Establishing Paternity

Terms:


Illegitimacy
The condition before the law, or the social status, of a child born out of wedlock; condition of one whose parents were not married to each other at the time of the child’s birth.

Kinship
Relationship by blood.

Legitimacy:
Lawful birth; the condition of being born in wedlock; the opposite of illegitimacy or bastardy.

Out of Wedlock:
The condition of being born to unwed parents or to parents not married to each other.

Paternity:
The state or condition of being a father; the relationship of a father.

Uniform Parentage Act:
A landmark Act that was originally promulgated in 1973 and adopted by 19 states in full and in part by other states (most recent version was revised in 2000 and amended in 2002) by the National Conference of Commissioners on Uniform State Laws. One of its functions was to declare equality for parents and children regardless of the marital status of their parents.

Acknowledged father:
A man who holds himself out as the parent to a child and has established a father-child relationship. It is not necessary that he be the biological father of the child.

Adjudicated father:
A man who has been adjudicated by a court of competent jurisdiction by acknowledgement, paternity test or other means to be the father of a child.

Alleged father:
A man who alleges himself to be or is alleged to be the genetic father or a possible genetic father of a child, but whose paternity has not been determined.

Presumed father:
A man, who by operation of law under Section 204 of UPA (2000), is recognized as the father of the child until that status is rebutted or confirmed in a judicial proceeding.

Putative father:
The alleged or reputed father of a child born out of wedlock.

Equitable estoppel:
A legal concepts which precludes a person from asserting or denying a fact contrary to a position that they have previously established as true. It allows a party to recover in equity when they justifiably relied upon such conduct and would suffer injury if the former is allowed to repudiate the “truth”.

Legitimacy

A child is said to be “illegitimate” if he or she was born out of wedlock. In addition, a child born to parents who later had their marriage annulled was also considered illegitimate. Over the years, states’ statutes have eliminated this label and the children maintain their legitimate status despite the annulment of their parents’ marriage.

Conversely, a child born to parents who are married to each other (or within a specified time thereafter) is considered “legitimate” offspring. This distinction originally developed from the early days of marriage, which was considered a religious obligation and children were only legitimate if they were born to a married couple.

Despite an initial start as an illegitimate child, it is possible to be legitimized. This procedure allows for a child to be declared legitimate under certain circumstances, such as a subsequent marriage of the child’s natural parents or acknowledgement by the natural father or a combination of the two.

EXAMPLE: In the classic novel, The Scarlet Letter by Nathanial Hawthorne, Hester Prynne wore a scarlet letter “A” on her breast to signify she was an adulteress. This status became evident when Hester gave birth to a daughter, Pearl, who was born as a result of this affair. Her husband could not have been the father, since they were geographically separated at the time of Pearl’s conception. At the time (17th century Boston) the scarlet letter and public shaming were punishment for Hester’s sin and her secrecy in failing to identify Pearl’s father. In addition, Pearl was a social outcast, carrying the stigma of an illegitimate child because her parents were not married to each other at the time of her birth—a child born to a married woman as a result of her adultery was illegitimate. See, e.g., Fitzsimmons v. Decicco, 44 Misc. 2d 307 (Fam. Ct. 1964).

Yet, a child born out of wedlock cannot seek remedy from his parents for this historically second class status. Zepeda v. Zepeda, 41 Ill.App.2d 240, cert. denied 379 U.S. 945 (1964), was the seminal “wrongful life” case. The plaintiff (the out of wedlock son) sued his father seeking damages because he was born an illegitimate child. In addressing the seriousness of the nature of the tort, the court held that overriding legal, social, judicial and other considerations precluded a cause of action for wrongful life.

EXAMPLE: Douglas, who is illegitimate, brings suit against Frank, his father. Douglas alleges that Frank promised to marry his mother, Agnes, although he was already married at the time. Douglas seeks damages for deprivation of the right to be born legitimate, to have a legal father, to inherit from Douglas’s paternal ancestors and for being stigmatized as a bastard. The court denied Douglas’s suit although Frank committed a willful tort and Douglas suffered an injury. Supporting this type of tort would be inappropriate for the court to do; the proper forum would be the legislature. See, e.g., Zepeda v. Zepeda, 41 Ill.App.2d 240 (1963).

Conversely, this restriction does not apply to suing a third party for a “wrongful birth.”

