Creating Legal Relationships
The filing of a paternity or parentage action is one method a person may establish a legal relationship with a child of unmarried parents. A more thorough discussion of paternity or parentage actions can be found in Section III of these materials and will not be fully reproduced in this section. However, some key points are important to restate and expand upon in the discussion of these types of cases and the actual litigation of these cases within the State court systems.
In our prior discussions concerning unwed fathers, the assumption was that the unwed father was the party bringing the paternity action. Pursuant to the Uniform Parentage Act (UPA) of 2002, promulgated by the National Conference of Commissioners on Uniform State Laws (NCCUSL), a paternity action may be brought by the child, the mother of the child, an unwed father, a child support enforcement agency, an authorized adoption agency or licensed child-placing agency, or a representative authorized by law to act for an individual who would otherwise be entitled to maintain a proceeding but who is deceased, incapacitated or a minor.1
A parentage action is most commonly brought by the mother of a child, an unwed father or a child support enforcement agency. The UPA of 2002 allows an unwed mother or unwed father to bring a paternity action at any time, but only a child can bring an action after the child becomes an adult. There is a two-year limitation period for a presumed father, the mother or an unwed father to bring a paternity action in the case of a child already having a presumed father and the Act provides that the court has discretion to deny a motion seeking genetic testing of the mother, the child, and the presumed father.2 This section of the act specifically addresses situations like that of the case of Michael H. v. Gerald D., wherein Michael was denied the ability to establish his parentage of his daughter Victoria because under California law she was born during the course of Victoria’s mother’s marriage to Gerald and Gerald was her presumed father. 3 The Act would permit a father in Gerald’s position to bring a paternity action within two years of a child’s birth, but would not conclusively allow him to proceed because the court would have discretion to deny him the ability to prove his paternity through DNA testing. This discretionary provision embodies the U.S. Supreme Court cases discussed in Section 3 above where courts could differentiate between fathers actively participating in their children’s lives, as was the case with Gerald, and those who have never taken an active interest in their children’s lives.
Currently, there are 33 States that allow a man to rebut a presumption of paternity of a child.4 However, it is not uniformly clear what the legal consequences of rebutting the assumption means for the presumed and unwed father. The UPA of 2002 itself fails to address the circumstances of a case where an unwed father is permitted to rebut the presumption, in that the Act does not define what becomes of the parental bonds and relationship that may have developed between the child and the presumed father during those initial two years after the birth of a child. This situation is further complicated in States that bar presumed father’s from bringing actions for non-paternity after two years, but permit unwed fathers to bring action for paternity at any time. Such was the situation in the recent case Illinois case of In re Parentage of J.W, wherein the unwed father sought to establish paternity and visitation privileges with his then six year old daughter who he had never previously known to be his daughter or with whom he had any contact.5 The trial court in that case ultimately denied the unwed father’s request for visitation with the child on the basis that it was not in the best interest of the child, but the unwed father was ordered to pay support for the child.6 The most poignant question specifically left unanswered by the Illinois Supreme Court’s decision was whether or not an unwed father’s establishment of his paternity necessarily replaces and destroys the presumed father’s rights to parent the child. In a footnote to its opinion, the Court stated that
“[at the outset, we note that [unwed father] has never challenged [presumed father’s] standing to establish the existence of a parent-child relationship, and no attempt has been made or order entered disavowing [presumed father’s] parental rights either under the Parentage Act or under the judgment of dissolution. Accordingly, for purposes of this appeal, we make no determination with regard to either party’s standing, or as to [presumed father’s] continued legal status as a parent. Those issues are not presently before this court.”7
Historically, and as was the case stated in the U.S. Supreme Court’s decision in Michael H. v. Gerald D., the traditional family unit of one mom and one dad who are married has been upheld.8 However, considering the large percentage of out-of-wedlock births in the U.S. and the evolution of alternative family structures involving same-sex couples and blended families with step-parents and step-children, there has been an increased refocusing on the best interests of a child and what that means with respect to fostering stable and nurturing relationships for a child.9 Some argue that the law should make a place where it is possible under appropriate circumstances for a child to have more than one father or mother.10
Within a paternity action, every State requires the application of the best interests of the child standard in the courts’ decisions as to a child’s custody, placement or other critical life issues. There is no standard definition of best interests of the minor child, but many States have included factors within their laws for the courts to consider in making its determination as to what is in a child’s best interests including:
· The emotional ties and relationships between the child and his or her parents, siblings, household members and other caregivers;
· The capacity of the parents to provide a safe home and adequate food, clothing, and medical care;
· The mental and physical needs of the child;
· The mental and physical health of the parents; and
Regardless of who brings the paternity action, the State in which the action must be brought if an unwed father is seeking custody rights of a child is defined by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The Act was promulgated by the NCCUSL in 1997 and has been enacted by nearly every State with the exception of Massachusetts, which introduced the bill this year. The act defines the home State of a child as the State where on the date of the commencement of the paternity proceeding, the child was residing in the six months before the commencement of the proceeding.12 So, while an unwed father may desire to commence an action within his State for custody of a child, the action is at risk of being dismissed if the child has been residing in another State in excess of six months.
