Presentation on theme: "DISESTABLISHING PATERNITY WORKSHOP"— Presentation transcript:
1 DISESTABLISHING PATERNITY WORKSHOP 50CELEBRATES YEARSOF SERVING FAMILIES: THEMAGICIS STILL ALIVEERICSADISESTABLISHING PATERNITY WORKSHOPERICSAPATRICK QUINN ESQ.ALLEGHENY COUNTY, PA.ERICSA 50th Annual Training Conference & Exposition ▪ May 19 – 23 ▪ Hilton Orlando Lake Buena Vista, Florida
2 PRESUMPTION OF PATERNITY VARIES FROM STATE BY STATE Somestatesby case law.Some statesby statute.Constantly evolving law…
3 The basis of the presumption of paternity is to:Preserve the marriage and intact familyProtect children fromsuffering the emotional traumaof discovering that the husbandis not the father.and
4 Genetic test results - are they admissible to rebut or disestablish paternity if the presumption of paternity is applicable?Presumption applies against the mother & father (wife & husband) until a party attempts to disestablish paternity.
5 Two part test:1. Does the presumption of paternity apply (within a marriage & anintact family)? IF YES: Hasit been rebutted (non-accessor impotency) or is itinapplicable (no longerintact family)2. If presumption has been rebutted or is inapplicable, does paternity by estoppelapply?Paternity by Estopple: The legal determination that a person’s (i.e. mother/father/putative father) prior conduct precludes that person from denying, disestablishing, or seeking support from a third party for the child regardless of genetic test results.
6 Further AnalysisEvidence of fraud. must be considered and may alter the application of paternity by estoppel.The father must show he would not have held thechild out as his own child if it were not for themother's fraudulent conduct.The courts have refused to applyestoppel because a mother'sextramarital affair and subsequentconcealment of that affair rose tothe level of fraud.If a father later discovers he is not the biological father and wantsto avoid the strict application of paternity by estoppel, the fathermust prove fraud and immediately cease a parental relationshipwith the child.
7 Continued Developments in Case Law… …have not altered these traditional paternity doctrines, but may be a factor in a paternity disestablishment proceeding.A person who relied on a misrepresentation of paternity should not be permitted to suffer harm because of the estoppel doctrine.A person must provide the required proof to avoid the application of estoppel.The person must thenprove that the estoppel of paternitydoctrine does not apply becauseeither there was never a parentalrelationship with the child and/orthe mother committed fraud inestablishing paternity.
8 PARTIES to disestablishment action in marriage presumption cases:HUSBAND/PRESUMED FATHERMOTHER/WIFEPUTATIVEFATHERANY ONE OF THE THREE CAN CHALLENGE THE PRESUMPTION
9 Handling Cases when Parties Agree that the Husband is not the FatherMother v. the Husband:The legal rationale behind the requirement that themother file a case against the husband is thepresumption of paternity.Even though the mother and the husband agree that thehusband is not the father of Baby Doe, the presumptionof paternity usually needs to be addressed.Ultimately, a judicial determination on the presumedpaternity will be made based upon the specific factsof the case.
10 Mother v. the Husband: (cont.) Because the mother and the husband agree that the husband is not the father of Baby Doe, there would likely be a determination by the Court disestablishing the paternity of Baby Doe by declaring that the presumption of paternity does not apply.Consideration of best interest of the child?The Court may render a decision based upon the testimony or may order genetic paternity tests.
11 GENETIC TESTING… Services NOT required, however, PIQ (April 28, 2003)Services NOT required, however,IV-D funding is available if IV-D agencyprovides services in challenge.Federal funding available forgenetic test costs in IV-D cases.STATE LAW OR LOCAL PROCEDURE DETERMINESWHO PAYS
12 Rebuttable Presumption of paternity FEDERAL LAW PERMITS STATES TO “CHOOSE” IFPATERNITY ACKNOWLEGDMENT CONSTITUTES:Rebuttable Presumptionof paternityB. Conclusiveevidence ofpaternity42 U.S.C. §666(a)(5)(E) (45 CFR (a)5)
13 Affidavit of Parentage or Acknowledgement REVOCATION OF THEAffidavit of Parentage or Acknowledgementof PaternityFederal law requires all statesto have law which permits:1. Recession within 60 days.2. Beyond 60 days challenge must beon basis of fraud, duress ormaterial mistake of fact.Process controlled by State lawIV-D funding for genetic tests available in IV-D cases.42 U.S.C. § 466 (a)(5)(D)
14 Rescission of the Voluntary Acknowledgment of Paternity Either parent who signs a voluntary Acknowledgment of Paternity (PA/CS 611) form can rescind the voluntary acknowledgment within the earlier of the following:Sixty days of the original signing; or:The date of an administrative or judicial proceeding relating to the child, including a conference or a similar proceeding to establish a support order to which the parent is a party (42 U.S.C § 666(a)(5)(D)(ii)).
