Establishing and Disestablishing Paternity in the New Millennium

Transcription

Establishing and Disestablishing
Paternity in the New Millennium
Patrick W. Quinn, Esquire
Robert J. Harkins, Esquire
ERICSA 52nd Annual Training Conference & Exposition ▪ April 26 – 30
Hershey Lodge ▪ Hershey, Pennsylvania
I.
LAW OF PATERNITY ESTABLISHMENT
A. Establishing the legal father of a child
Laws are very state based with broad
federal IV-D requirements
Common themes/laws among states
with more and more variances
Paternity -A legal “occurrence” which
creates a legal relationship between a
father and a child.
ERICSA 52nd Annual Training Conference & Exposition ▪ April 26 – 30 ▪ Hershey Lodge ▪ Hershey, Pennsylvania
I.
B. Presumption of Paternity
Long standing principle rooted in
common law: “child born to married
couple is a child of marriage”.
Husband is presumed to be father
*any challenge to this presumption is a type of paternity
disestablishment
I.
B. Presumption of Paternity
Applies to common law marriages a
well (common law marriages are
increasingly being precluded by statute
by states)
Presumption of paternity is continually being
eroded by case law and statutes in many if
not most states
I.
C. Children Born out of Marriage
“out of wedlock” = no legal relationship
exists between putative father and
child
“establishing paternity” creates a legal
relationship and a support obligation
I.
C. Children Born out of Marriage
Methods to establish paternity (varies
among states)
Parents subsequently marry
Father openly holds child out as his own
(paternity by estoppel)
Prior court determinations
Parents execute a voluntary
Acknowledgement of Paternity form
I.
D. Special Consideration
Birth Certificates
This greatly varies among states. From proof of
paternity to meaning essentially nothing
(evidence of paternity)
Military Cases
Apply state law
Must consider Service Members Civil
Relief Act (SCRA) 50 U.S.C. App. §§
501-596
Interstate Cases
I.
D. Special Consideration
Interstate Cases
UIFSA requires that: “a determination of
paternity made by another state whether through
judicial or administrative proceedings or by
acknowledgement of paternity shall be given full
faith and credit in the courts of this state
Incarcerated Putative Fathers
Important to establish paternity even if support
order not going to be entered
Potential benefits for child
Create foundation for relationship
Easier to pursue support upon release
II.
METHODS OF PATERNITY ESTABLISHMENT
1. Establishing Paternity Administratively
Federal law requires states to have a voluntary
paternity acknowledgment process to provide a
mother and father the opportunity to establish
paternity for a child born out of the marriage.
(42 U.S.C. § 666(a)(2), 45 CFR 302.70(a)(2),
and 45 CFR 303.101(b)
II.
1. Establishing Paternity Administratively
Federal law and Regulation require state to have
laws which require hospitals and birthing centers to
make available acknowledgment of paternity forms
for filing with a state registry.
a complete form filed appropriately constitutes conclusive
evidence of paternity without further judicial ratification. 42
U.S.C. §666(a)(5)(E), 45 CFA 302.70(a)(5)(iv) and (vii)
Most states allow for completion and filing of form in
conjunction with support proceeding.
After 60 days, the Acknowledgment of Paternity
may be challenged in court only on the basis of
fraud, duress, or material mistake of fact. 42 U.S.C.
666(a)(5)(D)(iii)
II.
2. Establishing Paternity Judicially
If paternity has not previously been resolved
(marriage presumption, acknowledgement) then
paternity is addressed in conjunction with
establishing support. Most states allow for
completion and filing of form in conjunction with
support proceeding.
Putative father given opportunity to acknowledge
paternity or engage in paternity testing (genetic
testing). 45 C.F.R. 303.5(d).
II.
2. Establishing Paternity Judicially
State process must have procedures to create a
rebuttable presumption or at state option,
conclusive presumption of paternity upon genetic
testing results indicating a threshold probability
(most often 99%). 45 C.F.R. 302.70(a)(5)(vi)
Requires various state procedural safeguards.
II.
3. Estoppel Considerations
There are certain fact situations where a father is
estopped (precluded) from contesting paternity and
requesting genetic testing.
II.
3. Estoppel Considerations
Estoppel can be claimed by any party
Examples:
Husband is estopped due to marriage presumption
Wife is estopped from claiming 3rd party as she is married.
Putative father may be estopped from seeking to establish
his paternity due to marriage presumption or current legal
father who has acted as father
Putative father may be estopped from denying paternity as
he has acted as father
II.
4. Default Orders
At any point in the judicial process, if putative father
fails to appear after having been properly served,
the court shall enter an order finding the man to be
the father. 42 U.S.C. 666(a)(5)(H), 45 CFR
302.70(a)(5)(viii) and 45 CFR 303.5(f).
III. Estoppel
2 Types
Collateral (sometimes referred to as
“Judicial”
Equitable
III. Estoppel
A. Collateral/Judicial
Prevents re-litigation of paternity if the
issues has already been decided in a
prior judgment by a court of competent
jurisdiction. Need 4 elements:
III. Estoppel
A. Collateral/Judicial
Need 4 elements:
Paternity issue in prior adjudication is the same one being
raised
Final judgment on merits
