PARENTAGE Flashcards
NONMARITAL CHILDREN
A nonmarital child (sometimes called an illegitimate child
or a child born out of wedlock) is one born to an unmarried
woman. (But see 11.3., infra, regarding gestational mother
under a gestational agreement.)
Constitutional Limits on Discrimination
Distinctions between marital and nonmarital children
are subject to intermediate scrutiny (that is, they must
be substantially related to an important governmental
interest).
The Supreme Court will not uphold discriminatory legislation
intended to punish the offspring of illicit relationships. Thus,
the Court has held that:
* Nonmarital children cannot be precluded from inheriting
from their fathers
* Statutes of limitations on paternity suits are discriminatory
* Nonmarital children have the same right to child support
as marital children
* Government benefits may not be denied to nonmarital
children merely because they are born out of wedlock
* Nonmarital children may not be precluded from suing for
a parent’s wrongful death
In contrast, because of the plenary power over immigration,
the Court upheld a federal law granting immigration preferences
to marital children.
Parentage Actions Generally
Parentage actions can be brought to establish a biological
relationship and settle issues of paternity or maternity,
usually the former. Once there’s a finding of parentage, that
person has rights to custody and visitation in addition to a
duty to pay support.
Presumption of Parentage
Typically, the mother’s husband is presumed to be the father
of a child if the child is born during the marriage or within
300 days of the marriage’s termination. This is true even if
the marriage is void or voidable.
Paternity Disestablishment
Most states refuse to terminate an established parent-child
relationship, especially after the passage of some time, even
if the husband can prove that he is not the child’s biological
father. Some states have made it possible for men,
even fathers of marital children, to establish nonpaternity.
Rebutting the presumption of parentage generally requires
clear and convincing evidence. In that case, paternity will be
disestablished and any child support obligation eliminated.
Unwed Fathers
Under most state statutes, every child is the lawful child of
his mother. The child is the lawful child of an unwed father
only if:
* The parents married after the child’s birth
* The father holds the child out as his biological child
* The father consents to be named on the birth certificate
* The father formally acknowledges paternity or
* There is a court order establishing paternity
Unwed fathers are protected by the Due Process Clause
and can have rights to custody if they demonstrate parental
responsibility. This includes acknowledgment of paternity as
well as supervision, education, protection, care, and support
of the child. To have due process rights regarding a newborn,
the unwed father must be willing to assume custody of the
child and not merely block adoption by others. Other considerations
include publicly acknowledging paternity, paying
pregnancy and birth-related expenses, taking steps to establish
legal responsibility for the child, and showing a commitment
to the child.
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NOTES
44
An unwed father may be precluded from tort recovery for the
death of a child he did not legally recognize
Paternity Suits
A paternity suit seeking support may be brought by the child,
the mother, or the state (if the child is receiving support from
the state). Once paternity is established, the duty of support
attaches, and the father may assert rights to visitation and
custody. A paternity action can also be used to allow the
child to inherit.
Statute of Limitations
Since the statute is tolled during the child’s minority, the
limitations period will be at least 18 years.
Evidence
States vary on the level of proof required to establish paternity.
Some states require “clear and convincing evidence,”
but a “preponderance of the evidence” standard has also
been upheld. To prove paternity today, most states use blood
and tissue sampling because it’s attainable, but testimonial
and other medical evidence has been deemed sufficient. If
genetic tests show that the defendant cannot be the father,
the case must be dismissed.
Records of paternity actions are usually kept sealed.
Citizenship of Child Born Abroad to
Unmarried
American Parent
When an unmarried American woman gives birth abroad,
her child may be granted United States citizenship without
formally establishing her parentage. However, when the child
of an unmarried American man is born abroad, the father
must take specific steps to establish his paternity in order to
make his child a United States citizen
TERMINATION OF PARENTAL RIGHTS AND
ADOPTION: Termination of Parental Rights
Generally
Parents may voluntarily relinquish all rights to their children
(often done in preparation for adoption).
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Because the right to raise one’s children is a fundamental
constitutional right, parents must have due process before
their rights can be terminated involuntarily. This includes the
right to counsel (including the right to appointment of counsel
if indigent, should fundamental fairness so require). Grounds
for termination must be proved by clear and convincing
evidence.
Grounds
Grounds for involuntary termination include:
* Infliction of serious physical harm on the child, including
sexual abuse
* Abandonment
* Neglect or deprivation (failure to meet minimum standards
of care)
* Failure to provide support without justifiable cause
* Mental illness or retardation so severe as to make the
parent incapable of caring for the child
* Parental unfitness (conduct by the parent that seriously
harms the child physically or psychologically)
Note: States always want to reunite parents and children,
so the ultimate purpose is not to remove the child permanently.
The state’s purpose is to find a suitable home for the
child while the parent gets back on track. And if that’s not
possible, then placing the child for adoption to a third person
Types of Adoption
In agency adoption, licensed adoption agencies act as
intermediaries in the adoption. In private adoption, private
persons act as intermediaries to arrange adoption
Requirements for Adoption: Termination of Natural Parents’ Rights
The consent of the child’s natural parents is generally
required. Parental consent is not necessary if parental rights
have been terminated (see above). The parental consent
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requirement may be waived if the court concludes it is
being unreasonably withheld against the best interest of the
child (for example, natural parent has deserted the child). A
nonconsenting parent is entitled to notice of the hearing and
an opportunity to be heard.
Consent of Unmarried Fathers
In deciding whether an unwed father can veto a
prospective adoption, the court considers the level of
the father’s involvement with the child, such as whether
he lived with and cared for the child, visited the child
regularly, admitted paternity, or paid child support. As to
a newborn infant, a father’s right to a continued parental
relationship depends on his manifestations of parental
responsibility. A father of a nonmarital child who has
never attempted to establish a legal or personal relationship
with that child has no right to notice prior to the
adoption of the child by others.
