Parents and Children Flashcards
Presumption of Marital Legitimacy/Paternity
Children born to or conceived by a woman while she is married are the children of the woman and her spouse.
This presumption of marital legitimacy/paternity may only be rebutted: on facts proving by clear and convincing evidence that the mother’s spouse was
was not the parent.
There are varying state laws on whether and when evidence of parentage will be allowed to rebut the presumption of Marital Legitimacy/Paternity
most states will allow _______ evidence to challenge the husband’s paternity within a few years of the child’s birth.
DNA
EXAMPLE: If the child is born and the husband suspects that he is not the father, he can challenge paternity within
two years of the birth of the child.
Doctrine of Estoppel: Applied Against the Mother’s Husband: when the mother’s husband learns he is not the biological father but nevertheless
continues to support and hold out the child as his own, he is estopped from denying paternity
Doctrine of Estoppel: Applied Against the Mother: the mother may be estopped from seeking child support from a different man if she has deliberately
allowed another man to believe he was the father of her child and has accepted child support from him.
States may provide the other parent more protection.
(1) Many states have enacted statutes that give an unmarried parent no more than______ years to establish parentage when the alleged child has a presumed parent, deeming this period sufficient to resolve the issue without subjecting the child to a long period of possibly unsettled circumstances.
two years
The Uniform Parentage Act (“UPA”) presumes parentage in the following circumstances:
(1) The couple marries each other before the child’s birth whether or not the marriage could be declared invalid;
(2) After the child’s birth, the other parent automatically, voluntarily asserts parentage, such as by agreeing to be named as the other parent on the birth certificate; or
(3) For the first two years of the child’s life, the other parent resided in the same household with the child and openly held out the child as their own.
most states allow paternity actions to be brought at any time prior to the child reaching the age of 18.
many states require that a paternity action be instituted prior to
the death of the putative father.
Burden of Proof Shifts, depending on the way in which parentage is being established.
(1) DNA tests: requires what burden of proof?
(2) Marital presumption: burden of proof?
DNA proof by preponderance of the evidence
marital presumption - clear and convincing evidence
Federal law provides that: a valid, un rescinded, unchallenged acknowledgement of parentage is to be treated as equivalent to a
judicial determination of parentage.
T or F non-marital children are constitutionally guaranteed equal rights to support as marital children
True
requirements for parents entitled to custody of minor children
If both parents are living, competent, and have not been found to be unfit, they are entitled to custody of the minor and to direct his education and medical care
For a non-parent to seek custody or visitation rights over a child with living parent(s): significant deference must be given to
a legal parent’s objection to visitation
T or F A requirement of a finding of parental unfitness or harm to the child to override a parent’s decision likely would satisfy the Constitution’s demands.
True