The party against whom the plea is asserted was a party in
the previous action
Party had full opportunity to litigate the issue in the prior
proceeding
See: L.M.A.U.M.L.A, 755 N.E. ad 1172 (Ind.Ct. App. 2001) and S.R.D.V.T.L.B., 174
S.W.3d502 (Ky.Ct. App. 2005).
*Cases are slowly eroding this doctrine when hew facts come to light.
III. Estoppel
B. Equitable Estoppel
Prevents a party from taking a different
position during a subsequent action
then s/he did at an earlier time. (Can
be by action or word.)
EX: Putative father previously filed for
custody of child and now wants to deny
paternity
III. Estoppel
Bars subsequent litigation when there has
been prior litigation
Two Types:
Claim preclusion
Claim preclusion – final judgments on merits of case
regarding a claim bars subsequent litigation (A vs.B)
Issue Preclusion
Issue preclusion – prevents subsequent re-litigation of
previously litigated issue. EX: paternity as part of support
III. Estoppel
Reller v. Reller 291 P.3d 813 (Ut.Ct.App 2012), 39
FLR 1029
Mathis v. Estate of McSpadden, 2012 Ark.App. 599
(Ark.Ct.App. 10/24/12) 38 FLR 1613.
In accordance with 42 U.S.C. § 666(a)ii,
once paternity is established such
determinations are entitled to full faith and
credit by all courts.
IV. Full Faith and Credit for Child Support Orders Act
(FFCCSOA)
Under the provisions of FFCCSOA, all
states are required to recognize a
determination of paternity made by any
other state, whether established through
voluntary acknowledgment or through
administrative or judicial processes.
Thus, a paternity determination made in
another state is valid in all states and can
only be challenged in the original state of
determination.
V.
Paternity Disestablishment
A. Child born “Of the Marriage”
Presumption applies against the mother & father
(wife & husband) until a party attempts to
disestablish paternity.
Does the presumption of paternity apply (within a marriage
& an intact family)
If Yes
Has it been rebutted?
Non-Access
Impotency
Does paternity by estoppel apply?
Is it inapplicable?
No longer intact family
The legal determination that a person’s
(i.e. mother/father/putative father) prior
conduct precludes that person from
denying, disestablishing or seeking
support from a third party for the child
regardless of genetic test results.
Is there evidence of fraud?
The father must show he would not
have held the child out as his own
child if it were not for the mother’s
fraudulent conduct.
V.
Who can challenge the presumption?
Husband/Presumed Father
Mother/Wife
Putative Father
V.
Parties agree that the husband is not the father:
Mother file a case against the husband.
Presumption of Paternity needs to be addressed.
Case specific facts.
Best interest of the child?
Decision may be based on testimony or DNA Testing
V.
B. Child born outside of marriage
Paternity by estoppel
If estoppel or presumptions of paternity is raised by one of
the parties or the court, the court may postpone genetic
testing until after a hearing is held to resolve the issue.
The court may decide that paternity was previously
established and there is no right to genetic testing;
dismiss the action after finding the action inappropriate or
permit the genetic testing to be performed.
V.
Court Determination
Default Order
Are genetic tests admissible to disestablish paternity?
Motion to set aside original order.
Challenges to service
“Where a defendant has not been served with process and who thus has
no notice of the institution of the action against him, such person is
entitled to have the judgment set aside.” Keiling v. McIntire, 408 N.E.2d
565.
How long do you have to challenge?
V.
Court Determination
Challenge to paternity must occur in state where
determination is made.
Ex. Of a case:
Child is born 2 years before the marriage. Paternity is established by
testimony during the marriage (but separated). Subsequently the
parties are divorced and under a new cause number DNA testing is
waived in the divorce as well.
One year later, the parties on their own have the child and exhusband submit to genetic testing which reveals a 0% probability of
paternity. Parties also performed a genetic test for another man
which concludes a 99% probability of paternity…
V.
Voluntary Paternity Affidavit
Federal law permits states to choose if paternity acknowledgment
constitutes
Rebuttable Presumption of paternity
Conclusive evidence of paternity
Recession within 60 days.
Either parent who signs a voluntary acknowledgment
of paternity (whichever occurs earlier)
60 Days OR
The date of an administrative or judicial proceeding relating to the child (including a
proceeding to establish a support order) in which the signatory is a party.
V.
Beyond 60 days, challenge must be on basis of
fraud, duress or material mistake of fact.
Defined by case law in each state
Example
After 60 days and an agreed order for support?
V.
Acknowledgment signed by biological father when a legal
father exists
State Law and Process controls.
How does your State handle these examples?
Husband and Wife are separated and another man
signed a Paternity Affidavit and/or on the birth
certificate.
Paternity Affidavit is signed but the mother is
stating another man is the father.
V.
What happens if Paternity is set aside?
Arrears
Payment Recovery
Visitation
Other?
VI. Future Trends/Thoughts
A. Uniform Parentage Act (UPA)
The UPA promulgated by the National Conference of
Commissioners on Uniform State Laws (NCCUSL) in 1973
and revised in 2000 and in 2002, is the latest and most
