-
D R A F T FOR DISCUSSION ONLY
PROPOSED REVISION OF THE UNIFORM PARENTAGE ACT
NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE
LAWS
OCTOBER, 1999
PROPOSED REVISION OF THE UNIFORM PARENTAGE ACT
WITH PREFATORY NOTE AND REPORTER'S NOTES
Copyright (c) 1999 By NATIONAL CONFERENCE OF
COMMISSIONERS ON UNIFORM STATE LAWS
The ideas and conclusions set forth in this draft,
including the proposed statutory language and any comments
or Reporter's Notes, have not been passed upon by the
National Conference of Commissioners on Uniform State Laws
or the Drafting Committee. They do not necessarily reflect
the views of the Conference and its Commissioners and the
Drafting Committee and its Members and Reporters. Proposed
statutory language may not be used to ascertain the intent
or meaning of any promulgated final statutory proposal.
DRAFTING COMMITTEE TO REVISE THE UNIFORM PARENTAGE ACT
HARRY L. TINDALL, 600 Travis Street, Suite 2800,
Houston, TX 77002-3094, Chair JACK DAVIES, Court of
Appeals, Judicial Building, 25 Constitution Avenue, St.
Paul, MN 55155 LYLE W. HILLYARD, 175 E. 100, N., Logan, UT
84321 PETER K. MUNSON, P.O. Box 1949, 123 S. Travis
Street, Sherman, TX 75091-1949 JAMES C. NELSON, Montana
Supreme Court, P.O. Box 203001, Helena, MT 59620-3001
ARTHUR H. PETERSON, 350 N. Franklin Street, Juneau, AK
99801 ELWAINE F. POMEROY, 1415 S.W. Topeka Boulevard,
Topeka, KS 66612-1818 BATTLE R. ROBINSON, 104 W. Market
Street, Georgetown, DE 19947 ROBERT C. ROBINSON, P.O. Box
568, 12 Portland Pier, Portland, ME 04112 JOHN J. SAMPSON,
University of Texas School of Law, 727 E. 26th Street,
Austin, TX 78705-3299, Reporter
EX OFFICIO JOHN L. McCLAUGHERTY, P.O. Box 553,
Charleston, WV, 25332, President ROBERT C. ROBINSON, P.O.
Box 568, 12 Portland Pier, Portland, ME 04112, Division
Chair
ABA ADVISOR NINA VITEK, 222 E. Mason Street, 2nd Floor,
Milwaukee, WI 53202-3602, Advisor
EXECUTIVE DIRECTOR FRED H. MILLER, University of
Oklahoma, College of Law, 300 Timberdell Road, Norman, OK
73019-5080, Executive Director WILLIAM J. PIERCE, 1505
Roxbury Road, Ann Arbor, MI 48104-4047, Executive Director
Emeritus
Copies of this Act may be obtained from:
NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE
LAWS 211 E. Ontario Street, Suite 1300 Chicago, Illinois
60611 312/915-0195 PROPOSED REVISION OF THE UNIFORM
PARENTAGE ACT
TABLE OF CONTENTS
ARTICLE 1. GENERAL PROVISIONS SECTION 101. SHORT TITLE
3 SECTION 102. DEFINITIONS 3 SECTION 103. SCOPE OF [ACT] 6
SECTION 104. COURT OF THIS STATE 6 SECTION 105. PROTECTION
OF PARTY AND CHILD 6
ARTICLE 2. PARENT-CHILD RELATIONSHIP SECTION 201.
ESTABLISHMENT OF PARENT-CHILD RELATIONSHIP 7 SECTION 202.
NO DISCRIMINATION BASED ON MARITAL STATUS 8 SECTION 203.
CONSEQUENCES OF ESTABLISHMENT OF PARENTAGE 8 SECTION 204.
PRESUMPTION OF PATERNITY IN CONTEXT OF MARRIAGE 8
ARTICLE 3. VOLUNTARY ACKNOWLEDGMENT OF PATERNITY
SECTION 301. ACKNOWLEDGMENT OF PATERNITY 11 SECTION 302.
EXECUTION OF ACKNOWLEDGMENT OF PATERNITY 11 SECTION 303.
FILING OF ACKNOWLEDGMENT 11 SECTION 304. DENIAL OF
PATERNITY 12 SECTION 305. SPECIAL RULES FOR ACKNOWLEDGMENT
OR DENIAL OF PATERNITY 13 SECTION 306. EFFECT OF
ACKNOWLEDGMENT AND DENIAL OF PATERNITY 13 SECTION 307.
