Parentage Flashcards
What is a nonmarital child?
A nonmarital child (sometimes called an illegitimate child or a child born out of wedlock) is one born to an unmarried woman.
What level of scrutiny are nonmarital children regulations/laws subject to?
Distinctions between marital and nonmarital children are subject to intermediate scrutiny
Intermediate Scrutiny Test — The law/regulation must be:
- Substantially Related to
- An important governmental interest
The Supreme Court will not uphold discriminatory legislation intended to punish the offspring of illicit relationships. Thus, the Court has held that:
- Nonmarital children cannot be precluded from inheriting from their fathers
- Statutes of limitations on paternity suits are discriminatory
- Nonmarital children have the same right to child support as marital children
- Government benefits may not be denied to nonmarital children merely because they are born out of wedlock
- Nonmarital children may not be precluded from suing for a parent’s wrongful death
What is a Parentage Action?
Parentage actions can be brought to establish a biological relationship and settle issues of paternity or maternity, usually the former. Once there’s a finding of parentage, that person has rights to custody and visitation in addition to a duty to pay support.
What is the Presumption of Parentage?
Typically, the mother’s husband is presumed to be the father of a child if the child is born:
- During the marriage OR
- Within 300 days of the marriage’s termination
This is true even if the marriage is void or voidable.
What is the Rules for Unwed Parents regarding Parentage?
Unwed Mother — Under most state statutes, EVERY child is the lawful child of his mother.
Unwed Father — The child is the awful child of an unwed father only if:
- The parents married after the child’s birth
- The father holds the child out as his biological child
- The father consents to be named on the birth certificate
- The father formally acknowledges paternity or
- There is a court order establishing paternity
What is a Parentage Suit?
A paternity suit seeking support may be brought by the child, the mother, or the state (if the child is receiving support from the state). Once paternity is established, the duty of support attaches, and the father may assert rights to visitation and custody. A paternity action can also be used to allow the child to inherit.
Are Parents Allowed to Terminate their Parental Rights?
YES! Parents may voluntarily relinquish all rights to their children (often done in preparation for adoption). Because the right to raise one’s children is a fundamental constitutional right, parents must have due process before their rights can be terminated involuntarily.
- Grounds for termination must be proved by clear and convincing evidence
What are the Grounds for Involuntary Termination of a Parent’s Parental Rights?
Grounds for involuntary termination include:
- Infliction of serious physical harm on the child, including sexual abuse
- Abandonment
- Neglect or deprivation (failure to meet minimum standards of care)
- Failure to provide support without justifiable cause
- Mental illness or retardation so severe as to make the parent incapable of caring for the child
- Parental unfitness (conduct by the parent that seriously harms the child physically or psychologically
What are the Requirements for Adoption?
1) Termination of Natural Parents’ Rights: The consent of the child’s natural parents is generally required. Parental consent is not necessary if parental rights have been terminated.
- The parental consent requirement may be waived if the court concludes it is being unreasonably withheld against the best interest of the child (for example, natural parent has deserted the child).
- A nonconsenting parent is entitled to notice of the hearing and an opportunity to be heard.
2) Creation of New Parental Rights: Often, prospective adoptees over a certain age (usually 12 or 14) MUST also consent to their own adoption.
- Home Studies, Investigation, and Court Approval: Most states require that there be an investigation of the suitability of the proposed adoption, and approval of the adoption by the court. This may be waived for relative adoptions.
Consent of Unmarried Fathers: In deciding whether an unwed father can veto a prospective adoption, the court considers the level of the father’s involvement with the child, such as whether he lived with and cared for the child, visited the child regularly, admitted paternity, or paid child support.
How is the Parent-Child Relationship Established when Dealing with Assisted Reproduction?
Assisted Reproduction includes the following methods — Artifical insemination, In Vitro Fertilization, or Embyro Transplanation
Under the Uniform Parentage Act, the parent-child relationship is established between an individual and a child by:
- Having given birth to the child (except in cases governed by a surrogacy agreement)
- Adjudication of a woman’s maternity
- Adoption by the mother
- Adjudication confirming mother of child born to a gestational surrogate
- A husband who is married to a woman who has a child through assisted conception is the child’s father unless he proves his lack of consent within two years after birth
What is the Rule for Gamete Donors?
Egg or sperm donors (that is, donors who produce an egg or sperm used for assisted reproduction without the intent to be a parent) are NOT parents of a child conceived through assisted conception.
- Posthumous Conception: If a gamete provider consented in writing that their gametes could be used after death to conceive a child, that child can be considered the child of a deceased parent. This means the child has full inheritance rights and social security benefits, at least in some states.
What are the 2 kinds of Surrogacy?
Genetic Surrogacy (often referred to as “traditional” surrogacy) — Where a woman who is not an intended parent agrees to become pregnant through assisted reproduction using her own gametes
Gestational Surrogacy — Where a woman who is not an intended parent agrees to become pregnant through assisted reproduction using gametes that are not her own.
What are the Requirements to have a Valid Gestational Carrier Agreement?
Most states only allow gestational surrogacy. To be valid, a gestational carrier agreement must:
- Be in writing and approved by the court
- Be accompanied by a child welfare agency home study unless waived
- Be voluntary
- Make provision for healthcare costs until birth
- For constitutional reasons, not limit the rights of the surrogate to make healthcare decisions
- Provide reasonable consideration if the surrogate is promised consideration.