Adoption is another method of establishing a legal relationship between a person and a child of unmarried parents. Adoption establishes a person as the legal parent of a child which in some cases replaces and terminates the rights of a biological parent. Adoption is a permanent solution to child custody and creates binding ties between the person seeking to adopt a child and the child. Despite the promulgation by the NCCUSL of the Adoption Act of 1994, only Vermont has adopted the Act.13 As such, there is no uniformity as to the adoption laws of the States and practitioners must be mindful of the individual requirements of particular States.
While there is a myriad of ways an adoption can take place, children of unmarried parents are most likely to be adopted via a step-parent or second-parent adoption, a related person adoption, or an adoption by a private party or through an agency. In most States, the person seeking to adopt must be an adult. Some States also have residency requirements that a person seeking to adopt must meet before she is able to petition to adopt a child of unmarried parents.
Step-Parent / Second Parent Adoption
Step-parent adoptions are probably the most common type of adoption involving children of unmarried parents. These adoptions typically arise after an unmarried mother or father marries and the now married mother or father and his / her respective spouse desire to adopt the child of mother or father. Even though a step-parent and the child sought to be adopted may have been living together for some time, many States require an investigation by an appropriately credentialed state or private agency who must then generate a report with information on the child’s medical and genetic history, family and social background, mental health history, placement history, if any, any history of abuse or neglect, religious and ethnic background and in some instances whether the child being adopted is an Indian child.14 In those States that do require the report, the report must be filed prior to the final hearing on the adoption.15
In all States, the birth mother and father’s consent is required before a step-parent adoption may be finalized. Again, and as was articulated in Section III of these materials, an unwed father must take affirmative steps to establish his paternity through his State’s putative father registry or through the filing of a paternity action, otherwise, he is at risk of losing his right to notice and consent to an adoption proceeding initiated by a step-parent and the mother. The content and manner in which a parent’s consent may be given varies between the States and in some States must be given before a Judge.16 If a biological parent does not consent to the adoption of a child by a step-parent, a hearing must be had to terminate the biological parent’s right to the child. Courts will apply the best interests of the child standard in making determinations as to whether to permit the adoption, but not before a hearing as to the fitness of the parent opposing the adoption. The requirement of a hearing to determine the fitness of the parent opposing the adoption was established in the U.S. Supreme Court case of Stanley v. Illinois.17 Second-Parent adoptions can be accomplished in some States where same-sex marriage and civil unions are not permitted. The second-parent adoption allows the other partner in a same-sex relationship to adopt his / her partner’s child. Second-parent adoptions occur on a State by State basis and in some cases on a county or circuit basis within individual States. Some courts construe their adoption laws liberally giving broad definitions to the definitions of persons who are eligible to adopt children. The definition of the family has extended far beyond the historical family unit consisting of a husband and wife, and second-parent adoptions afford children from a wide variety of family structures the same security and comfort of having two parents.18 Second-parent adoptions also ensure that if the relationship of two people devolves, the child is not deprived of the physical and emotional connection to the other parent. Thus, the child is afforded the security and comfort of continuing to have two parents.19
Related Person Adoptions
Related person adoptions occur when one person is related by blood or marriage to the child who is being adopted. An example of this would be if a sister adopts the child of her unwed brother and the mother of the child. While the consents of the biological parents are still required in a related person adoption, the requirements for a report as discussed with respect to step-parent adoptions and second-parent adoptions may not be required by some states.
Adoption by a Private Party or Through an Agency
Adoptions sought by private parties or done through an adoption agency must have the consent of both biological parents to proceed. These types of adoptions require the most stringent oversight and typically require not only an initial report but will also require a post-placement report conducted some months after a child is placed with the prospective parents and prior to finalizing the adoption. The purpose of the post-placement reports is to determine the level of integration and adjustment of the adoptive child with his / her new family.20 The reports are then provided to the court prior to the adoption proceeding being finalized.21
Practitioners should be mindful to ensure all procedures are followed with respect to private party or agency adoptions. As was the case in In the Matter of Baby Boy C., and In re M.N.M., the agencies overseeing the adoption did not make sufficient efforts to locate potential fathers of children which ultimately resulted in the adoptions of the children in those cases falling through.22 While there may be a temptation to push the adoption process forward to finalization quickly, the financial and emotional risks to the adoptive parents outweigh the interests of a fast process.