PROCEEDING FOR RESCISSION 13 SECTION 308. CHALLENGE AFTER
EXPIRATION OF TIME FOR RESCISSION 14 SECTION 309.
PROCEDURE FOR RESCISSION OR CHALLENGE 14 SECTION 310.
RATIFICATION BARRED 15 SECTION 311. FULL FAITH AND CREDIT
15 SECTION 312. FORMS FOR ACKNOWLEDGMENT AND DENIAL OF
PATERNITY 15 SECTION 313. VALIDITY OF FORMS 16 SECTION
314. RELEASE OF INFORMATION 16 SECTION 315. ADOPTION OF
RULES 16
ARTICLE 4. PATERNITY REGISTRY PART 1. GENERAL
PROVISIONS SECTION 401. ESTABLISHMENT OF REGISTRY 16
SECTION 402. REGISTRATION OF CLAIM OF PATERNITY 17 SECTION
403. NOTICE OF PROCEEDING TO REGISTRANT 18 SECTION 404.
TERMINATION OF PARENTAL RIGHTS OR ADOPTION; CHILD LESS
THAN ONE YEAR OF AGE 18 SECTION 405. TERMINATION OF
PARENTAL RIGHTS OR ADOPTION; CHILD AT LEAST ONE YEAR OF
AGE 19
PART 2. OPERATION OF REGISTRY SECTION 411. INFORMATION
TO BE PROVIDED TO REGISTRANT BY FORM FOR REGISTRATION 19
SECTION 412. FURNISHING OF INFORMATION; CONFIDENTIALITY 20
SECTION 413. PENALTY FOR RELEASING INFORMATION 20 SECTION
414. REVOCATION OF REGISTRATION 21 SECTION 415. REMOVAL OF
REGISTRANT'S NAME 21 SECTION 416. UNTIMELY ATTEMPT TO FILE
CLAIM 21 SECTION 417. FEES FOR REGISTRY 21
PART 3. SEARCH OF REGISTRIES SECTION 421. SEARCH OF
APPROPRIATE REGISTRY 22 SECTION 422. CERTIFICATE OF SEARCH
OF REGISTRY 22 SECTION 423. FILING CERTIFICATE OF SEARCH
23 SECTION 424. ADMISSIBILITY OF REGISTERED INFORMATION 23
ARTICLE 5. GENETIC TESTING SECTION 501. APPLICATION OF
ARTICLE 23 SECTION 502. ORDER FOR TESTING 23 SECTION 503.
REQUIREMENTS OF GENETIC TESTING 25 SECTION 504. GENETIC
TESTING; PRESUMPTION 26 SECTION 505. COSTS OF GENETIC
TESTING 27 SECTION 506. ADDITIONAL GENETIC TESTING 28
SECTION 507. GENETIC TESTING WHEN NOT ALL PERSONS
AVAILABLE 28 SECTION 508. DECEASED INDIVIDUAL 29 SECTION
509. IDENTICAL BROTHERS 29
ARTICLE 6. PROCEEDING TO DETERMINE PARENTAGE PART 1.
NATURE OF PROCEEDING SECTION 601. PROCEEDING AUTHORIZED 30
SECTION 602. STANDING TO MAINTAIN PROCEEDING 31 SECTION
603. PARTIES TO PROCEEDING 31 SECTION 604. NO LIMITATION;
CHILD WITHOUT PRESUMED FATHER 32 SECTION 605. LIMITATION;
CHILD HAVING PRESUMED FATHER 32 SECTION 606. PERSONAL
JURISDICTION 34 SECTION 607. CHOICE OF LAW 34 SECTION 608.
VENUE 34 SECTION 609. JOINDER OF PROCEEDINGS 35 SECTION
610. PROCEEDING STAYED UNTIL AFTER BIRTH 35 SECTION 611.
REPRESENTATION OF CHILD 35 SECTION 612. MOTHER-CHILD
RELATIONSHIP 35
PART 2. SPECIAL RULES FOR PARENTAGE PROCEEDING SECTION
621. ADMISSIBILITY OF GENETIC TEST RESULTS AND EXPENSES 36
SECTION 622. CONSEQUENCES OF REFUSING GENETIC TESTING 36
SECTION 623. ADMISSION OF PATERNITY AUTHORIZED 37 SECTION
624. TEMPORARY ORDERS 37
PART 3. HEARINGS AND FINAL ORDER SECTION 631.
