DOCSLIB.ORG

Chapter 12 Paternity

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Chapter 12 Paternity CHAPTER 12 PATERNITY Table of Contents I. OVERVIEW OF LEGAL PROCEEDINGS TO DETERMINE PATERNITY................. 12-3 A. Methods of Establishing Paternity...................................................................................... 12-3 B. Paternity Proceeding in Juvenile Court............................................................................... 12-3 C. Paternity Issues in Divorce Custody Cases......................................................................... 12-3 D. Paternity Issues in Adoption................................................................................................ 12-5 E. Title IV-D and the Child Support Bureau.......................................................................... 12-5 II. RIGHTS OF ALLEGED FATHERS IN CHINS AND TEMINATION CASES A. Alleged Father Qualifies as “Parent”.................................................................................. 12-6 B. CHINS and Termination Case Law.................................................................................... 12-7 C. Custody and Parenting Time Rights................................................................................... 12-9 III. INVOLVING ALLEGED FATHERS IN CHINS PROCEEDING A. Best Practice to Give Notice to Alleged Fathers................................................................. 12-9 B. Benefits/Detriments of Establishing Paternity................................................................... 12-9 C. Amendment of CHINS Petition to Include Alleged or Adjudicated Father....................... 12-11 D. Locating Alleged Fathers..................................................................................................... 12-12 IV. ESTABLISHING PATERNITY WITH A PATERNITY PROCEEDING A. Jurisdiction and Venue...................................................................................................... 12-13 1. Intrastate Court Jurisdiction........................................................................................ 12-14 2. Interstate Jurisdiction................................................................................................... 12-18 B. Civil Trial Rules and Standard of Proof............................................................................. 12-19 C. Right to Jury Trial............................................................................................................... 12-19 D. Standing and Legal Responsibility to File Paternity Proceeding...................................... 12-19 E. Filing Paternity Proceeding on Child Conceived Outside of Mother’s Marriage.............. 12-21 1. Paternity Proceeding to Establish Paternity of Child Born While Mother’s Marriage Still Intact....................................................................................................... 12-21 2. Initiating Paternity Proceeding During Mother’s Divorce Proceeding or After Divorce Judgment........................................................................................................... 12-22 3. Attempted Disestablishment of Paternity After Death of Presumptive Father............... 12-25 F. Party Status............................................................................................................................ 12-25 G. Statute of Limitations............................................................................................................ 12-26 1. Filing Suit as Next Friend.............................................................................................. 12-27 2. Furnishing Child Support Tolls Statute of Limitations.................................................. 12-29 3. Acknowledgement of Paternity Tolls Statute of Limitations Unless Rescission............ 12-29 H. Appointment of Counsel or Guardian ad Litem/Court Appointed Special Advocate for Child................................................................................................................................. 12-29 I. Right to Counsel for Parents................................................................................................ 12-31 J. Paternity Petition and Service of Process........................................................................... 12-31 K. Stipulations and Joint Petitions for Paternity.................................................................... 12-33 L. Statutes Regarding Presumed Father..................................................................................... 12-33 M. Case Law Regarding Rebuttable Presumption of Fatherhood............................................... 12-34 N. Blood or Genetic Tests to Determine Paternity.................................................................. 12-38 1. Admissibility of Test Results.......................................................................................... 12-40 2. Effect of Test Results...................................................................................................... 12-40 O. Default Judgment.................................................................................................................. 12-41 P. Child Support........................................................................................................................ 12-42 Q. Costs and Fees....................................................................................................................... 12-45 © 2017 All Rights Reserved Ch. 12-1 Chapter 12 - Paternity R. Child Custody and Parenting Time..................................................................................... 12-46 1. Custody Reports by Probation Officer.......................................................................... 