Establishing and Disestablishing Paternity in the New ... · Establishing and Disestablishing Paternity in the New Millennium

ERICSA 52nd Annual Training Conference & Exposition ▪ April 26 – 30Hershey Lodge ▪ Hershey, Pennsylvania

Establishing and DisestablishingPaternity in the New Millennium

Patrick W. Quinn, EsquireRobert 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 broadfederal IV-D requirements

Common themes/laws among stateswith more and more variances

Paternity -A legal “occurrence” whichcreates a legal relationship between afather and a child.



B. Presumption of Paternity

Long standing principle rooted incommon law: “child born to marriedcouple is a child of marriage”.Husband is presumed to be father

*any challenge to this presumption is a type of paternitydisestablishment



B. Presumption of Paternity

Applies to common law marriages awell (common law marriages areincreasingly being precluded by statuteby states)

Presumption of paternity is continually beingeroded by case law and statutes in many ifnot most states



C. Children Born out of Marriage

“out of wedlock” = no legal relationshipexists between putative father andchild

“establishing paternity” creates a legalrelationship and a support obligation



C. Children Born out of Marriage

Methods to establish paternity (variesamong states)

Parents subsequently marryFather openly holds child out as his own(paternity by estoppel)Prior court determinationsParents execute a voluntaryAcknowledgement of Paternity form



D. Special ConsiderationBirth Certificates

This greatly varies among states. From proof ofpaternity to meaning essentially nothing(evidence of paternity)

Military CasesApply state lawMust consider Service Members CivilRelief Act (SCRA) 50 U.S.C. App. §§501-596

Interstate Cases



D. Special ConsiderationInterstate Cases

UIFSA requires that: “a determination ofpaternity made by another state whether throughjudicial or administrative proceedings or byacknowledgement of paternity shall be given fullfaith and credit in the courts of this state

Incarcerated Putative FathersImportant to establish paternity even if supportorder not going to be enteredPotential benefits for childCreate foundation for relationshipEasier to pursue support upon release


II. METHODS OF PATERNITY ESTABLISHMENT

1. Establishing Paternity Administratively

Federal law requires states to have a voluntarypaternity acknowledgment process to provide amother and father the opportunity to establishpaternity 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)



1. Establishing Paternity Administratively

Federal law and Regulation require state to havelaws which require hospitals and birthing centers tomake available acknowledgment of paternity formsfor filing with a state registry.

a complete form filed appropriately constitutes conclusiveevidence of paternity without further judicial ratification. 42U.S.C. §666(a)(5)(E), 45 CFA 302.70(a)(5)(iv) and (vii)

Most states allow for completion and filing of form inconjunction with support proceeding.After 60 days, the Acknowledgment of Paternitymay be challenged in court only on the basis offraud, duress, or material mistake of fact. 42 U.S.C.666(a)(5)(D)(iii)



2. Establishing Paternity Judicially

If paternity has not previously been resolved(marriage presumption, acknowledgement) thenpaternity is addressed in conjunction withestablishing support. Most states allow forcompletion and filing of form in conjunction withsupport proceeding.

Putative father given opportunity to acknowledgepaternity or engage in paternity testing (genetictesting). 45 C.F.R. 303.5(d).



2. Establishing Paternity Judicially

State process must have procedures to create arebuttable presumption or at state option,conclusive presumption of paternity upon genetictesting results indicating a threshold probability(most often 99%). 45 C.F.R. 302.70(a)(5)(vi)

Requires various state procedural safeguards.



3. Estoppel Considerations

There are certain fact situations where a father isestopped (precluded) from contesting paternity andrequesting genetic testing.



3. Estoppel Considerations

Estoppel can be claimed by any partyExamples:

Husband is estopped due to marriage presumptionWife is estopped from claiming 3rd party as she is married.Putative father may be estopped from seeking to establishhis paternity due to marriage presumption or current legalfather who has acted as fatherPutative father may be estopped from denying paternity ashe has acted as father



4. Default Orders

At any point in the judicial process, if putative fatherfails to appear after having been properly served,the court shall enter an order finding the man to bethe father. 42 U.S.C. 666(a)(5)(H), 45 CFR302.70(a)(5)(viii) and 45 CFR 303.5(f).