Guardianship actions are differentiated from paternity and adoption proceedings in that they are overseen and administered by the probate courts. Additionally, paternity and adoption proceedings result in permanent custody or visitation rights with the person seeking custody or to adopt while guardianships, in operation, are meant to provide a means for a person to care and make legal decisions for a child of unmarried parents when the parents have been determined to be unfit, unable or unwilling to care for a child.
Because guardianships bestow legal custody privileges to the guardian, the biological parents of the child must be notified and a hearing must be held to determine the parents’ fitness. Parents have a fundamental liberty interest to establish a home, bring up children and direct the upbringing and education of children under their control.23 Additionally, the custody, care and nurture of a child resides first in the parents and there is a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life’s difficult decisions.24
As previously discussed in Section III of these materials, 41 percent of births in 2013 were to unmarried parents.25 Not all of the circumstances of these children can be addressed through paternity and adoption actions and family members and persons outside the nuclear family of a child are increasingly called upon to assist in raising these children. As stated in the U.S. Supreme Court’s decision in Troxel v. Granville, there were approximately four million children in 1998, or 5.6 percent of all children under the age of eighteen living primarily in the household of their grandparents.26 Information from the 2010 Census, American Community Survey, Current Population Survey and Survey of Income and Program Participation indicates that number has increased in 2011 to about 7 percent.27
As such, guardianships have become increasingly important tools for grandparents to care for and make necessary decisions concerning their grandchildren. Guardianships not only keep children out of child welfare systems, but also serve as important means to provide stability to children, which is often problematic within foster care systems.28 Many States also offer subsidies to guardians to assist them in caring for children.29
Co-parenting agreements are often used in the situation where a same-sex couple desires to raise a child together, but the State in which they live does not permit same-sex marriage, step-parent / second-parent adoption between same-sex couples.30 Essentially, the parties enter into written agreement that each will honor and uphold the parental rights of the other.31 While these agreements are entered into with the best intentions, separation of the parties naturally results in intense emotions and attempts by the biological or legal parent to undermine the agreement.32
Nearly all challenges to co-parenting agreements have resulted in the agreement not being upheld.33 As a result, the partner without biological or legal rights to the child is excluded from the child’s life.34 In those cases where the partner without biological or legal ties has been able to maintain a relationship with the child, it has been the result of an individual State’s legal recognition of a quasi-parent relationship between the partner and the child.35
Impact of Marriage Rights
In total, 37 states have passed laws allowing same-sex couples to marry.36 Through the passage of these laws, same-sex couples are afforded the same parenting rights and privileges held by heterosexual couples engaged in marriage. These rights and privileges would assume to include the protections as presumed parents of children born during the course of these marriages thus filling the gap that second-parent adoptions and co-parenting agreements tried to fill in the absence of marriage. Any challenges to the extension of these parental rights to same-sex couples or attempting to differentiate their rights from those of heterosexual couples will likely be met with strong adversity, particularly in light of the U.S. Supreme Court’s decision in U.S. v. Windsor wherein §3 of the federal Defense of Marriage Act was ruled unconstitutional as it violated the Equal Protection Clause of the Fifth Amendment.37
Artificial insemination is a technique that can help treat certain kinds of infertility in both men and women.38 In the procedure, sperm are inserted directly into a woman’s cervix, fallopian tubes, or uterus.39 By inserting the sperm in this fashion, it makes the trip shorter for the sperm and bypasses any possible obstructions.40 Intrauterine insemination, where the sperm is placed directly into the uterus, is the most common form of artificial insemination.41 While pregnancy rates in women undergoing artificial insemination are not as high as for more advanced techniques, such as in vitro fertilization, the procedure is simpler, has few side effects and is inexpensive. 42
Most State laws provide that a child born as a result of artificial insemination using the husband’s sperm is presumed to be the husband’s legal child.43 As further discussed in Section III, most States also incorporate the UPA of 2002’s presumption that a child born to a married woman is the child of the husband. Thus, when a child is born after artificial insemination using the sperm of a third-party donor, most States operating under the UPA would find that the child is presumed to be the legal child of the mother and her husband, whereas others leave open the possibility that the child could be declared illegitimate.44
In the case of In re Baby Doe, the Supreme Court of South Carolina held that a husband who consents for his wife to conceive a child through artificial insemination, with the understanding that the child will be treated as his own, is the legal father of the child born as a result of the artificial insemination and will be charged with all the legal responsibilities of paternity, including support.45
Similarly, in the case In re Marriage of A.C.H. & D.R.H., the Court of Appeals of Oregon held that a husband consented to and participated in the artificial insemination of his wife, and thus husband was the father of the child that resulted and was required to pay child support for the child.46
Maintaining Contact Between Unmarried Partner and Child at the End of the Parents’ Relationship
The previous sections explored how to create legal relationships between a person and a child or children of unmarried parents. In the cases of paternity actions, adoptions and in the case of married same-sex couples, these legal relationships become permanent relationships that will survive the separation of the parties. Parents who have adopted a child through step-parent or second-parent adoptions or who have married and conceived children during the course of their marriage are vested with all of the legal rights as a biological parent of the child and thus, have the ability to seek custody and visitation privileges with a child upon the dissolution of the parents’ relationship. These legal relationships will also likely create an obligation of support.