12-48 2. De Facto Custodian........................................................................................................ 12-48 3. Issues of Domestic Violence.......................................................................................... 12-49 4. Visitation and Parenting Time Guidelines.................................................................. 12-50 5. Modification of Custody or Parenting Time................................................................ 12-51 6. Custody Determination or Modification Involving a Third-Party Custodian.......... 12-56 7. Custody, Parenting Time, and Military Service....................................................... 12-58 S. Prior Paternity Adjudication May Bar Relitigation Under Theory of Res Judicata...... 12-59 T. Motion to Set Aside Paternity Judgment............................................................................ 12-60 U. The Child’s Surname............................................................................................................ 12-61 V. ASSISTED REPRODUCTIVE TECHNOLOGY A. Establishing and Disestablishing Maternity........................................................................ 12-63 B. Establishing Paternity After Artificial Insemination......................................................... 12-65 VI. PATERNITY PROCEEDINGS AND ADOPTION A. Putative Father Registry....................................................................................................... 12-68 B. Inability to Pursue Paternity Proceeding............................................................................ 12-69 C. Putative Father’s Duty to Give Notice and Rights of Prospective Adoptive Parents.......... 12-71 D. Expedited Paternity Proceedings and Blood Tests............................................................. 12-72 VII. ESTABLISHING PATERNITY WITH A PATERNITY AFFIDAVIT........................... 12-72 A. Requirement for Paternity Affidavit.................................................................................... 12-73 B. Execution of Affidavit with Health Department.................................................................. 12-75 C. Obtaining Child Support with Affidavit............................................................................. 12-75 D. Setting Aside a Paternity Affidavit....................................................................................... 12-75 E. Use of Paternity Affidavit by Biological Parents Who Marry After Birth of the Child..................................................................................................................................... 12-79 VIII. ESTABLISHING OR DISESTABLISHING PATERNITY IN DISSOLUTION PROCEEDINGS.................................................................................................................. 12-80 A. Disestablishing Paternity in Dissolution Proceeding.......................................................... 12-80 B. GAL Appointment Required When Presumed Father Challenged in Divorce Proceeding.. 12-83 C. Laches and Equitable Estoppel............................................................................................ 12-83 D. Awarding Custody and Visitation to Husband Who is Not Biological Father................. 12-85 © 2017 All Rights Reserved Ch. 12-2 Chapter 12 - Paternity CHAPTER 12 PATERNITY I. OVERVIEW OF LEGAL PROCEEDINGS TO DETERMINE PATERNITY When a child is born during the marriage of the mother and the mother’s husband it is presumed that the child is the biological and legal child of the mother and the husband. See IC 31-14-7-1 (presumed fathers); IC 31-9-2-15 (definition of child born in wedlock). It is generally not necessary to obtain a legal determination of this presumed fatherhood unless paternity is challenged, or challengeable, in a legal proceeding.
Load more

Recommended publications
  • Truth Or 'Collateral Damage'?
    Truth or ‘collateral damage’? Legal parentage, bio-genetic parentage and children’s perspectives Hannah Robert https://orcid.org/0000-0002-4243-1242 Submitted in total fulfilment of the requirements of the degree of Doctor of Philosophy August 2018 Melbourne Law School The University of Melbourne 1 ABSTRACT This study explores the operation of legal parentage within Australian family law through analysing judgments and legislation in ‘misattributed fatherhood’ cases – where the person who is publicly identified or assumed to be the legal father is shown not to be genetically related to the child. It argues that legal parentage currently performs four different, bundled, functions: recording the child’s origins, designating default parental responsibility, defining the child’s legal kinship identity and assigning economic responsibility. In these judgments, judges generally re‐align the child’s legal parentage to match the factual finding regarding the child’s genetic parentage. This often erases the status of a social father as a legal father, and sometimes identifies men who are genetic fathers, but who have not parented the child, as legal parents. In the process, a child’s legal identity and legal kinship relationships may be radically and retrospectively rewritten, with little space for judges to consider the impacts for the child in question, or the child’s own understandings of their legal kinship identity or relationships. Binding these four functions together within legal parentage is rhetoric (judicial, legislative and social) which frames biogenetic parentage as ‘true’ parentage. This ‘biotruth’ rhetoric conflates legal parentage as a question of law with the factual enquiry as to a child’s progenitors.