III. Estoppel2 Types

Collateral (sometimes referred to as“Judicial”

Equitable


III. EstoppelA. Collateral/Judicial

Prevents re-litigation of paternity if theissues has already been decided in aprior judgment by a court of competentjurisdiction. Need 4 elements:


III. EstoppelA. Collateral/Judicial

Need 4 elements:Paternity issue in prior adjudication is the same one beingraisedFinal judgment on meritsThe party against whom the plea is asserted was a party inthe previous actionParty had full opportunity to litigate the issue in the priorproceeding

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., 174S.W.3d502 (Ky.Ct. App. 2005).

*Cases are slowly eroding this doctrine when hew facts come to light.


III. EstoppelB. Equitable Estoppel

Prevents a party from taking a differentposition during a subsequent actionthen s/he did at an earlier time. (Canbe by action or word.)

EX: Putative father previously filed forcustody of child and now wants to denypaternity



Bars subsequent litigation when there hasbeen prior litigation

Two Types:Claim preclusion

Claim preclusion – final judgments on merits of caseregarding a claim bars subsequent litigation (A vs.B)

Issue PreclusionIssue preclusion – prevents subsequent re-litigation ofpreviously litigated issue. EX: paternity as part of support



Reller v. Reller 291 P.3d 813 (Ut.Ct.App 2012), 39FLR 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 suchdeterminations are entitled to full faith andcredit by all courts.


IV. Full Faith and Credit for Child Support Orders Act(FFCCSOA)

Under the provisions of FFCCSOA, allstates are required to recognize adetermination of paternity made by anyother state, whether established throughvoluntary acknowledgment or throughadministrative or judicial processes.

Thus, a paternity determination made inanother state is valid in all states and canonly be challenged in the original state ofdetermination.


V. Paternity DisestablishmentA. Child born “Of the Marriage”

Presumption applies against the mother & father(wife & husband) until a party attempts todisestablish paternity.

Does the presumption of paternity apply (within a marriage& an intact family)

If YesHas it been rebutted?

Non-AccessImpotency

Is it inapplicable?No longer intact family

Does paternity by estoppel apply?The legal determination that a person’s(i.e. mother/father/putative father) priorconduct precludes that person fromdenying, disestablishing or seekingsupport from a third party for the childregardless of genetic test results.

Is there evidence of fraud?The father must show he would nothave held the child out as his ownchild if it were not for the mother’sfraudulent conduct.



Who can challenge the presumption?

Husband/Presumed FatherMother/WifePutative Father



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. Paternity DisestablishmentB. Child born outside of marriage

Paternity by estoppel

If estoppel or presumptions of paternity is raised by one ofthe parties or the court, the court may postpone genetictesting until after a hearing is held to resolve the issue.

The court may decide that paternity was previouslyestablished and there is no right to genetic testing;dismiss the action after finding the action inappropriate orpermit the genetic testing to be performed.



Court DeterminationDefault 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 hasno notice of the institution of the action against him, such person isentitled to have the judgment set aside.” Keiling v. McIntire, 408 N.E.2d565.How long do you have to challenge?



Court DeterminationChallenge to paternity must occur in state wheredetermination is made.

Ex. Of a case:Child is born 2 years before the marriage. Paternity is established bytestimony during the marriage (but separated). Subsequently theparties are divorced and under a new cause number DNA testing iswaived in the divorce as well.One year later, the parties on their own have the child and ex-husband submit to genetic testing which reveals a 0% probability ofpaternity. Parties also performed a genetic test for another manwhich concludes a 99% probability of paternity…



Voluntary Paternity Affidavit

Federal law permits states to choose if paternity acknowledgmentconstitutes

Rebuttable Presumption of paternityConclusive evidence of paternity

Recession within 60 days.Either parent who signs a voluntary acknowledgmentof paternity (whichever occurs earlier)

60 Days ORThe date of an administrative or judicial proceeding relating to the child (including aproceeding to establish a support order) in which the signatory is a party.



Voluntary Paternity Affidavit

Beyond 60 days, challenge must be on basis offraud, duress or material mistake of fact.

Defined by case law in each state

ExampleAfter 60 days and an agreed order for support?



Voluntary Paternity AffidavitAcknowledgment signed by biological father when a legalfather exists

State Law and Process controls.How does your State handle these examples?

Husband and Wife are separated and another mansigned a Paternity Affidavit and/or on the birthcertificate.Paternity Affidavit is signed but the mother isstating another man is the father.



What happens if Paternity is set aside?

ArrearsPayment RecoveryVisitationOther?


