program since its inception, but the state laws on parentage have changed dramatically since 1975 ... states enact the U
Reprinted/recirculated with permission from the April 2018 issue of NCSEA’s Child Support Communique (CSQ). Want more in-depth content like this article? Become a NCSEA member today! Join at www.ncsea.org/membership The New and Improved Uniform Parentage Act by Diane Potts Parentage establishment has been an integral part of the Title IV-D child support program since its inception, but the state laws on parentage have changed dramatically since 1975. Following a series of U.S. Supreme Court decisions that precluded discrimination against children born to unmarried parents,1 the National Conference of Commissioners on Uniform State Laws, now the Uniform Law Commission (ULC), approved the original Uniform Parentage Act (UPA). The 1973 UPA broke new ground when it declared equality for parents and children without regard to the parents’ marital status. In 2017, the ULC enacted a new, groundbreaking UPA, following a multiyear collaborative process by the drafting committee and official observers. Washington became the first state to enact the new UPA in March 2018, and both Vermont and Rhode Island have UPA legislation pending. While there is no federal requirement that states enact the UPA, the new model legislation provides states with a comprehensive body of law to deal with complex and emotionally charged parentage issues while meeting the state law requirements of Title IV-D of the Social Security Act. The 2017 revisions to the UPA addressed several issues. First, analogous to the 1973 UPA, the new UPA seeks to ensure the equal treatment of children born to same-sex couples. In Obergefell v. Hodges, 135 S. Ct. 2584 (2015), the U.S. Supreme Court held that laws barring marriage between two people of the same sex are unconstitutional. Even more recently, in June 2017, the Supreme Court held that a state may not deny married same-sex couples recognition on their children’s birth certificates that the state grants to married different-sex couples.2 To avoid potential constitutional infirmity of a gender-specific parentage law, the new UPA has provisions that apply equally to different-sex and same-sex couples. The revisions include broadening the marital presumption of parentage so that a child born to a same-sex married couple will be presumed to be the legal child of the birth mother’s 1
See, for example, United States v. Clark, 445 U.S. 23 (1980); Gomez v. Perez, 409 U.S. 535 (1973); Weber v. Aetna Casualty & Surety Co., 406 U.S. 164 (1972); Levy v. Louisiana, 391 U.S. 68 (1968). 2 Pavan v. Smith, 137 S. Ct. 2075, 2078-79 (2017).
spouse. Similarly, the holding out provision now applies equally to same-sex couples. Therefore, an individual—male or female—will be presumed to be the parent of a child if he or she resided in the household with the child for the child’s first two years of life and openly held out the child as his or her own. Equal treatment also applies to acknowledgments of parentage. Under the new UPA, an intended or a presumed parent, in addition to the traditional alleged genetic father, may sign an acknowledgment with the birth mother that establishes a legal parent-child relationship.3 This new provision will allow some non-biological parents to establish parentage without court involvement through an acknowledgment filed with the applicable state agency. As with traditional paternity acknowledgments, parentage acknowledgments under the 2017 UPA must be considered legal findings of parentage unless timely rescinded, cannot be ratified by a court, must be given full faith and credit, and can be challenged only on the basis of fraud, duress, or material mistake of fact. Second, the new UPA includes a provision for the establishment of a de facto parent as a legal parent of a child. The drafting committee recognized that most states currently extend at least some parental rights to people who, while not biological parents, functioned as parents with the consent of the child’s legal parent—most often the birth mother. However, the committee also was concerned about unwarranted litigation claiming de facto status without factual support, as well as unsuspecting and unintending stepparents facing claims for child support based on a de facto parent theory. In the end, the new UPA contains safeguards, including increased standing requirements and robust substantive standards that must be established before a court can adjudicate an individual to be a de facto parent. Among other requirements, the individual must have • • • •
lived with the child as a regular member of the child’s household for a significant period; held the child out as his or her own; established a bonded and dependent parental relationship with the child; formed the relationship with the support of the child’s parent, which means that an individual cannot unilaterally become a de facto parent.
To address the stepparent concern, only the alleged de facto parent can file an action to be established as a legal parent. Finally, an action may be filed only before the death of the child, the death of the alleged de facto parent, or the child’s 18th birthday.
3
An intended parent is defined in the UPA as someone who manifests an intent to be legally bound as a parent of a child conceived by assisted reproduction. See Unif. Parentage Act § 102(13) (2017). A presumed parent, as discussed earlier, is either married to the birth mother or holds himself or herself out for the first two years as the child’s parent. See Unif. Parentage Act §§ 102(17), 204(a) (2017).