    [Show full text]
  • Articles Contractualizing Custody
    ARTICLES CONTRACTUALIZING CUSTODY Sarah Abramowicz* Many scholars otherwise in favor of the enforcement of family contracts agree that parent-child relationships should continue to prove the exception to any contractualized family law regime. This Article instead questions the continued refusal to enforce contracts concerning parental rights to children’s custody. It argues that the refusal to enforce such contracts contributes to a differential treatment of two types of families: those deemed “intact”—typically consisting of two married parents and their offspring—and those deemed non-intact. Intact families are granted a degree of freedom from government intervention, provided that there is no evidence that children are in any danger of harm. Non-intact families, by contrast, are subject to the perpetual threat of intervention, even in the absence of harm. The result of this two-tier system is that non-intact families are denied the autonomy and stability that intact families enjoy, to the detriment of parents and children alike. The goal of this Article is to address inconsistent scholarly approaches to custody agreements, on the one hand, and parentage agreements, on the other. Marital agreements about children are largely unenforceable, and even scholars who otherwise favor the enforcement of marital agreements largely approve of this approach, concurring that a court should be able to override a contract concerning children’s custody if it finds that enforcement is not in the children’s best interests. By contrast, those who write about parentage agreements, such as those made in the context of assisted reproductive technology or by unmarried, single, or multiple (i.e., more than two) parents, are more likely to favor the enforcement of such agreements.
    [Show full text]
  • The Basis for Legal Parentage and the Clash Between Custody and Child Support
    THE BASIS FOR LEGAL PARENTAGE AND THE CLASH BETWEEN CUSTODY AND CHILD SUPPORT LESLIE JOAN HARRIS* [T]he importance of the familial relationship, to the individuals involved and to the society, stems from the emotional attachments that derive from the intimacy of daily association, and from the role it plays in “promot(ing) a way of life” through the instruction of children, as well as from the fact of blood relationship. No one would seriously dispute that a deeply loving and interdependent relationship between an adult and a child in his or her care may exist even in the absence of blood relationship.1 If the genes don’t fit, you must acquit; No DNA, No Pay.2 INTRODUCTION During the year-long process of drafting a new paternity law for Oregon,3 one of the most hotly contested issues was on what basis trial judges could disregard evidence that a legal father might not be the biological father. Some in the group that drafted the proposal—lawyers as well as fathers’ rights advocates—fervently argued against allowing a trial judge to consider the child’s best interests in making this decision.4 Some of these advocates spoke for angry men who call * Dorothy Kliks Fones Professor, University of Oregon School of Law. Thanks very much to June Carbone, Caroline Forell, and Merle Weiner for commenting on a prior draft. Thanks also to Jennifer Drobac for organizing the first Midwestern conference, which was lively and interesting. This research was supported by a summer grant from the University of Oregon School of Law.
    [Show full text]
  • ANALYSIS / APPROACH / SOURCE / STRATEGY: GENERAL STUDIES PRE 2020 PAPER - TEAM VISION IAS Observations on CSP 2020
    ... Inspiring Innovation VISION IAS™ www.visionias.in www.visionias.wordpress.com “The significant problems we face cannot be solved at the same level of thinking we were at when we created them." - Albert Einstein ANALYSIS / APPROACH / SOURCE / STRATEGY: GENERAL STUDIES PRE 2020 PAPER - TEAM VISION IAS Observations on CSP 2020 • This year the paper appeared to be on the tougher side and the options framed were confusing. • The static portions like History, Polity, Geography, Economics, etc. as expected were given due weightage. • Questions in almost all the subjects ranged from easy to medium to difficult level. Few unconventional questions were also seen. This year many questions were agriculture related which were asked from geography, environment and economics perspective. • Few questions asked by UPSC, although inspired by current affairs, required overall general awareness. For instance the questions on Indian elephants, cyber insurance, G-20, Siachen glacier, etc. • Polity questions demanded deeper understanding of the Constitution and its provisions. The options in polity questions were close but very easy basic fundamental questions like DPSP, Right to Equality, etc were asked from regular sources like Laxmikanth. Few Questions covering the governance aspect like Aadhar, Legal Services, etc were also given weightage. • In the History section, Ancient India questions were given more weightage unlike in the previous years, and their difficulty level was also high. Art & Culture and Medieval Indian history also had tough questions. However, the modern history section was of moderate level difficulty overall. • Environment questions unlike previous years did not focus on International climate initiatives and bodies. This year focus lay on environmental issues, application of technology and related concepts like benzene pollution, steel slag, biochar, etc.
