Parentage Flashcards
Nonmarital Children
- nonmarital child = one born to an unmarried woman
Nonmarital Children - Constitutional Limits on Discrimination
- distinctions between marital + nonmarital children are subject to intermediate scrutiny -> must be substantially related to an important gov interest
- SCOTUS won’t uphold discriminatory legislation intended to punish offspring of illicit relationships
Nonmarital Children - Particular Court Holdings
- nonmarital children can’t be precluded from inheriting from their fathers
- statutes of limitations on paternity suits are discriminatory
- nonmarital children have same right to child support as marital children
- gov benefits may not be denied to nonmarital children merely b/c they’re born out of wedlock
- can’t be precluded from suing for a parent’s wrongful death
BUT b/c of plenary power over immigration, SCOTUS upheld fed law granting immigration preferences to marital children
Parentage Actions Generally
- can be brought to establish a biological relationship + settle issues of paternity or maternity, usually the former
- once there’s a finding of parentage, that person has rights to custody + visitation in addition to a duty to pay support
Presumption of Parentage
- typically, mother’s husband is presumed to be the father of a child if the child is born w/in 300 days of the marriage’s termination
- true even if the marriage is void or voidable
Paternity Disestablishment
- most states refuse to terminate an established parent-child relationship, especially after the passage of some time, even if husband can prove he’s not the child’s biological father
- some states have made it possible for men, even fathers of marital children, to establish nonpaternity
- rebutting the presumption of parentage generally requires clear + convincing ev
-> in that case, paternity disestablished + any child support obligation eliminated
Unwed Fathers
Child is lawful child of unwed father only if:
- parents married after child’s birth
- father holds the child out as his biological child
- father consents to be named on the birth certificate
- father formally acknowledges paternity OR
- there’s a court order establishing paternity
- note that under most state statutes, every child is the lawful child of its mother
Rights of Unwed Fathers
- protected by Due Process Clause
- can have rights to custody if they demonstrate parental responsibility
- includes acknowledgement of paternity as well as supervision, education, protection, care + support of the child
- to have due process rights regarding a newborn, unwed father must be willing to assume custody of the child + not merely block adopting by others
-> other considerations include publicly acknowledging paternity, paying pregnancy + birth-related expenses, taking steps to establish legal responsibility for the child, + showing a commitment to the child
Paternity Suits
- suit seeking support may be brought by the child, the mother, or the state
- once paternity is established, the duty of support attaches, + the father may assert rights to visitation + custody
- a paternity action can also be used to allow the child to inherit
Paternity Suits - Statute of Limitations
- since statute is tolled during child’s minority, limitations period will be at least 18 years
Paternity Suits - Evidence
- states vary on the level of proof required to establish paternity
- some require clear + convincing ev, but preponderance of the ev standard has also been upheld
- most states use blood + tissue sampling, but testimonial + other med ev has been deemed suff
-> BUT if genetic tests show def can’t be the father, the case must be dismissed
Citizenship of Child Born Abroad to Unmarried American parent
- when American woman gives birth abroad, her child may be granted US citizenship w/o formally establishing her parentage
- BUT when child of an unmarried American man is born abroad, father must take specific steps to establish his paternity in order to make his child a US citizen
Termination of Parental Rights Generally
- parents may voluntarily relinquish all rights to their children
-> often done in preparation for adoption - must have due process before rights can be terminated involuntarily
-> need clear + convincing ev
-> includes right to counsel
Grounds for Involuntary Termination
- infliction of serious physical harm on the child
- abandonment
- neglect or deprivation (failure to meet minimum standards of care)
- failure to provide support w/o 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
- ultimate goal is typically to reunite parent + child after temporary separation
Types of Adoption
- agency adoption -> licensed adoption agencies act as intermediaries in the adoption
- private adoption -> private persons act as intermediaries to arrange adoption
Requirements for Adoption
- termination of natural parents’ rights
- creation of new parental rights
Adoption - Termination of Natural Parents’ Rights
- consent of natural parents is generally required
-> not necessary though if parental rights have been terminated
-> may also be waived if court concludes being unreasonably withheld against best interest of child - nonconsenting parent is entitled to hearing + notice + opportunity to be heard
Adoption - Consent of Unmarried Fathers
- in deciding whether unwed father can veto adoption, court considers level of father’s involvement w/ the child, such as whether he lived w/ or cared for the child, visited the child regularly, admitted paternity, or paid child support
- re newborn infant, father’s rights depend on manifestations of parental responsibility
- father who has never attempted to establish legal or personal relationship w/ that child has no right to notice prior to adoption of the child by others
Creation of New Parental Rights
- often, prospective adoptees over a certain age (usually 12 or 14) must consent to their own adoption
- most states require investigation of the suitability of the proposed adoption, + approval of the adoption by the court
-> may be waived for relative adoptions
-> home studies + investigations - most states prohibit payment of $ to natural parents other than medical costs related to pregnancy
Confidentiality of Adoption Proceedings
- records of adoption cases are sealed
- in most states, info contained in them isn’t available to public or adoptees
Consequences of Adoption
- new birth cert issued upon adoption -> lists adoptive parents as child’s parents
- adoption results in termination of biological parents’ rights + obs, + creates new rights + obs in adoptive parents
- in some states, adoptive child can still inherit from biological parent
Venue
- most states require that the person seeking to adopt be a resident of the county where the petition is filed
- some states permit filing in the county where the child resides or where the office of the child placement agency is located
Violation of Adoption Statute
- often punishable as a crime
Assisted Reproduction
- no problem when only intended parents are involved in the procedure
- Uniform Parentage Act (UPA) drafted to deal w/ consequences when third parties involved, but not yet adopted in many states -> discuss general principles and UPA if jurisdiction unspecified
Parent-Child Relationship in General
Under UPA, parent-child relationship established between indiv + 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
- husband who’s married to a woman who has a child through assisted conception is the child’s father unless proves lack of consent w/in 2 yrs after birth
Gamete Donors
- egg or sperm donors are not parents of a child conceived through assisted conception
- some jurs allow sperm donor to have rights if agreed in writing by the donor + the woman
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
- means the child has full inheritance rights + social security benefits in some states
Genetic Surrogacy
- woman who isn’t intended parent agrees to become pregnant through assisted repro using her own gametes
Gestational Surrogacy
- woman who isn’t an intended parent agrees to become pregnant through assisted repro using gametes that aren’t her own
Validity of Gestational Agreement
- most states only allow gestational surrogacy
To be valid, agreement must:
- be in writing + approved by the court
- be accompanied by child welfare agency home study unless waived
- be voluntary
- make provision for healthcare costs until birth
- not limit right of surrogate to make healthcare decisions (for constitutional reasons)
- provide reasonable consideration if surrogate is promised consideration (varies considerably among states)
- subsequent marriage or divorce of intended parents doesn’t invalidate the agreement
Termination of Gestational Agreement
- can be terminated by any of the parties at any time before embryo transfer
Result of Gestational Agreement
- if agreement is unenforceable, the gestational mother is considered the mother of the child, regardless of biology
- if agreement is approved, intended parents must file notice of birth + court will issue order of parentage
Ownership of Fertilized Ovum In Vitro
- cryogenically preserved product of in vitro fertilization poses many difficult q’s, particularly when couple divorces or dies
- q’s include whether the embryo is the property or a person, + who will decide whether any transplantation will take place
