1. © 2006 Thomson Delmar Learning. All Right Reserved. CHAPTER 6 PATERNITY

2. © 2006 Thomson Delmar Learning. All Right Reserved. Proving Paternity Paternity Illegitimate child Children born outside of marriage are typically excluded from most rights – Right to inherit from a parent per the state intestacy laws – Right to sue for wrongful death Paternity Chapter 6

3. © 2006 Thomson Delmar Learning. All Right Reserved. Proving Paternity (continued) Exclusionary behavior was found to violate the U.S. Constitution’s Equal Protection Clause Levy case invalidated state inheritance, custody, and tort laws that put children of unmarried parents at a disadvantage One Side of the Story: Michelle is Expecting The Other Side of the Story: Johnny is Denying Paternity Chapter 6

4. © 2006 Thomson Delmar Learning. All Right Reserved. DNA: To Test or Not To Test Describe a DNA test Paternity Chapter 6

5. © 2006 Thomson Delmar Learning. All Right Reserved. Proving Paternity and Getting Support National Conference of Commissioners on Uniform State Laws – Uniform Parentage Act of 1973 ◦ All children treated equally without regard for the marital status of the parents ◦ The Act established a set of rules that abolished the term illegitimate and established the phrase “a child with no presumed father” Paternity Chapter 6

6. © 2006 Thomson Delmar Learning. All Right Reserved. Proving Paternity and Getting Support (continued) – Changes to the Act of 1973 as proposed in 2000 and amended in 2002 ◦ Meeting the challenges of adapting to recent scientific reproduction developments ◦ Providing guidelines for state Registry of Paternity to deal with the rights of a man who is not an acknowledged, presumed or adjudicated father ◦ Provide comprehensive coverage of genetic testing ◦ Bringing more necessary consistency between the UPA and the 1996 and 2001 versions of UIFSA Paternity Chapter 6

7. © 2006 Thomson Delmar Learning. All Right Reserved. Proving Paternity and Getting Support (continued) Registries of Paternity – Designed to allow fathers to voluntarily go to declare himself the biological father of a child Paternity Chapter 6

8. © 2006 Thomson Delmar Learning. All Right Reserved. Proving Paternity and Getting Support (continued) Uniform Reciprocal Enforcement of Support Act (URESA) – Revised with UIFSA – Created a more effective framework for child support enforcement of interstate cases – Establish and enforce a support order, modify a support order, and determine parentage with or without, an accompanying establishment of support Paternity Chapter 6

9. © 2006 Thomson Delmar Learning. All Right Reserved. Location, Location, Location: Proving Paternity Across America All states required to create statutes to deal with paternity questions Paternity Chapter 6

10. © 2006 Thomson Delmar Learning. All Right Reserved. Location, Location, Location: Proving Paternity Across America (continued) – California law considers a man to be the presumed father if any of the three occur: ◦ The man and natural mother are married 300 days before the child was born ◦ Before the birth of the child, the mother and father attempt to marry ◦ Following the child’s birth, he and the mother are married – He consents to be named as the child’s father – He signs a voluntary promise to support the child as his natural child – He openly acknowledges the child as his own Paternity Chapter 6

11. © 2006 Thomson Delmar Learning. All Right Reserved. Location, Location, Location: Proving Paternity Across America (continued) – Texas Law ◦ If the man refused to take a DNA test then the burden is on him to prove that he is not the father of the child Paternity Chapter 6

12. © 2006 Thomson Delmar Learning. All Right Reserved. Procedure Must Be Followed Federal Government – Title IV-D agencies are part of the federal statutes – Each state required to have a simple civil process for voluntarily acknowledging paternity and a civil procedure for establishing paternity in contested cases – Each state must do its best to secure support for a child Bottom Line Paternity Chapter 6

13. © 2006 Thomson Delmar Learning. All Right Reserved. Make Room for Daddy If the father refuses to admit paternity then the mother has the right to file a complaint for paternity Review a Complaint for Paternity (Exhibit 6:1) Paternity Chapter 6

14. © 2006 Thomson Delmar Learning. All Right Reserved. L A W S U I T Motivation Spelled L A W S U I T Review the Paternity Evaluation Laboratory Report (Exhibit 6:2) What’s the Next Step After a Positive DNA Test? Father could voluntarily agree to help support the child Paternity Chapter 6

15. © 2006 Thomson Delmar Learning. All Right Reserved. What’s the Next Step After a Positive DNA Test? (continued) Mother could go to Court and get an order that provides for: – Determination of parentage – Reasonable expenses for the mothers pregnancy and postpartum disability – Child support – Attorney fees and court costs Paternity Chapter 6

16. © 2006 Thomson Delmar Learning. All Right Reserved. Voluntary Acknowledgement of Paternity Acknowledgement of Paternity to be filed with the State registry of birth records Review the Voluntary Declaration of Paternity (Exhibit 6:3) UPA promotes the importance of a parentage registry Termination of Parental Rights Paternity Chapter 6

17. © 2006 Thomson Delmar Learning. All Right Reserved. Fighting the Biological Father: Hit the Road, Jack! Understand the presumed father laws within your state Paternity Chapter 6

18. © 2006 Thomson Delmar Learning. All Right Reserved. No Facts in Dispute? Summary judgment motion Clear and convincing evidence Preponderance of the evidence Beyond a reasonable doubt The Department of Public Aid ex rel. Vicki Galbraith v. Jeff Jones Paternity Chapter 6

19. © 2006 Thomson Delmar Learning. All Right Reserved. DNA Wins Over Vasectomy Kesselring v. Kesselring Biological Father Battles Presumed Father Prima facie evidence In the Interest of J.W.T., a minor child Paternity Chapter 6

20. © 2006 Thomson Delmar Learning. All Right Reserved. Ethics Alert: Is the alternative law firm following legal and ethical guidelines? Paternity Chapter 6