Parents & Children Flashcards
Ways to Establish Paternity
- Marital presumption
- Actions brought by putative parent
Marital Presumption
Children born to or conceived by a woman while she is married are the children of the woman and her spouse. This presumption may only be rebutted on facts proving by clear and convincing evidence that the mother’s spouse was not the parent (e.g. DNA evidence)
Doctrine of Estoppel: Mother’s Spouse
When the mother’s spouse learns he is not the biological father but continues to support and hold out the child as his own, he is estopped from denying paternity.
Doctrine of Estoppel: Applied Against 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 accepted child support from him.
Actions Brought By a Putative Parent
Many states have enacted statutes that give an unmarried parent no more than two years to establish parentage when the alleged child has a presumed parent.
Uniform Parentage Act (UPA)
Provides a presumption of parentage when:
- the couple marries each other before the child’s birth, whether or not the marriage could be declared invalid
- 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
- 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
Child Support Actions Brought By or for Child
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.
Rights of Non-Marital Children
Non-marital children are constitutionally guaranteed (under EP clause) equal right to support as marital children
Custody and Control of 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 (part of their constitutional right to privacy). But these rights are subject to limitation when they jeopardize the health and safety of children or have a potentially significant social burden.
Family Privacy Doctrine
States that courts will not interfere with disputes between spouses regarding educational preferences, including extracurricular activities.
Medical Care to Children
Statutes in all states require the consent of parents to medical care for their children except in emergency situations. However, parents who refuse to allow “necessary” medical procedures to save the life of their child may be found guilty of neglect, and a guardian may be appointed to make medical decisions.
Custody Disputes Regarding Child’s Religion
The Establishment Clause prevents courts from favoring one religion over another; however, custody determinations can be made in the best interest of the child if the courts determine that the religion is harming to the child’s welfare.
Rights of a Non-Parent to Seek Custody or Visitation
Courts will provide significant deference to a legal parent’s objection to visitation. The presumption is that a child will live with a fit parent rather than a non-parent which can be rebutted with a finding of parental unfitness or harm to the child.
Parental Obligation to Support Child
A parent’s obligation to support a child is terminated when the child reaches the age of majority (18 in most states).
Continued Duty of Support
Some states require parents to continue to support a child beyond the age of majority where the child is incapable of self-support by reason of mental or physical disability, or is attending high school.
Termination of Parental Rights
Rights and obligations can be terminated by:
- actions of the child (emancipation)
- actions of the parent (relinquishment)
- actions by the state (involuntary termination)
Emancipation
A minor child who is legally “emancipated” need not be supported by the parent.
Key Components to Becoming Emancipated
Components include:
- financial independence;
- maturity;
- marriage;
- children of their own;
- ability to support themselves
Voluntary Relinquishment of Parental Rights
Parental rights may be lost by the parent’s voluntary relinquishment of parental rights.
Involuntary Termination of Parental Rights: Notice Req.
Parental rights cannot be terminated without notice and hearing, such DP protections are extended only to legal and biological parents, not foster parents.
Involuntary Termination of Parental Rights: Standard of Proof
Termination must be based upon a finding of parental unfitness proved by clear and convincing evidence
Circumstances that Show Parental Unfitness
Include:
- abandonment
- neglect
- abuse
Abandonment
The parent has failed to maintain a reasonable degree of interest, concern, or responsibility for the child’s welfare for a specified period of time.
Neglect
The child has been denied the care, guidance, or control necessary for his physical, educational, moral, or emotional well-being
Abuse
Inadequately explained serious physical injury to a child may constitute evidence sufficient for the termination of parental rights & expert testimony may be required regarding the causes of the child’s injuries or behavior and effects of emotional/physical abuse.
Obligation to Support Parent
Some states impose a statutory duty on adults to support their parents or other close relatives who are in danger of becoming public charges.
