paternity to Acknowledgment of Parentage as part of the newly adopted "Child­ Parent Security Act", joining the seven states listed above in offering an out of court option to same­ sex parents to establish their legal tie to a child. We anticipate more states will follow, inasmuch as legislation to adopt the UPA was introduced in six states. History has shown that the law in this area, while slow moving, has been moving along an arc that expands the ability of individuals to form legally binding familial relationships without the need to use the civil court system. ERICSA believes it is time that OCSE revise the "Complete List of Required and Optional Data Elements" to reflect this development. A non-judicial process to determine who is legally the parent of a child should not be limited to those children born "out of wedlock" to a biological mother and a biological father. If two individuals, one of whom gave birth to the child, wish to establish a legal relationship to that child taking on all legal indicia of parenthood, the same opportunity to do so through a simple, out of court process should be available. ERICSA urges OCSE to produce a more inclusive list of mandatory data that would reflect the changes that have occurred since the original listwas developed. Among other things, this will allow states to use of the voluntary acknowledgment of parentage as opposed to the voluntary acknowledgment of paternity to maintain a single data set.	Thank you for your comment. See response under item #1 above.