thorough effort to bring uniformity to the process of paternity
establishment and other related issues, including
disestablishment of paternity. The NCCUSL is a nonprofit
group that proposes legislation to be adopted by states.
The 1973 act was revised in 2000 and amended in 2002. It is
now the official recommendation of the NCCUSL with respect
to paternity issues. The revised UPA is not a Federal
mandate, although it incorporates some current Federal
requirements.
Nine States have enacted UPA into Law
With respect to paternity disestablishment, UPA sets forth the
following:
A proceeding to adjudicate parentage of a child having a
presumed father can be brought by the mother, the presumed
father, or another individual.
When a child is born of a marriage and the husband is
presumed to be the father, the presumed father may sign a
denial of his paternity if an acknowledgment of paternity has
been signed and filed by another man, and if the presumed
father has not previously acknowledged his paternity or been
adjudicated to be the father of the child.
following:
Otherwise, the presumed father may only initiate a proceeding
to challenge paternity within the first two years after the child’s
birth. An exception to this statute of limitations is permitted if:
The presumed father and the mother of the child neither
cohabited nor engaged in sexual intercourse with each other
during the probable time of conception; and
The presumed father never openly held out the child as his
own. Note: Under these circumstances, a paternity
“disestablishment” proceeding may commence at any time.
following:
When an individual has acknowledged that he is the father of
the child, the acknowledgment of paternity can only be
rescinded by the individual that signed the acknowledgement
during the permitted rescission period of 60 days after the
effective date of the acknowledgment or prior to the first
hearing involving the child and the acknowledged father,
whichever is earlier.
following:
However, if a child has an acknowledged father or an
adjudicated father, an individual (other than the child) who is
neither a signatory to the acknowledgment not a party to the
adjudication may commence a proceeding to challenge
paternity no later than two years after the effective date of the
acknowledgment. These proceedings are also subject to the
application of the principles of estoppel.
A. States Reactions/Trends in Paternity
Disestablishment
Hot topic in many states
As outlined in OCSE Publication Policy
Interpretation Question, - federal government
acknowledges that paternity disestablishment is a
state issue (PIQ-03-01).
States widely vary in policy and approach
Some driven by statute
Others by case law
Many states have draft legislation addressing the issue
Disestablishment
Hot topic in many states
As outlined in OCSE Publication Policy
Interpretation Question, - federal government
acknowledges that paternity disestablishment is a
state issue (PIQ-03-01).
States widely vary in policy and approach
Some driven by statute
Others by case law
Many states have draft legislation addressing the issue
Disestablishment
Examples of some state approaches:
Massachusetts adheres to the biological approach.
Fatherhood is strictly a matter of biology. Massachusetts
states that paternity by estoppel is in accordance with an
interest in strengthening the family. Under this approach,
the role of the court id to find the truth, even if the truth is
harmful, inconvenient, or disruptive of the status quo.
Disestablishment
New York recognizes both the biological approach and the
presumptions arriving at a resolution that serves the best
interest of the child. If another man has been identified
who might be the biological father, the DNA is allowed into
evidence; however, if not, it is likely that if the husband has
developed a relationship with the child, the DNA will be
excluded.
Disestablishment
In October 2006, Florida passed a law protecting men from
“paternity fraud” by allowing the termination of child
support in cases where a DNA test proves that another
man is the biological father. Florida is the latest state to
ament its child support law. Since 1994, 11 states have
changed similar laws that typically required men to pay
child support, once legally established, until a child’s 18 th
birthday.
A. Future Thoughts for States
Does the truth concerning biological percentage
outweigh the parent-child bond that may have
developed over years?
Does it matter if the action is brought by the mother,
the husband, or third parties seeking to assert
paternity?
What is “in the best interest of the child” and how
much weight should those considerations be given?
A. Future Thoughts for States
Is there an age limit of the child after which
paternity should not be subject to challenge?
Do we leave a child “fatherless” if the true biological
father is unknown or unable to be located?
Should genetic testing be required before
acknowledgment of paternity can be signed?
Should genetic testing be performed on babies,
even if they are born to a married couple?
Establishing and Disestablishing
Paternity in the New Millennium
Questions?
ERICSA 52nd Annual Training Conference & Exposition ▪ April 26 – 30
Hershey Lodge ▪ Hershey, Pennsylvania
Patrick W. Quinn, Esquire
Robert J. Harkins, Esquire

Establishing and Disestablishing Paternity in the New Millennium

Transcription

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