    [Show full text]
  • Multiple Parents/Multiple Fathers Nancy E
    University of Florida Levin College of Law UF Law Scholarship Repository Faculty Publications Faculty Scholarship 2007 Multiple Parents/Multiple Fathers Nancy E. Dowd University of Florida Levin College of Law, [email protected] Follow this and additional works at: http://scholarship.law.ufl.edu/facultypub Part of the Family Law Commons Recommended Citation Nancy E. Dowd, Multiple Parents/Multiple Fathers, 9 J.L. & Fam. Stud. 231 (2007), available at http://scholarship.law.ufl.edu/ facultypub/459 This Article is brought to you for free and open access by the Faculty Scholarship at UF Law Scholarship Repository. It has been accepted for inclusion in Faculty Publications by an authorized administrator of UF Law Scholarship Repository. For more information, please contact [email protected]. Multiple Parents/Multiple Fathers Nancy E. Dowd Multiple parents, especially multiple fathers, are a social reality but not a legal category.1 The assumption that every child has, or should have, two, but * Chesterfield Smith Professor of Law, Levin College of Law, University of Florida. This paper was first presented at the University of Oregon School of Law at a conference organized by Professor Leslie Harris, "Protecting Children's Need for Nurturance: Proven Strategies and New Ideas," April 24-25, 2006. Professor Harris organized a lively and thought-provoking conference that ultimately led to this written symposium. I am grateful for her leadership and the dialogue sparked by the conference, including conversations with Melanie B. Jacobs, June Carbone, Marsha Garrison and Professor Harris. I have also benefited from discussions with my colleagues Lee Ford Tritt and Barbara Bennett Woodhouse.
    [Show full text]
  • Same-Sex Couples: Their Rights As Parents, and Their Hic Ldren's Rights As Children Kathy T
    Santa Clara Law Review Volume 48 | Number 4 Article 8 1-1-2008 Same-Sex Couples: Their Rights as Parents, and Their hiC ldren's Rights as Children Kathy T. Graham Follow this and additional works at: http://digitalcommons.law.scu.edu/lawreview Part of the Law Commons Recommended Citation Kathy T. Graham, Symposium, Same-Sex Couples: Their Rights as Parents, and Their Children's Rights as Children, 48 Santa Clara L. Rev. 999 (2008). Available at: http://digitalcommons.law.scu.edu/lawreview/vol48/iss4/8 This Symposium is brought to you for free and open access by the Journals at Santa Clara Law Digital Commons. It has been accepted for inclusion in Santa Clara Law Review by an authorized administrator of Santa Clara Law Digital Commons. For more information, please contact [email protected]. SAME-SEX COUPLES: THEIR RIGHTS AS PARENTS, AND THEIR CHILDREN'S RIGHTS AS CHILDREN Kathy T. Graham* I. INTRODUCTION Fifty years ago, the American family usually consisted of a married couple with children. When we thought of family, we thought of relationships created by affinity, consanguinity, or by adoption. Over the past years, the American family has changed in a number of ways. Divorce has changed the fabric of our society by transforming a number of families into single parent families. Divorce is no longer an unusual occurrence; in fact, it is commonplace.' After remarriage, the family unit often transforms again with a new marital partner becoming the stepparent to children from a previous union.2 A number of parents also choose to have children without marrying and choose to raise their children outside marriage.3 Along with these changes, or perhaps in part because of these changes, same-sex couples are more visible in our society.
    [Show full text]
  • What Is Science-Based Bioethics?
