Filiation Proceedings

Question 1

Filiation Proceedings

Answer 1

A. Definition (children born out of wedlock)

B. Presumption of legitimacy

C. Filiation proceedings

D. Legitimation

E. Constitutional limits on Discrimination

F. Other Issues

Question 2

B. Presumption of legitimacy

Answer 2

Presumptions

• Birth in wedlock
  
  • Rebuttable presumption father is husband
• Child born before marriage
  
  • Where father marries mother
  • and asserts paternity
• Child born after annulment, divorce, or separation
  
  • conceived during wedlock and born within 300 days
• Child conceived during one marriage but born during another
  
  • First husband father, may be general rebuttable presumption

Question 3

C. Filiation proceedings

Answer 3

• Who may maintain?
  
  • any party with an interest
• Parties
  
  • Required joinder
    
    • Mother of child AND
    • Man whose paternity to be adjudicated
• PJ over defendant
  
  • Under UIFSA
    
    • Minimum contacts: Sex in state that may have conceived child
• SOL
  
  • Child without a father= at any time
  • Having a father= within 2 years of birth
    
    • No limit if Father never held out to be father and Evidence of non-cohabitation at conception
• Admissible Evidence
  
  • Statements made about paternity
  • resemblance
  • medical records/testimony
  • blood or genetic testing
    
    • court can decline if child has presumed or acknowledged father. ie:
      
      • Mother and father estopped from denial AND
      • Inequitable to deny father -child relationship

Question 4

D. Legitimation

Answer 4

Act of giving character to children who were not.

1. Voluntary acknowledgement of paternity- man presumed natural father after birth:
   
   1. marries mother AND
   2. Voluntarily asserted paternity
      
      1. writing filed
      2. named on BC
      3. Written promise to support as own.
2. OR Judicial decree Establishing paternity

Question 5

E. Constitutional limits on Discrimination

Answer 5

• Discrimination against non marital children= intermediate
• Unmarried parents
  
  • Unmarried father’s due process rights
    
    • Full commitment required
    • irrebutable presumption for father if mother doesn’t join petition
    • SOL ok
• Tort recovery for non marital child
  
  • Mother=yes
  • Father= only if paternity established
• Citizenship of child born abroad to unmarried american parents
  
  • mother=automatic grant of citizenship
  • Father= only if paternity established

Question 6

F. Other Issues of filiation proceedings.

Answer 6

• Child of Assisted Reproduction
  
  • donor not a parent unless consenting
  • Consenting Husband is father (writing, and doctor inceminated)
  • Revocation of consent- anytime prior to placement
    
    • Not a parent to child
    • dissolution of marriage before, not a parent
    • Death, not a parent unless record made
• Gestational Agreement (see below)