1. DISESTABLISHING PATERNITY WORKSHOP50
CELEBRATES YEARS
OF SERVING FAMILIES: THE
MAGIC
IS STILL ALIVE
ERICSA
DISESTABLISHING PATERNITY WORKSHOP
ERICSA
PATRICK 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
Some
states
by case law.
Some states
by statute.
Constantly evolving law…

3. The basis of the presumption
of paternity is to:
Preserve the marriage and intact family
Protect children from
suffering the emotional trauma
of discovering that the husband
is 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 & 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.

6. Further Analysis
Evidence of fraud. must be considered and may alter the application of paternity by estoppel.
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.
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.

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 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.

8. PARTIES to disestablishment action in marriage presumption
cases:
HUSBAND/
PRESUMED FATHER
MOTHER/
WIFE
PUTATIVE
FATHER
ANY ONE OF THE THREE CAN CHALLENGE THE PRESUMPTION

9. Handling Cases when Parties Agree that the Husband is not
the 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.

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 agency
provides services in challenge.
Federal funding available for
genetic test costs in IV-D cases.
STATE LAW OR LOCAL PROCEDURE DETERMINES
WHO PAYS

12. Rebuttable Presumption of paternity
FEDERAL LAW PERMITS STATES TO “CHOOSE” IF
PATERNITY ACKNOWLEGDMENT CONSTITUTES:
Rebuttable Presumption
of paternity
B. Conclusive
evidence of
paternity
42 U.S.C. §666(a)(5)(E) (45 CFR (a)5)

13. Affidavit of Parentage or Acknowledgement
REVOCATION OF THE
Affidavit of Parentage or Acknowledgement
of Paternity
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.
Process controlled by State law
IV-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 RECISSION
Court can overturn based
only on:
FRAUD
DURESS
MISTAKE 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 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.

17. ACKNOWLEDGMENT SIGNED BY BIOLOGICAL FATHER WHEN A LEGAL
COMPETING FATHERS
ACKNOWLEDGMENT SIGNED BY
BIOLOGICAL FATHER WHEN A LEGAL
FATHER EXISTS.
STATE LAW AND PROCESS
CONTROLS

18. 4STATUTE and/or 4CASE LAW
SETTING ASIDE COURT ORDERED
PATERNITY ESTABLISHMENT
W MUST ADDRESS PREVIOUS COURT ORDER
W VACATE?
W MODIFY?
INDIVIDUAL STATES APPROACH
4STATUTE 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 statute
others by case law
many states have draft legislation addressing this issue

20. Examples of some state approaches…

21. Examples of some state approaches…

22. CONTROLLED BY STATE LAW
TIME FRAMES:
CONTROLLED BY STATE LAW
CAN BE SPECIFIC TIME FRAME
(ex. within two years of birth)
CAN BE SPECIFIC REASON
(ex. fraud, duress)

23. Estoppel
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.

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 child
into 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 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.

26. EVIDENCE: BIG QUESTION: ANCILLARY QUESTION: BURDEN OF PROOF:
 Are Genetic Tests admissible to
disestablish paternity?
ANCILLARY QUESTION:
BURDEN OF PROOF:
 Preponderance of evidence?
 Clear and convincing?

27. ADDRESSING the ISSUES in
COURT ORDERS
ARREARS
PAYMENT RECOVERY
VISITATION
OTHER? ?

28. Q U E S T I O N S ?