EXAMPLE: A mother is in the psychiatric ward of a hospital. Due to the hospital’s negligence, she gets raped, which results in her getting pregnant by her attacker. The child, through his guardian ad litem, sues the hospital for negligence. The court could properly hold for the child and award damages.

Along with this distinction between legitimate and illegitimate children came discrimination in how they were treated under the law. Specifically, an out of wedlock child was denied equal access to child support, a right to bring wrongful death actions and the ability to inherit from family members. In fact, an illegitimate child was considered to have no family, even though the child clearly had a mother.

There has been a dramatic increase in the number of illegitimate births over the past three decades in the U.S. According to the National Vital Statistics Reports, 40.8 % of all births in 2010 (3,999,386 children) were to unmarried women. Experts in the field speculate that this rate would be even higher if abortion had not been made legal in 1973. Given the increasing number of children born out of wedlock, there was a pressing need to enact laws that would treat children equally regardless of their status as born in wedlock or out of wedlock.

Constitutional Protections

As mentioned, the burdens imposed on illegitimate children by state and federal legislative or judicial action prompted a need for reform. Those disparities were challenged under the Equal Protection Clause of the Fourteenth Amendment.

EXAMPLE: The law in State A provides for a judicially enforceable right of support for a legitimate child from a natural father. No such right is afforded to an illegitimate child. Carlos, an illegitimate child, sued his father for support. The court held that Carlos was entitled to support from his natural father. Specifically, once a state recognizes a judicially enforceable right of children to support from their natural fathers, there is no constitutionally sufficient justification for denying that right to a child merely because his parents never married. For a state to do so constitutes invidious discrimination, which violates the Equal Protection Clause. See, e.g., Gomez v. Perez, 409 U.S. 535 (1973).

After such challenges, child support and custody laws no longer differentiate between the two categories of children. A paternity suit may be brought by the mother or the father, and, if there is a judicial order establishing paternity, the children can inherit.

EXAMPLE: After a mother is killed by a drunk driver, her five children bring wrongful death and survival actions to recover tort damages. The applicable statute in their state reserves these types of actions to “legitimate” children. The U.S. Supreme Court held that limiting wrongful death and survival actions to children born in wedlock violated the Equal Protection Clause of the Fourteenth Amendment. See, e.g., Levy v. Louisiana, 391 U.S. 68 (1968).

Another area rife with disparate treatment was in eligibility for Social Security benefits payable to a child of a deceased insured wage earner. The Social Security Act defined a “child” of the wage earner by reference to three tests:

  1. One who by state law would take the personal property of the deceased wage earner by intestacy;
  2. One whose parents went through a marriage ceremony which would result in a valid marriage but for a prior subsisting marriage or some procedural defect;
  3. One who is a child of the deceased wage earner and who has been acknowledged as such by the wage earner, or has been adjudicated as such, or who has been ordered to be supported by the wage earner by a court.

As with other areas of the law that rely on states to determine one’s rights, uniformity was sought as a means to gain equal treatment throughout the U.S.

Uniform Parentage Act (2000)

Since its original promulgation in 1973 by the National Conference of Commissioners on Uniform State Laws (“the Commissioners”), the Uniform Parentage Act (“UPA (1973)” or “the Act”) has been adopted in some form by all of the states. The Act was updated in 2002, and only 11 states, including Utah, North Dakota, and Texas have adopted the updated version (as of 2017). 

Specifically, the key provision of the Act eliminated the distinction between different types of children by extending the parent-child relationship to all children, regardless of whether the parents were married to each other or not at the time of their birth. This inclusion was prompted by U.S. Supreme Court decisions and lower federal and state court decisions that required equal treatment of marital and nonmarital children. In addition, the Act set forth a set of rules for the presumption of parentage and it replaced the terms “bastard” and “illegitimate” with the use of the phrase: “child with no presumed father.”

Yet, the Act did not cover all aspects of parentage. For instance, courts in California have held that nonmarital fathers have no standing to sue an intact family to assert his rights of fatherhood to a child born during that union. Conversely, opposite results have been reached in other UPA states (Colorado and Texas), which have declared that a father had such a constitutional right to challenge paternity in this circumstance.

Although a husband may be permitted to disprove his paternity, the right of a third party to determine paternity is more tenuous. Even if he had standing to contest this presumption, the law usually favored the husband in these types of proceedings.