RESOLUTION OF CLAIM OF PATERNITY 38 SECTION 632. JURY
PROHIBITED 39 SECTION 633. HEARINGS AND RECORDS;
CONFIDENTIALITY 39 SECTION 634. ORDER ON DEFAULT 39
SECTION 635. FINAL ORDER REGARDING PARENTAGE 39 SECTION
636. BINDING EFFECT OF ORDER 40
ARTICLE 7 PARENTAGE BASED ON EQUITABLE ESTOPPEL SECTION
701. COURT AUTHORIZED TO REFUSE GENETIC TESTING 41 SECTION
702. ORDER BASED ON EQUITABLE ESTOPPEL 42
ARTICLE 8. CHILD OF ASSISTED REPRODUCTION SECTION 801.
HUSBAND'S PATERNITY OF CHILD RESULTING FROM ASSISTED
REPRODUCTION 43 SECTION 802. CONSENT TO ASSISTED
REPRODUCTION 43 SECTION 803. LIMITATION ON HUSBAND'S
DISPUTE OF PATERNITY 44 SECTION 804. PARENTAL STATUS OF
DECEASED INDIVIDUAL 44 SECTION 805. EFFECT OF DISSOLUTION
OF MARRIAGE 44 SECTION 806. PARENTAL STATUS OF DONOR 45
[ARTICLE 9. GESTATIONAL AGREEMENT] [SECTION 901.
GESTATIONAL AGREEMENT DEFINED 46] [SECTION 902.
GESTATIONAL AGREEMENT 46] [SECTION 903. TERMINATION OF
GESTATIONAL AGREEMENT 47] [SECTION 904. PARENTAGE UNDER
VALIDATED GESTATIONAL AGREEMENT 48] [SECTION 905.
GESTATIONAL AGREEMENT: MISCELLANEOUS PROVISIONS 48]
[SECTION 906. NONVALIDATED GESTATIONAL AGREEMENT 49]
ARTICLE 10. MISCELLANEOUS PROVISIONS SECTION 1001.
UNIFORMITY OF APPLICATION AND CONSTRUCTION 49 SECTION
1002. SEVERABILITY CLAUSE 49 SECTION 1003. TIME OF TAKING
EFFECT 49 SECTION 1004. [REPEAL] 49 SECTION 1005.
TRANSITIONAL PROVISION 50
APPENDIX TO SECTION 307 51 APPENDIX TO SECTION 401 53
APPENDIX TO SECTION 504 54 APPENDIX TO SECTION 604 --
APPENDIX TO SECTION 605 56 APPENDIX TO ARTICLE 9 59
PROPOSED REVISION OF THE UNIFORM PARENTAGE ACT
PREFATORY NOTE
The National Conference of Commissioners on Uniform
State Laws addressed the subject of parentage as early as
1922. Several Acts on the subject have been adopted
throughout the 20th Century addressing the special needs
of a nonmarital child. In 1973, the Conference approved
the first UNIFORM PARENTAGE ACT (UPA, 1973), which has
been adopted in 19 states stretching from Delaware to
California; in addition, many states have enacted portions
of the Act. This landmark Act declared equality for
parents and children without regard to marital status of
the parents. The Act set forth a set of rules for
presumption of parentage, shunned the term "illegitimate,"
and chose instead to employ the term "child with no
presumed father." The Act has contributed much to bringing
about a more enlightened approach to some sensitive issues
that can divide people of goodwill. Case law has not been
so kind. Widely differing treatment on subjects not dealt
with by the Act has been common. For example, California
holds that a nonmarital father does not have standing to
sue an intact family to assert his rights of fatherhood.