Third, one of the difficulties faced by courts throughout the country is how to resolve competing parentage claims. Because claims of parentage today may be based marriage, genetic tie, intent, or close bond to the child, the new UPA provides a procedure for resolving cases when more than one individual (besides the birth mother) claims parentage. When there are competing parentage claims, the UPA requires the court to adjudicate parentage in the best interest of the child, based upon the following factors: • • • • • •
age of the child length of time during which each alleged parent assumed a parental role for the child nature of the relationship between the child and each alleged parent harm to the child if the relationship with an alleged parent is not recognized basis for each alleged parent’s claim other equitable factors
Importantly, these factors also are applicable if a presumed parent seeks to disestablish parentage within the time frames set forth in the UPA, along with two additional factors: the discovery that the individual may not be the genetic parent and the length of time between the discovery and the commencement of the proceeding. The 2017 UPA affords states two options for the number of legally recognizable parents for a child. The first option is that a court is prohibited from adjudicating more than two parents for a child. The second option provides the court discretion to adjudicate more than two parents for a child if the court finds that it would be detrimental to the child to recognize only two parents. The second option reflects an emerging trend, in both legislation and case law, to recognize that in rare circumstances a court should have the ability to establish parentage in a manner that will not cause harm to the child. The fourth issue addressed in the 2017 UPA involves parentage of children born as a result of sexual assault. The U.S. Congress adopted the Rape Survivor Child Custody Act in 2015, providing financial incentives for states to enact a “law that allows the mother of any child that was conceived by rape to seek court-ordered termination of the parental rights of her rapist regarding that child, which the court shall grant upon clear and convincing evidence of rape.” The UPA contains a new provision that allows a court to deny a petition to establish a parent-child relationship brought by the perpetrator of a sexual assault that resulted in the conception of the child, if established by clear and convincing evidence.
Finally, the new UPA includes a new Article 9 that addresses the right of a child born through assisted reproduction to access medical and identifying information regarding any gamete (sperm and egg) donors. Because the percentage of children conceived through assisted reproduction continues to rise, the ULC believed it to be increasingly important for states to address the right of children to access information about their gamete donor. The new Article 9 does not require the disclosure of a gamete donor but it does require facilities to (1) collect identifying information and medical history information from donors, and (2) obtain a declaration from donors on whether or not they would like their identity disclosed upon request once the child turns 18 years of age. In addition, the new UPA requires those facilities to make a good faith effort to disclose nonidentifying medical history information regarding the donor upon request. In conclusion, the new and improved UPA establishes a model parentage law that implements the recent U.S. Supreme Court’s decisions in Obergefell and Pavan. The 2017 UPA also provides precise and unambiguous laws regarding legal parentage establishment, including procedures, standing, time frames, and relevant factors for courts to consider. Like the 1973 UPA’s commitment to equality for children born to unwed parents, the new UPA protects children born to same-sex parents by ensuring that those parents have all of the legal parental rights and obligations enjoyed by different-sex parents.
Diane Potts joined the Center for the Support of Families as a Senior Associate in 2015, after serving for 6 years as Illinois Deputy Attorney General for Child Support. During her 20-year career with the Office of the Illinois Attorney General, Diane argued over 100 cases on behalf of the State in the Illinois Supreme Court, Appellate Court, and the Seventh Circuit Court of Appeals. In 2015, she won the Lifetime Achievement Award from the Illinois Family Support Enforcement Association. Diane is a frequent speaker at National Child Support Enforcement Association Conferences, and at other national events including annual conferences for WICSEC and ERICSA. She also traveled to Hong Kong in 2015 and Germany in 2013 to present at the International Recovery of Child Support and Family Maintenance Conferences. On September 1, Diane became the President of NCSEA and has served as its past President-Elect, past Secretary, and a member of NCSEA’s Board of Directors since 2013. She also is the current Chair of NCSEA’s Legislative Education Subcommittee, and was the co-chair of NCSEA’s 2015 and 2016 Policy Forums. In 2016, Diane was appointed as NCSEA’s official observer to the Uniform Law Commission’s amendment of the Uniform Parentage Act. She served for 6 years on the Illinois Child Support Advisory Committee, and was a member of the legislative drafting team for the Illinois Parentage Act (2016) and the income shares child support legislation (2016). Diane received her law degree from Washington University Law School and her undergraduate degree from University of Illinois.