EXAMPLE: A married woman had an affair and conceived a child with her lover. The birth certificate listed her husband as the father and he held out the child as his own. During the child’s first three years of life, the wife lived at various times with the biological father (who also held out the child as his own), with her husband and another man. The biological father sought visitation, not custody of the child. A California statute provided that “the issue (child) of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage.” This provision served as a means to preserve the marital unit. In a plurality opinion, the Court upheld the constitutionality of the California statute because someone in the biological father’s position had no parental prerogative. Michael H. and Victoria D. v. Gerald D., 491 U.S. 110 (1989).

A statute precluding all but the husband and wife from standing to contest the paternity of the children and giving them the presumption of parentage does not violate due process and is constitutional. This is because it is rationally related to a legitimate state interest in promoting the stability of the nuclear family.

EXAMPLE: Unmarried James tried to establish paternity of Elijah, who he fathered while Melissa was separated from her husband Harold. Melissa moved back in with Harold within two months. In such a case, the court may sympathize but deny relief to James.

The right of a third-party to claim paternity of a child born to a married woman varies considerably among the states. As of 2000, 33 states allow a man to rebut the marital presumption, thereby eliminating an across the board bar. As a compromise, this challenge must occur within two years of the child’s birth.

Due to the many changes in societal mores and advancements in genetic testing methods to determine paternity over the ensuing decades, the Commissioners felt compelled to revise the original Act in 2000 (“UPA (2000)”), and later amend certain sections in 2002, in response to objections from the American Bar Association (“ABA”). In February 2003, UPA (2000) was approved by the ABA. Now the updated version is available for enactment by the states. To date, Delaware, Texas, Washington, North Dakota, Utah, Oklahoma, Wyoming, Maine, Illinois, New Mexico, and Alabama have adopted UPA (2002)

In the following sample of one Article of the UPA (2000), the bracketed sections are optional provisions a state can adopt or not. The italicized text indicates our comments.

UNIFORM PARENTAGE ACT (2000)

ARTICLE 2

PARENT-CHILD RELATIONSHIP

SECTION 201.  ESTABLISHMENT OF PARENT-CHILD RELATIONSHIP

    (a) The mother-child relationship is established between a woman and a child by:

  1. the woman’s having given birth to the child [, except as otherwise provided in [Article] 8] (deals with gestational agreements—formerly known as surrogacy);
  2. an adjudication of the woman’s maternity; [or]
  3. adoption of the child by the woman [; or
  4. an adjudication confirming the woman as a parent of a child to a gestational mother if the agreement was validated under [Article] 8 or is enforceable under other law].

    (b) The father-child relationship is established between a man and a child by:

  1. an unrebutted presumption of the mans’ paternity of the child under Section 204;
  2. an effective acknowledgement of paternity by the man under [Article] 3, unless the acknowledgement has been rescinded or successfully challenged;
  3. an adjudication of the man’s paternity;
  4. adoption of the child by the man;
  5. the man’s having consented to assisted reproduction by his wife under [Article] 7 which resulted in the birth of the child; or
  6. an adjudication confirming the man as a parent of a child born to a gestational mother if the agreement was validated under [Article] 8 or is enforceable under other law]  

Comment: Source: UPA (1973), § 4; expanded to include all possible bases of the parent-child relationship

SECTION 202.  NO DISCRIMINATION BASED ON MARITAL STATUS

A child born to parents who are not married to each other has the same rights under the law as a child born to parents who are married to each other.

Presumptions

Historically, there was a strong (albeit rebuttable) presumption that the child born to a married woman was the child of the husband, thereby establishing the child’s legitimacy. In the interest of extending such legitimacy to all children, UPA (2002) Section 204 presumes a man is the father of a child if:

  1. he and the mother of the child are married to each other and the child is born during the marriage;
  2. he and the mother of the child were married to each other and the child is born within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce;
  3. before the birth of the child, he and the mother of the child married each other in apparent compliance with law, even if the attempted marriage is or could be declared invalid, and the child is born during the invalid marriage or within 300 days after its termination by death, annulment, declaration of invalidity, or divorce;
  4. after the birth of the child, he and the mother of the child married each other in apparent compliance with law, whether or not the marriage is or could be declared invalid, and he voluntarily asserted his paternity of the child by either: putting his name on the birth certificate or agreeing to support the child as his own; or
  5. for the first two years of the child’s life, he resided in the same household with the child and openly held out the child as his own.

Source: UPA (1973) § 4.

EXAMPLE: Jane gives birth to Adam. She and Paul have not been married for the statutorily required 300 days, but have had a religious marriage ceremony and filed the appropriate paperwork with the town clerk’s office. Accordingly, under the law Paul is presumed to be Adam’s father because his parents successfully married one another before Adam was born.