15 DEFINED BY CASE LAW IN STATES. PROCESS DEFINED BY STATE LAW. JUDICIAL RECISSIONCourt can overturn basedonly on:FRAUDDURESSMISTAKE OF FACT DEFINED BY CASE LAW IN STATES. PROCESS DEFINED BY STATE LAW.
16 Once paternity is established, such determinations are entitled to full faith and credit by the courts(42 U.S.C. § 666(a)(5)(C)(iv))(42 U.S.C. § 666(a)(11)45 CFR (a)(11))é Challenge to paternity must occurin state where determination is made.é Query: What if all parties have movedfrom state?é Many states now addressing byspecific statute.
17 ACKNOWLEDGMENT SIGNED BY BIOLOGICAL FATHER WHEN A LEGAL COMPETING FATHERSACKNOWLEDGMENT SIGNED BYBIOLOGICAL FATHER WHEN A LEGALFATHER EXISTS.STATE LAW AND PROCESSCONTROLS
18 4STATUTE and/or 4CASE LAW SETTING ASIDE COURT ORDEREDPATERNITY ESTABLISHMENTW MUST ADDRESS PREVIOUS COURT ORDERW VACATE?W MODIFY?INDIVIDUAL STATES APPROACH4STATUTE and/or 4CASE LAW
19 STATE REACTIONS/ TRENDS IN PATERNITY DISESTABLISHMENT Hot topic in many states.As outlined in OCSE Publication Policy Interpretation Question – Federal Government acknowledges that paternity disestablishment is a state issue (PIQ-03-01)States widely vary in policy and approach.Some driven by statuteothers by case lawmany states have draft legislation addressing this issue
22 CONTROLLED BY STATE LAW TIME FRAMES:CONTROLLED BY STATE LAWCAN BE SPECIFIC TIME FRAME(ex. within two years of birth)CAN BE SPECIFIC REASON(ex. fraud, duress)
23 EstoppelThe court may find that a putative father is not permitted to contest paternity and/or request genetic testing because of his prior behavior (estoppel issues) or that a paternity action should not proceed because a mother, who was married at the time of the child's birth, has filed against someone other than her husband (presumption of paternity).If estoppel or presumption of paternity is raised by one of the parties or the court, the court may postpone genetic testing until after a hearing is held to resolve the issue.The court may decide that paternity was previously established and there is no right to genetic testing; dismiss the action after finding the action inappropriate; or permit the genetic testing to be performed.
24 Estoppel prevents a person from asserting a claim or right that contradicts what he/she has, said or done before or what has been legally established as true. There are two types of estoppel:· Collateral estoppel prevents a repeated legal action for an issue that was already decided in a prior proceeding; for example, a putative father appears at a conference and does not sign an acknowledgment, but he was the petitioner in a custody action involving the child and asserted that he was the father of the child during that action.·Equitable estoppel prevents a person from challenging a status he/she previously accepted; for example, a putative father appears at a conference and does not sign an acknowledgment, but he has openly held the child out as his own, welcomed the childinto his home, and provided support for the child during the child's lifetime.
25 Default Order(42 U.S.C. §666(a)(5)(H)) (45 CFR (a)(5)(viii)) (45 CFR 303.5(f))If at any point in the establishment of paternity process following service, the putative father fails to appear for a conference, hearing, or genetic testing, the court may:· Enter an Order of Court finding the putativefather to be the father of the child and enter atemporary support order; or· Refer the matter to a conference for theestablishment of support.
26 EVIDENCE: BIG QUESTION: ANCILLARY QUESTION: BURDEN OF PROOF: Are Genetic Tests admissible todisestablish paternity?ANCILLARY QUESTION:BURDEN OF PROOF: Preponderance of evidence? Clear and convincing?
27 ADDRESSING the ISSUES in COURT ORDERSARREARSPAYMENT RECOVERYVISITATIONOTHER? ?