Nonmarital Children Flashcards
What is the definition of a nonmarital child?
Born to an unmarried woman
What is the presumption for children of married women?
Presumed to be the child of the spouse
What constitutional protections exist for nonmarital children?
Distinctions between marital and nonmarital children are subject to intermediate scrutiny and stricken unless the action is substantially related to an important government interest
No punishment of nonmarital children — cannot be precluding from inheritance, no statutes of limitation on paternity suits, same right to child support and government benefits, cannot be precluded from suing for parent’s wrongful death
**Congress has plenary power over immigration and can grant immigration preferences to marital children
What are the tort recovery rights for unmarried parents?
In a wrongful death suit for the child, the unmarried mother may recover but the unmarried father may be precluded if he did not legally recognize the child
What is the citizenship of a child born abroad to an unmarried american parent?
Unmarried American mother: citizenship doesn’t formally require parentage
Unmarried American man: formal/procedural requirements to make the child a citizen
What are the due process rights of an unwed father?
If part of the family unit, the father-child relationship is protected by due process if he has committed to and participated in parenthood.
Unwed father has due process rights re: a newborn if he is willing to assume custody himself rather than merely block another’s adoption
Other considerations: public acknowledgment of paternity, payment of pregnancy and birth expenses, and other evidence of legal and real commitment to the child
When is a child the lawful child of their father?
Though always the lawful child of the mother, a child is the lawful child of his father at birth only if:
(1) parents married after birth
(2) father holds child out as biological child, consents to be on the birth certificate or other formal acknowledgment
(3) judicial decree establishing paternity
When may a paternity suit be brought?
Mother, child, or state (if child receiving state support) may bring a paternity suit in order to establish father’s duty of support (will also be accompanied by rights of visitation and custody)
Statute of limitations tolled during child’s minority
What is the required proof to establish paternity?
Most states require clear and convincing evidence, usually genetic. Some only require preponderance
A genetic test showing the defendant cannot be the father = dismissal
What happens the records of paternity suits?
Usually sealed