    Science-based Bioethics Ch. 1 Introduction Loike & Fischbach Chapter One What is Science-based Bioethics? Introduction Each year, biotechnology bravely ventures into unexplored scientific territory. The year 2016 was no exception: The number of scientific breakthroughs that emerged during this year is overwhelming with gene editing (CRISPR) technologies, gene drives to eliminate harmful mosquitos, and synthetic DNA topping the list. As will be discussed in Chapter Eight, scientists have developed ingenious methods to edit the DNA code of the human genome in cells, embryos, and human beings. Equally astonishing are the reports of two new synthetic DNA bases that have been synthesized. Applying this synthetic biology technology, scientists have expanded the DNA code from 4 to 6 base pairs (Malyshev et al., 2014). Yet, the real dangers of gene editing, synthetic biology, and the creation of a synthetic human genome remain unknown, raising the question whether humankind is dramatically overstepping innate ethical boundaries. In May of 2016, a closed door meeting convened to discuss the issue of constructing an entire human genome in a cell line, a project prospectively titled ‘HGP-Write: Testing Large Synthetic Genomes in Cells’. As the New York Times reports, the meeting was invite-only and “The nearly 150 attendees were told not to contact the news media or to post on Twitter during the meeting.” In the past year, neuroscience research has led to countless innovations as well. Selected examples include: a) stem cell and genetic technologies to enhance the cognition and learning potential of mice, b) brain rejuvenation of older mice to their youthful plasticity with stem cell technologies, c) artificial intelligence in human-like robots (see https://www.youtube.com/watch?v=W0_DPi0PmF0 for a dramatic video about human-like robots), and d) genetically modified bacteria that can function as biological circuits.
    [Show full text]
  • Requesting a Paternity Test Law
    Requesting A Paternity Test Law Unshrived Hans insalivating, his case dialysed propagandize comically. Ageing and made-to-order Pen rubberising almost lividly, though Sean isomerize his karakuls temporize. Carl interfuse incommunicatively if overcorrect Godwin effs or disagree. Do with a paternity proceedings to steal your interest ownership act, a law clearly looks like knowing Schedule a law requires genetic test results as requested genetic marker tests disprove paternity? Court law case is not obtain at this. In a paternity case, of else tow the court system besides deciding who the death is? Hart is a family law attorney in Houston, Texas. If your ex petitions the court, they will assess the situation and make the decision whether or not to order a paternity test. It does a social security numbers, we will i try this context in her husband will be brought a way of laws, tests find out? Without a Court okay on paternity, the procedure party really can no recourse. The third monograph will address the issue of responsibility for child support when paternity has been disestablished. Until then, he bear no legal rights in different child. However, which did nothing to pursue acclaim and himself not request genetic testing. How do unmarried parents establish paternity? There goes no provision to recoup support given the adjudicated father never paid prior to the dull to support aside being filed. This case involved three separate law suits, which were consolidated for appeal. The law attorney. My experience was one each time. Paternity may be established in tree different ways and fairly often involve access to court.
    [Show full text]
  • Same-Sex Marriage and Disestablishing Parentage: Reconceptualizing Legal Parenthood Through Surrogacy Michael S
    University of Minnesota Law School Scholarship Repository Minnesota Law Review 2015 Same-Sex Marriage and Disestablishing Parentage: Reconceptualizing Legal Parenthood Through Surrogacy Michael S. Deprince Follow this and additional works at: https://scholarship.law.umn.edu/mlr Part of the Law Commons Recommended Citation Deprince, Michael S., "Same-Sex Marriage and Disestablishing Parentage: Reconceptualizing Legal Parenthood Through Surrogacy" (2015). Minnesota Law Review. 194. https://scholarship.law.umn.edu/mlr/194 This Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in Minnesota Law Review collection by an authorized administrator of the Scholarship Repository. For more information, please contact [email protected]. DEPRINCE_6fmt 1/3/2016 1:01 PM Note Same-Sex Marriage and Disestablishing Parentage: Reconceptualizing Legal Parenthood Through Surrogacy Michael S. DePrince* Recently married, Anne and Andrew decide they want to have their first child. After multiple failed attempts, the couple learns that Andrew has a low sperm count, rendering him func- tionally infertile. Desiring a child that is genetically related to at least one of them, Anne and Andrew pursue alternative bio- logical reproduction in lieu of adoption. They obtain sperm from an anonymous donor and Anne undergoes artificial insemina- tion, resulting in a viable pregnancy. Shortly before the child‘s birth, however, the couple files for divorce. At this time, An- drew maintains that he is not the child‘s genetic father and, consequently, should not be responsible for the child upon the dissolution of the marriage. To the contrary, Anne indicates that notwithstanding biology, Andrew is equally the child‘s le- gal parent.
