Presentation on theme: "DISESTABLISHING PATERNITY WORKSHOP PATRICK QUINN ESQ. ALLEGHENY COUNTY, PA. ERICSA 50 th Annual Training Conference & Exposition ▪ May 19 – 23 ▪ Hilton."— Presentation transcript:
DISESTABLISHING PATERNITY WORKSHOP PATRICK QUINN ESQ. ALLEGHENY COUNTY, PA. ERICSA 50 th Annual Training Conference & Exposition ▪ May 19 – 23 ▪ Hilton Orlando Lake Buena Vista, Florida
Preserve the marriage and intact family Protect children from suffering the emotional trauma of discovering that the husband is not the father. and
1. Does the presumption of paternity apply (within a marriage & an intact family)? IF YES: Has it been rebutted ( non-access or impotency ) or is it inapplicable ( no longer intact family) 2. If presumption has been rebutted or is inapplicable, does paternity by estoppel apply? 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.
Evidence of fraud. must be considered and may alter the application of paternity by estoppel. If a father later discovers he is not the biological father and wants to avoid the strict application of paternity by estoppel, the father must prove fraud and immediately cease a parental relationship with the child. The father must show he would not have held the child out as his own child if it were not for the mother's fraudulent conduct. The courts have refused to apply estoppel because a mother's extramarital affair and subsequent concealment of that affair rose to the level of fraud.
…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 then prove that the estoppel of paternity doctrine does not apply because either there was never a parental relationship with the child and/or the mother committed fraud in establishing paternity.
MOTHER/ WIFE HUSBAND/ PRESUMED FATHER PUTATIVE FATHER
Mother v. the Husband : The legal rationale behind the requirement that the mother file a case against the husband is the presumption of paternity. Even though the mother and the husband agree that the husband is not the father of Baby Doe, the presumption of paternity usually needs to be addressed. Ultimately, a judicial determination on the presumed paternity will be made based upon the specific facts of the case.
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. The Court may render a decision based upon the testimony or may order genetic paternity tests. Mother v. the Husband: (cont.) Consideration of best interest of the child?
PIQ (April 28, 2003) STATE LAW OR LOCAL PROCEDURE DETERMINES WHO PAYS
42 U.S.C. §666(a)(5)(E) (45 CFR (a)5)
Federal law requires all states to have law which permits: 1. Recession within 60 days. 2. Beyond 60 days challenge must be on basis of fraud, duress or material mistake of fact. 42 U.S.C. § 466 (a)(5)(D) Process controlled by State law IV-D funding for genetic tests available in IV-D cases.
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)).
FRAUD DURESS MISTAKE OF FACT
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 occur in state where determination is made. é Query: What if all parties have moved from state? é Many states now addressing by specific statute.
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 statute others by case law many states have draft legislation addressing this issue
CAN BE SPECIFIC TIME FRAME (ex. within two years of birth) CAN BE SPECIFIC REASON (ex. fraud, duress)
The 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.
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 child into his home, and provided support for the child during the child's lifetime.
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 putative father to be the father of the child and enter a temporary support order; or · Refer the matter to a conference for the establishment of support.