Two other UPA states, Colorado and Texas, have declared
that under their state constitutions the father may not be
denied such rights. Similarly, the binding effect of a
judgment on the child or on others seeking to claim a
benefit of the judgment or collaterally attack that
judgment is very confused in the case law. UPA (1973) was
entirely silent as to the relationship between a divorce
and a determination of parentage. Other major developments
include the fact that genetic testing has undergone a sea
change since 1973. Further, the federal government
initiated an ever-expanding Title IV-D program mandating
some quite prescriptive rules in this area if the state is
to retain the substantial federal subsidy for child
support enforcement. Beginning in the 1980s, states began
to adopt paternity registries in an attempt to deal with
late claims of parentage when the mother wishes to
relinquish the child for adoption. The Conference adopted
the Uniform Putative and Unknown Fathers Act in 1989 (UPUFA)
to deal with the rights of such men, but the Act has not
been enacted in a single state. In 1989 the Conference
also adopted the Uniform Status of Children of Assisted
Conception Act (USCACA). Assisted reproduction and
gestational agreements have become commonplace in the
1990s, long after the promulgation of UPA (1973). USCACA
more closely resembled a model act in that it provided two
diametrically opposed options regarding "surrogacy
agreements." To date, only two states have enacted the
Act, with each choosing a different option. The current
draft attempts to integrate the best of UPA (1973), along
with provisions covered by UPUFA (1989) and USCACA (1989).
Article 2, Parent-Child Relationship, will look familiar
to past users of the Act. Article 3, Voluntary
Acknowledgment of Paternity, is entirely new and is driven
by federal mandates in an effort to force states to adopt
nonjudicial means to achieve early determination of
paternity. Article 4, Paternity Registry, is entirely new
and is an attempt to write a well-considered registry law
that states may consider. Article 5, Genetic Testing,
comprehensively covers that subject in nine separate
sections [UPA (1973) had but one section]. Article 6,
Proceeding to Determine Parentage, the traditional
litigation section, while Article 7 (Parentage Based on
Equitable Estoppel) is the first effort to codify a
growing subject of case law. Article 8, Child of Assisted
Reproduction, recodifies the same subjects covered in UPA
(1973) and USCACA (1989) without much change. Article 9,
Gestational Agreement, closely follows USCACA (1989). Our
mission is to write workable and sound rules for
determining the parentage of a child. This Act does not
approve or condemn behavior that some people might find
troubling. Most observers are alarmed by the high
nonmarital birthrate in this country, but our goal is to
resolve serious issues concerning parentage. The primary
focus remains on protecting the child, who had no voice in
often complex circumstances giving rise to the child's
birth. The Act does not deal with reproductive rights or
attempt to regulate assisted reproduction activities. This
Act does not attempt to list the rights of parents; that
is left to other state law. Finally, in contrast to UPA
(1973), issues of custody, visitation, and support are
avoided because existing state law amply covers these
issues. The Drafting Committee has met four times to
produce this draft. We have been fortunate to have the
past Chairs of UPUFA (Arthur Peterson) and USCACA (Robert
Robinson) to serve on the Committee. We have also had very
valuable input from our advisors and observers from the
child support community, prosecutors, matrimonial lawyers,
genetic testing laboratories, and the federal Office of
Child Support Enforcement, Department of Health and Human
Services.
PROPOSED REVISIONS OF THE UNIFORM PARENTAGE ACT
ARTICLE 1 GENERAL PROVISIONS
SECTION 101. SHORT TITLE. This [Act] may be cited as
the Uniform Parentage Act.
SECTION 102. DEFINITIONS. In this [Act]: (1)
"Acknowledged father" means a man who has established a
father-child relationship under Section 303. (2) "Alleged
father" means 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. The term does not include: (A) a presumed
father; (B) a man whose parental rights have been
terminated or declared not to exist; or (C) a male donor.