    [Show full text]
  • Revisiting the Presumption of Legitimacy in the Same-Sex Couples Era
    ARTICLES PRESUMING WOMEN: REVISITING THE PRESUMPTION OF LEGITIMACY IN THE SAME-SEX COUPLES ERA ∗ SUSAN FRELICH APPLETON INTRODUCTION ............................................................................................... 228 I. TRACING THE PRESUMPTION’S TRAJECTORY IN TRADITIONAL CASES .................................................................................................. 232 II. PRESUMING WOMEN: LESBIAN COUPLES............................................ 237 A. A Gendered Rule in an Increasingly Gender-Neutral Regime .... 237 B. Extending the Presumption.......................................................... 240 C. Revisiting the Presumption’s Objectives and Policies in This New Context ................................................................................ 242 1. Child Welfare ........................................................................ 243 2. Public Funds.......................................................................... 246 3. Public Norms: The Model Family......................................... 248 4. Patriarchy and Husbands’ Vanity.......................................... 251 a. “Biological Reality” Versus Appearances...................... 251 b. Ownership of Children .................................................... 255 III. THE PROBLEM CHILD: GAY MALE COUPLES....................................... 260 A. Extending the Presumption to Men: Ignoring Gestation or Recognizing Three Legal Parents................................................ 262 B. A Limited Extension: Presuming
    [Show full text]
  • Testimony Before the Committee on the Judiciary And
    Testimony of Amee Vora Staff Attorney, Family/Domestic Violence Law Unit Legal Aid Society of the District of Columbia Before the Committee on the Judiciary & Public Safety Council of the District of Columbia Public Oversight Hearing Regarding the Office of the Attorney General February 11, 2019 The Legal Aid Society of the District of Columbia1 submits the following testimony regarding the performance of the Child Support Services Division (CSSD) of the Office of the Attorney General (OAG), the agency tasked with initiating child support cases, establishing and enforcing support orders, and collecting child support. Our testimony highlights two important areas that warrant the agency and the Council’s attention: 1. The need for improvements to internal trainings on key areas of substantive child support law, as well as cultural competency; and 2. The need for the modernization of the District’s outdated paternity law, as well as agency-level reforms to ensure the fair resolution of cases in which paternity is in doubt. Legal Aid has significant experience litigating against attorneys from OAG, and has long represented both custodial and noncustodial parents in child support cases in the District of Columbia. Starting in 2011, Legal Aid and another legal services provider, Bread for the City, received Access to Justice grant money from the D.C. Bar Foundation to fund a Child Support Community Legal Services Project. Through this Project, we operate the Child Support Resource Center, which provides court-based legal services at the Parentage & Child Support (P&S) Branch of the D.C. Superior Court. Five days per week, attorneys from Legal Aid and Bread for the City provide legal information, advice, and same-day temporary representation to custodial and non-custodial parents in their paternity and child support cases.
    [Show full text]
  • Interstate Recognition of Parentage in a Time of Disharmony: Same-Sex Parent Families and Beyond
    Interstate Recognition of Parentage in a Time of Disharmony: Same-Sex Parent Families and Beyond COURTNEY G. JOSLIN* In a number of recent cases, litigants have argued that states have the authority to disregard prior parentage adjudications when those determinations violate the forum's law and policy on lesbian and gay parenting. The Article offers two contributions to the analysis of these interstate parentage cases. The first contribution is doctrinal. Drawing upon recent legal scholarship about interstate recognition of adoption judgments, the Article demonstrates that other forms of parentage adjudications, including those made in the context of otherwise modifiable orders such as child custody and support orders, are entitled to exacting respect under the FullFaith and Credit Clause. The second contribution is normative. Thus far, the scholarship on these interstateparentage cases has been limited largely to considerationof their implicationsfor other same-sex parentfamilies. Lesbian and gay parenting is not, however, the only area of parentage law where the states have adopted widely divergent rules based on moral or policy concerns. To the contrary,parentage has become an increasingly contestedarea of law. This Article seeks to fill the gap in the literature by considering the potential ripple effects of these same-sex parent cases in two other areas of parentagelaw--surrogacy and paternity disestablishment. I. INTRODUCTION After several years together as a committed same-sex couple, Lisa and Janet Miller-Jenkins had a child together.1 Unfortunately, as is true for many * Acting Professor of Law, University of California-Davis School of Law. I thank Afra Afsharipour, Keith Aoki, Katherine Florey, Joan Heifetz Hollinger, Lisa C.
    [Show full text]