© 2006 Thomson Delmar Learning. All Right Reserved. CHAPTER 6 PATERNITY

© 2006 Thomson Delmar Learning. All Right Reserved.

CHAPTER 6CHAPTER 6

PATERNITYPATERNITY


• Proving Paternity• Paternity

• Illegitimate child

• Children born outside of marriage are typically excluded from most rights

– Right to inherit from a parent per the state intestacy laws

– Right to sue for wrongful death

PaternityChapter 6Chapter 6


• Proving Paternity (continued)

• Exclusionary behavior was found to violate the U.S. Constitution’s Equal Protection Clause

• Levy case invalidated state inheritance, custody, and tort laws that put children of unmarried parents at a disadvantage

• One Side of the Story: Michelle is Expecting

• The Other Side of the Story: Johnny is Denying



• DNA: To Test or Not To Test• Describe a DNA test



• Proving Paternity and Getting Support • National Conference of Commissioners on Uniform

State Laws– Uniform Parentage Act of 1973

◦ All children treated equally without regard for the marital status of the parents

◦ The Act established a set of rules that abolished the term illegitimate and established the phrase “a child with no

presumed father”



• Proving Paternity and Getting Support (continued)

– Changes to the Act of 1973 as proposed in 2000 and amended in 2002◦ Meeting the challenges of adapting to recent scientific

reproduction developments

◦ Providing guidelines for state Registry of Paternity to deal with the rights of a man who is not an acknowledged, presumed or adjudicated father

◦ Provide comprehensive coverage of genetic testing

◦ Bringing more necessary consistency between the UPA and the 1996 and 2001 versions of UIFSA




• Registries of Paternity– Designed to allow fathers to voluntarily go to declare

himself the biological father of a child




• Uniform Reciprocal Enforcement of Support Act (URESA)

– Revised with UIFSA

– Created a more effective framework for child support enforcement of interstate cases

– Establish and enforce a support order, modify a support order, and determine parentage with or without, an accompanying establishment of support



• Location, Location, Location: Proving Paternity Across America• All states required to create statutes to deal with

paternity questions



• Location, Location, Location: Proving Paternity Across America (continued)

– California law considers a man to be the presumed father if any of the three occur:◦ The man and natural mother are married 300 days before the

child was born

◦ Before the birth of the child, the mother and father attempt to marry

◦ Following the child’s birth, he and the mother are married– He consents to be named as the child’s father

– He signs a voluntary promise to support the child as his natural child

– He openly acknowledges the child as his own



• Location, Location, Location: Proving Paternity Across America (continued)

–Texas Law◦ If the man refused to take a DNA test then the burden is on him

to prove that he is not the father of the child



• Procedure Must Be Followed• Federal Government

– Title IV-D agencies are part of the federal statutes

– Each state required to have a simple civil process for voluntarily acknowledging paternity and a civil procedure for establishing paternity in contested cases

– Each state must do its best to secure support for a child

• Bottom Line



• Make Room for Daddy• If the father refuses to admit paternity then the

mother has the right to file a complaint for paternity

• Review a Complaint for Paternity (Exhibit 6:1)



• Motivation Spelled L A W S U I TL A W S U I T• Review the Paternity Evaluation Laboratory Report

(Exhibit 6:2)

• What’s the Next Step After a Positive DNA Test?• Father could voluntarily agree to help support the

child



• What’s the Next Step After a Positive DNA Test? (continued)

• Mother could go to Court and get an order that provides for:

– Determination of parentage

– Reasonable expenses for the mothers pregnancy and postpartum disability

– Child support

– Attorney fees and court costs



• Voluntary Acknowledgement of Paternity• Acknowledgement of Paternity to be filed with the

State registry of birth records

• Review the Voluntary Declaration of Paternity (Exhibit 6:3)

• UPA promotes the importance of a parentage registry

• Termination of Parental Rights



• Fighting the Biological Father: Hit the Road, Jack!• Understand the presumed father laws within your

state



• No Facts in Dispute?• Summary judgment motion

• Clear and convincing evidence

• Preponderance of the evidence

• Beyond a reasonable doubt

• The Department of Public Aid ex rel. Vicki Galbraith v. Jeff Jones



• DNA Wins Over Vasectomy• Kesselring v. Kesselring

• Biological Father Battles Presumed Father• Prima facie evidence

• In the Interest of J.W.T., a minor child



• Ethics Alert:• Is the alternative law firm following legal and ethical

guidelines?


Documents

© 2006 Thomson Delmar Learning. All Right Reserved. CHAPTER 6 PATERNITY