Parentage

Question 1

Nonmarital Children

Answer 1

• nonmarital child = one born to an unmarried woman

Question 2

Nonmarital Children - Constitutional Limits on Discrimination

Answer 2

• 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

Question 3

Nonmarital Children - Particular Court Holdings

Answer 3

• 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

Question 4

Parentage Actions Generally

Answer 4

• 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

Question 5

Presumption of Parentage

Answer 5

• 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

Question 6

Paternity Disestablishment

Answer 6

• 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

Question 7

Unwed Fathers

Answer 7

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

Question 8

Rights of Unwed Fathers

Answer 8

• 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

Question 9

Paternity Suits

Answer 9

• 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

Question 10

Paternity Suits - Statute of Limitations

Answer 10

• since statute is tolled during child’s minority, limitations period will be at least 18 years

Question 11

Paternity Suits - Evidence

Answer 11

• 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

Question 12

Citizenship of Child Born Abroad to Unmarried American parent

Answer 12

• 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

Question 13

Termination of Parental Rights Generally

Answer 13

• 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

Question 14

Grounds for Involuntary Termination

Answer 14

• 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

Question 15

Types of Adoption

Answer 15

• agency adoption -> licensed adoption agencies act as intermediaries in the adoption
• private adoption -> private persons act as intermediaries to arrange adoption

Question 16

Requirements for Adoption

Answer 16

• termination of natural parents’ rights
• creation of new parental rights

Question 17

Adoption - Termination of Natural Parents’ Rights

Answer 17

• 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

Question 18

Adoption - Consent of Unmarried Fathers

Answer 18

• 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

Question 19

Creation of New Parental Rights

Answer 19

• 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

Question 20

Confidentiality of Adoption Proceedings

Answer 20

• records of adoption cases are sealed
• in most states, info contained in them isn’t available to public or adoptees

Question 21

Consequences of Adoption

Answer 21

• 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

Question 22

Venue

Answer 22

• 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

Question 23

Violation of Adoption Statute

Answer 23

• often punishable as a crime

Question 24

Assisted Reproduction

Answer 24

• 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

Question 25

Parent-Child Relationship in General

Answer 25

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

Question 26

Gamete Donors

Answer 26

• 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

Question 27

Posthumous Conception

Answer 27

• 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

Question 28

Genetic Surrogacy

Answer 28

• woman who isn’t intended parent agrees to become pregnant through assisted repro using her own gametes

Question 29

Gestational Surrogacy

Answer 29

• woman who isn’t an intended parent agrees to become pregnant through assisted repro using gametes that aren’t her own

Question 30

Validity of Gestational Agreement

Answer 30

• 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

Question 31

Termination of Gestational Agreement

Answer 31

• can be terminated by any of the parties at any time before embryo transfer

Question 32

Result of Gestational Agreement

Answer 32

• 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

Question 33

Ownership of Fertilized Ovum In Vitro

Answer 33

• 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