Legitimacy and Paternity

UMDA Paternity Assumptions

(1) husband at time of birth (2) attempted marriage (void/voidable) at time of birth. (3) marriage or attempted marriage after child's birth and husband gives acknowledgement of paternity (4) man receives child into his home and openly holds the child out as his own (5) man acknowledge his paternity of the child in a formal writing without objection from the mother.

7) Establishing Paternity for Unmarried Fathers

- Constitutional Protection (DP & EQ) - Becoming a Putative Father - Paternity Action - Voluntary Acknowledgement

Showing of "Fitness" for Established putative fathers.

At least some unmarried fathers have constitutionally protected interest in relationships with their children. States cannot treat all unwed fathers as non-parents. The extent of each father's constitutional protection depends upon the substantiality of his relationship with his children. The mere existence of a biological link does not establish paternity. However, a father with a real relationship must be first proven as "unfit" before his relationship can be terminated.

9) Defenses Against Being labeled the father

DNA evidence should be used. In the case of married fathers, they should act quickly to rebut because they are automatically put on notice of the assumption of their fatherhood. He should not wait until a later divorce to dispute his paternity. Although, some states still allow paternity disputes at divorce is DNA becomes an issue.

Due Process Protection for Unmarried Father's Parental Rights

Fathers have a constitutional right an opportunity to establish a relationship with their child. Father's are due some kind of notice (having sex might be enough to put them on notice that they may have a child). Once an unwed father has established that relationship, they are entitled to notice before that relationship is terminated.

Notice Given to Father Before Adoption

Generally, a reasonable effort is required to identify and notify the father of a non-marital child before allowing an adoption.

i) Best Interest in Mother's New Husband:

However, even if there is a biological and psychological relationship, SCOTUS has held that the "best interest" still might reside with the father who is in an intact marriage with the biological mother.

5) US Supreme Court Intervention of Legitimacy Laws

Illegitimate children are a "quasi suspect" group and any laws against them are presumed unconstitutional unless they pass intermediate scrutiny. Many laws have been struck down that treat illegitimate and legitimate children differently. As a result, unmarried fathers have gained many custodial rights over their illegitimate children.

Equal Protection for Unmarried Father's Parental Rights

Laws can treat unmarried mothers and fathers differently because they are not similarly situated (Equal Protection). Unwed mothers will naturally begin forming a relationship with their child, whereas unwed fathers will not if they are out of the pictures.

c) Biological Father of Child Born in Another Marriage wants Paternal Rights

The biological must act quickly because the non-biological father will likley become considered a "putative" father in a very short time. If the biological father delays, he will have lost his right.

b) Paternity Action:

The paternity action is a civil proceeding. Most states only require a preponderance of the evidence. They are usually brought by the mother of the State to promote child support enforcement. Can also be brought by a father who wants to voluntarily acknowledge but the mother resists. The judgment usually includes an order for the support of the child in periodic payments and can include cost of the mother's expenses relating to pregnancy and childbirth.

UMDA "Best Interest" Application in Paternity Battle Between Biological Father and Psychological Father

Where more than one man could be the father (1 is a caregiver, other is biological), the court should use the best interest approach. Here, DNA proof will not necessary be enough to prove that the biological father is best interest father.

c) Post-Adoption Disputes brought by Father who later discover's biological children

Where the father only learned of his parentage after the fact, SCOTUS gave the father custody because he had done nothing to lose his parentage interest. However, in most states today, the courts will establish the father as the true parents but allow the adoptive parents to remain legal/custodial guardians.

2) Definition of Legitimacy

a) Defined by the marital status of parents at time of birth. Father's divorce or death before birth usually doesn't affect. b) Legitimacy may be obtained without parental marriage. Most states have agreed that the child of almost any alliance that resembles formal marriage is entitled to legitimate status. (notes have more details).

Statue of Limitations on Asserting Paternity

a) Federal Law: Any time before the child's 18th birthday. b) Uniform Parentage Act: No statute of limitation, it can be established whenever.

4) Traditional Legal Consequences of legitimacy

a) Gen: Illegitimate children would not be heirs to anyone, nor could they have any of their own heirs.

3) The Presumption of Legitimacy

a) General: The law presumes that a child born to a married woman was fathered by her husband. b) Rebuttal: The law generally permits a husband to disprove his paternity, at least if he acts promptly. The Courts are less accepting of third-parties attempting to come in and strip a husband of their paternity and assert themselves. Now, however, many states will allow this to happen by statute.

13) Paternity Disestablishment

a) Once a father has been established as a paternal parent, it will be hard for him to later assert that he is no longer the parent. If the father waits too long, they can only disestablish if (1) there is new discovered evidence or (2) the initial test was improperly conducted. b) Statute of Limitations: Three years from the moment they discovered they might not be the father.

11) Voluntary Acknowledgements of Paternity

a) Statutes give the unmarried father the opportunity to accept his non-marital child by voluntary acknowledgement, typically only if the mother consents, or by bringing a suit to establish his paternity. b) They will have the same effect as a paternity hearing unless the child's mother is already married to a different man. Then, that other man will either need to consent to the acknowledgement or fight it out in a paternity hearing.

12) Child Support Obligations Attach on Finding of Paternity

a) The duty to support exists regardless of whether the father has custody of the child. Illegitimate children, like legitimate children, have a right to support from their parents. b) A mother cannot sign away an unwed father's obligation to pay support for their children.

Court's Denial of Disestablishment

b) Child Best Interest: Sometimes the child will deny the disestablishment of paternity due to the child's interest and not even look to legal principals. If a parent-child relationship is formed that is enough despite any genetic testing. c) Newly Discovered Evidence for a Re Trail: A father should assert all their available defenses the first time. They cannot use DNA proof of their nonbiological connection to establish a new hearing because that defense would have been available during the initial hearing.

UMDA's Guiding Principal in Paternity Issues Actions

the rights of the child (rather than the mother) to obtain what is in the best interest of the child. It seeks to ensure full equality for all children in their legal relationship with both parents, whatever their marital status.