VI. Future Trends/ThoughtsA. Uniform Parentage Act (UPA)

The UPA promulgated by the National Conference ofCommissioners on Uniform State Laws (NCCUSL) in 1973and revised in 2000 and in 2002, is the latest and mostthorough effort to bring uniformity to the process of paternityestablishment and other related issues, includingdisestablishment of paternity. The NCCUSL is a nonprofitgroup that proposes legislation to be adopted by states.

The 1973 act was revised in 2000 and amended in 2002. It isnow the official recommendation of the NCCUSL with respectto paternity issues. The revised UPA is not a Federalmandate, although it incorporates some current Federalrequirements.

Nine States have enacted UPA into Law



With respect to paternity disestablishment, UPA sets forth thefollowing:

A proceeding to adjudicate parentage of a child having apresumed father can be brought by the mother, the presumedfather, or another individual.

When a child is born of a marriage and the husband ispresumed to be the father, the presumed father may sign adenial of his paternity if an acknowledgment of paternity hasbeen signed and filed by another man, and if the presumedfather has not previously acknowledged his paternity or beenadjudicated to be the father of the child.




Otherwise, the presumed father may only initiate a proceedingto challenge paternity within the first two years after the child’sbirth. An exception to this statute of limitations is permitted if:

The presumed father and the mother of the child neithercohabited nor engaged in sexual intercourse with each otherduring the probable time of conception; and

The presumed father never openly held out the child as hisown. Note: Under these circumstances, a paternity“disestablishment” proceeding may commence at any time.




When an individual has acknowledged that he is the father ofthe child, the acknowledgment of paternity can only berescinded by the individual that signed the acknowledgementduring the permitted rescission period of 60 days after theeffective date of the acknowledgment or prior to the firsthearing involving the child and the acknowledged father,whichever is earlier.




However, if a child has an acknowledged father or anadjudicated father, an individual (other than the child) who isneither a signatory to the acknowledgment not a party to theadjudication may commence a proceeding to challengepaternity no later than two years after the effective date of theacknowledgment. These proceedings are also subject to theapplication of the principles of estoppel.


VI. Future Trends/ThoughtsA. States Reactions/Trends in Paternity

Disestablishment

Hot topic in many statesAs outlined in OCSE Publication PolicyInterpretation Question, - federal governmentacknowledges that paternity disestablishment is astate issue (PIQ-03-01).States widely vary in policy and approach

Some driven by statuteOthers by case lawMany states have draft legislation addressing the issue



Disestablishment

Hot topic in many statesAs outlined in OCSE Publication PolicyInterpretation Question, - federal governmentacknowledges that paternity disestablishment is astate issue (PIQ-03-01).States widely vary in policy and approach

Some driven by statuteOthers by case lawMany 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. Massachusettsstates that paternity by estoppel is in accordance with aninterest in strengthening the family. Under this approach,the role of the court id to find the truth, even if the truth isharmful, inconvenient, or disruptive of the status quo.



Disestablishment


New York recognizes both the biological approach and thepresumptions arriving at a resolution that serves the bestinterest of the child. If another man has been identifiedwho might be the biological father, the DNA is allowed intoevidence; however, if not, it is likely that if the husband hasdeveloped a relationship with the child, the DNA will beexcluded.



Disestablishment


In October 2006, Florida passed a law protecting men from“paternity fraud” by allowing the termination of childsupport in cases where a DNA test proves that anotherman is the biological father. Florida is the latest state toament its child support law. Since 1994, 11 states havechanged similar laws that typically required men to paychild support, once legally established, until a child’s 18th

birthday.


VI. Future Trends/ThoughtsA. Future Thoughts for States

Does the truth concerning biological percentageoutweigh the parent-child bond that may havedeveloped over years?

Does it matter if the action is brought by the mother,the husband, or third parties seeking to assertpaternity?

What is “in the best interest of the child” and howmuch weight should those considerations be given?


VI. Future Trends/ThoughtsA. Future Thoughts for States

Is there an age limit of the child after whichpaternity should not be subject to challenge?

Do we leave a child “fatherless” if the true biologicalfather is unknown or unable to be located?

Should genetic testing be required beforeacknowledgment of paternity can be signed?

Should genetic testing be performed on babies,even if they are born to a married couple?

ERICSA 52nd Annual Training Conference & Exposition ▪ April 26 – 30Hershey Lodge ▪ Hershey, Pennsylvania

Establishing and DisestablishingPaternity in the New Millennium

Patrick W. Quinn, EsquireRobert J. Harkins, EsquireQuestions?

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Establishing and Disestablishing Paternity in the New ... · Establishing and Disestablishing Paternity in the New Millennium