Despite this presumption, it is rebuttable under certain circumstances. Under UPA (1973) § 4(b) a presumption of natural parentage by a father could only be rebutted by clear and convincing evidence. Furthermore, when two or more presumptions of parentage arose that conflicted with each other, the presumption which was based on the more important considerations of policy and logic controlled. These two requirements were eliminated in UPA (2000) because with the advent of genetic testing, determining parentage is much more accurate, thereby eliminating most conflicts.

EXAMPLE: Jay and Sarah are madly in love and decide to marry one another. Sarah is worried about her young daughter Joan’s upbringing and convinces Jay to adopt her so she will never feel like an out of wedlock child. Years after the adoption, Joan’s biological father, a wandering journalist, returns home and seeks to establish paternity. He is too late and is precluded from establishing himself as the father because the statute of limitation precludes him from asserting this right. Furthermore, he previously showed no interest in being a father. In addition, Jay has already been established as the father.

Pursuant to section 602 of UPA (2002), the following parties have standing to bring an action to determine parentage:

  1. the child;
  2. the mother of the child;
  3. a man whose paternity of the child is to be adjudicated;
  4. the governmental agency charged with child support enforcement;
  5. an authorized adoption agency;
  6. one’s legal representative; or
  7. an intended parent under a gestational agreement.

If the child has no presumed, acknowledged or adjudicated father, a proceeding to adjudicate the parentage of the child may be commenced at any time even after the child becomes an adult (if the child initiates the proceeding). See UPA (2002) § 606. If the child has a presumed father, a proceeding must be brought not later than two years after the child’s birth. See UPA (2002) § 607.

Voluntary Acknowledgement

Paternity can also be established after the child’s birth if the father voluntarily acknowledges paternity in writing. Often, this acknowledgement is made via the father being named on the birth certificate. UPA (1973) § 4 stated that the inclusion of a man’s name on the birth certificate creates a presumption of paternity, which could be rebutted. Other methods of establishing paternity by voluntary acknowledgement include a father taking on the obligation to support the child under a voluntary promise or by court order. Also, parentage can be established, if the father holds the child out as his natural child.

If a father is in doubt as to his paternity of a child, it would be wise for him to conclusively determine paternity via genetic testing before voluntarily acknowledging fatherhood. An acknowledgement of parentage has far reaching legal consequences because it is the equivalent of a judicial determination of parentage. In addition, an acknowledgement cannot easily be reversed if the father finds out later he is not really the child’s biological father. Furthermore, most challenges are barred two years after the child’s birth.

States have an added incentive to aggressively pursue fathers because of funds they receive from the federal government to offset their child support collection costs. To remain eligible for such funds, the states must enact tough laws to make fathers accountable for supporting their children. This crackdown was the result of welfare reform in 1996. The federal program is commonly known as Article IV-D. See 42 U.S.C. § 666.

Many states penalize so called deadbeat fathers (and more recently mothers) who refuse to support their children, applying criminal, as well as civil consequences for failure to pay child support.

Blood and DNA Tests

If a father refuses to voluntarily acknowledge parentage, another avenue to establishing parentage is through DNA testing. DNA tests are the most accurate and effective technology today to determine paternity.

Each report clearly states that either the man is excluded from being the biological father or he is not excluded, thereby making him the biological father. Given the high degree of certainty, the results of these tests are universally accepted by courts to establish paternity and child support enforcement.

UPA (2000) established 99% as its standard for the probability of paternity—the same standard used by the American Association of Blood Banks. Some states accept an even lower standard. As of September 2013, 27 states’ presumption of paternity was less than that level.

EXAMPLE: Cleo and Rickie, husband and wife, stipulate that the husband was not the father of the child Amber in the divorce proceedings. Even genetic testing revealed that it was unlikely that the husband was the father of the child. Yet, while they lived together as husband and wife, Rickie treated Amber as his natural child. Under the theory of equitable estoppel, the court held that Rickie could not now deny that he was Amber’s father. His past conduct of holding Amber out as his child and supporting her was enough to defeat his claim, although he was indisputably not her biological father. See, e.g., Pietros v. Pietros, 638 A.2d 545 (R.I. 1994).

Courts can order all relevant parties in a paternity proceeding to undergo DNA testing to aid in the determination of whether the alleged father is the biological father of the child.