Co-parenting agreements are far more risky and do not guarantee that the parent not biologically or legally connected to the child any rights after separation of the parties unless those parents live in a state that would recognize some form of equitable parentage.
Despite the U.S Supreme Court’s holding in Windsor and its implications for same-sex marriage for the country as a whole, same-sex couples seeking to start families should still carefully consider individual state laws and the potential future impact of those laws on their future family unit before proceeding.
1 National Conference of Commissioners on Uniform State Laws, Uniform Parentage Act, §602 (2002).
2 National Conference of Commissioners on Uniform State Laws, Uniform Parentage Act, §§602, 606-610 (2002).
3 491 U.S. 110 (1989).
4 National Conference of Commissioners on Uniform State Laws, Uniform Parentage Act, §607 (2002).
5 990 N.E.2d 698 (2013).
7 Id. at 706.
8 491 U.S. 110 (1989).
9 Veronica Sue Gunderson, Personal Responsibility in Parentage: An Argument Against the Marital Presumption, U.C. Davis J. Juv. L. & Pol’y, 335 (2007).
11 Child Welfare Information Gateway, Determining the Best Interests of the Child, U.S. Department of Health and Human Services (2012).
12 National Conference of Commissioners on Uniform State Laws, UCCJEA, §201 (1997).
13 Adoption Act (1994), Uniform Law Commission, National Conference of Commissioners on Uniform State Laws, (last visited April 10, 2015), http://www.uniformlaws.org/Act.aspx?title=A doption%20Act%20(1994).
14 Child Welfare Information Gateway, Collection of Family Information About Adopted Persons and Their Birth Families, U.S. Department of Health and Human Services (2012).
16 Child Welfare Information Gateway, Consent to Adoption, U.S. Department of Health and Human Services (2013).
17 405 U.S. 645 (1972).
18 Suzanne Bryant, Second Parent Adoption: A Model Brief, Duke J. Gender L. & Pol’y 233 (1995).
20 Child Welfare Information Gateway, Home Study Requirements for Prospective Parents in Domestic Adoption, U.S. Department of Health and Human Services (2012).
22 581 A.2d 1141 (D.C. 1990); 605 A.2d 921
25 Births to Unmarried Women, Child Trends DataBank, (last updated, March 2015), http://www.child trends.org/wp-content/uploads/2015/03/75_Births_to_Unmarried_Women.pdf.
26 530 U.S. 57, 64 (2000).
27 Renee R. Ellis & Tavia Simmons, Coresident Grandparents and Their Grandchildren: 2012; Population Characteristics 3 (U.S. Census Bureau, October 2014).
28 Strengthening Families Through Guardianship, The Pew Charitable Trusts (2008).
30 Brian Bix, Domestic Agreements, Hofstra L. Rev. 1753 (2007).
36 States, Freedom to Marry (last visited April 10, 2015), http://www.freedomtomarry.org/states/
37 12-307 (U.S. June 26, 2013).
38 Infertility and Artificial Insemination, WebMD (last visited April 10, 2015), http://www.webmd.com/infertility-and-reproduction/guide/artificial-insemination?print=true.
43 Artificial Conception: Artificial Insemination and In Vitro Fertilization, FindLaw, (last visited April 10, 2015), http://family.findlaw.com/surrogacy-artificial-conception/artificial-conception-artificial-insemination-and-in-vitro.html#sthash.65z6dhiL.V40xbTFb.dpuf.
45 In re Baby Doe, 353 S.E.2d 877, 878 (1987).
46 In re Marriage of A.C.H. & D.R.H., 229 Or. App. 129, 135-36, (2009).
Keywords: Adoption, Child Custody, Stepparent Adoption, Surrogacy, Artificial Insemination, Guardianship, Co-Parenting Agreements