(3) "Assisted reproduction" means a pregnancy resulting
from means other than sexual intercourse. The term
includes: (A) artificial insemination; (B) donation of
eggs; (C) donation of embryos; (D) in vitro fertilization
and transfer of embryos; and (E) intracytoplasmic sperm
injection. (4) "Child" means an individual of any age
whose parentage may be determined under this [Act]. (5)
"Commence", with respect to the initiation of a proceeding
for relief under this [Act], means to file the initial
[pleading or request for a determination of parentage] in
[the appropriate forum]. (6) "Determination of parentage"
means the establishment of the parent-child relationship
under this [Act]. (7) "Donor" means an individual who
produces eggs or sperm used for assisted reproduction,
whether or not for consideration. The term does not
include: (A) an individual who provides eggs or sperm with
the intent of becoming the parent of a resulting child; or
(B) a woman who gives birth to a resulting child [, except
as otherwise provided in Article 9]. (8) "Ethnic or racial
group" means, for purposes of genetic testing, a
recognized group that an individual identifies as all or
part of his or her ancestry or that is so identified by
other information. (9) "Genetic testing" means an analysis
of genetic markers to determine parentage. The term
includes one or a combination of the following: (A)
analysis of deoxyribonucleic acid; (B) determination of
the presence or absence of common blood-group antigens,
red-blood-cell antigens, human-leukocyte antigens, serum
enzymes, serum proteins, or red-cell enzymes. (10)
"Gestational mother" means the woman who gives birth to a
child. (11) "Intended parent" means an individual who
enters into an agreement providing that he or she will be
the parent of a child born to a gestational mother through
assisted reproductive technology irrespective of a genetic
relationship. (12) "Man" means a male individual of any
age. (13) "Mother" [except as more specifically defined in
Article 8 or 9] means the female of any age who gives
birth to a child. (14) "Parent" of a child means: (A) the
woman who is the gestational mother of a child [, except a
gestational mother under the circumstances described in
Article 9]; (B) an adoptive mother or father; or (C) a man
who is: (i) presumed to be the father under Section 204;
(ii) acknowledged to be the father under Section 303; or
(iii) determined to be the father by a court of competent
jurisdiction. (15) "Parent-child relationship" means the
legal relationship between a child and a parent of the
child. It includes the mother-child relationship and the
father-child relationship. (16) "Paternity index" means
the likelihood of paternity calculated by computing the
ratio between: (A) the likelihood that the tested man is
the father based on the genetic markers of the tested man,
mother, and child, conditioned on the hypothesis that the
tested man is the true father of the child; and (B) the
likelihood that the tested man is not the father, based on
the genetic markers of the tested man, mother, and child,
conditioned on the hypothesis that the tested man is not
the father of the child and that the true father is from
the same ethnic and racial group as the tested man. (17)
"Presumed father" means a man who, by operation of law
under Section 204, is recognized to be the father of a
child until that status is rebutted or confirmed in a
judicial proceeding. (18) "Probability of paternity" means
the measure, for the ethnic or racial group to which the
alleged father belongs, of the probability that the
individual in question is the genetic father of the child,
compared with a random, unrelated man of the same ethnic
or racial group, expressed as a percentage incorporating
the paternity index and a prior probability. (19)
"Specimen" means a sample of one or a combination of
blood, buccal cells, bone, hair, or other body tissue or
fluid taken from an individual for genetic testing. (20)
"State" means a State of the United States, the District
of Columbia, Puerto Rico, the United States Virgin
Islands, or any territory or insular possession subject to
the jurisdiction of the United States. The term includes
an Indian tribe or band, or Alaskan native village, which
is recognized by federal law or formally acknowledged by a
State. (21) "Support-enforcement agency" means a public
official or agency authorized to seek: (A) enforcement of
support orders or laws relating to the duty of support;
(B) establishment or modification of child support; (C)
determination of parentage; or (D) the location of
child-support obligors and their income and assets.
Reporter's Notes The definition of "specimen" in
subsection (18) lists constituent elements of "body tissue
and fluids" in order to clarify biological terminology for
the legal profession. In states with statutes employing
only the broad terms, courts and lawyers have evidenced
confusion about the fact that buccal cells, bone, hair,
etc. are "body tissues." Subsection (19) is based on the
definition of "State" in the Uniform Child-Custody
Jurisdiction and Enforcement Act Section 102(15)-(16).
Subsection (20) is derived from Uniform Interstate Family
Support Act Section 101(20).
SECTION 103. SCOPE OF [ACT]. (a) This [Act] governs
every determination of the parentage of a child by a court
of competent jurisdiction[, and appropriate agency] of
this State. (b) This [Act] does not create, enlarge, or
diminish parental rights and duties as established by
other law of this State. Section 103 [(c) This [Act] does
not authorize or prohibit an agreement between a
gestational mother and an intended parent in which the
gestational mother relinquishes all rights as a parent of
a child born through assisted reproduction, and which
provides that the intended parent becomes the parent of
the child.] Reporter's Notes This section makes clear that
the Act applies not just in so-called "paternity suits,"
but also in all disputes of parentage, whether in a
proceeding involving divorce, paternity, probate, or any
other legal matter. In contrast to Sections 17, 18, and
22-25 of the UNIFORM PARENTAGE ACT of 1973, this Act does
not provide any significant substantive rules regarding
enforcement, modification, support, birth records,
adoption, or termination of parental rights. Except for
references to unspecified rights and duties regarding
custody, visitation, and child support, these matters are
left to other provisions in each state's statutory scheme.
SECTION 104. COURT OF THIS STATE. The following courts
are authorized to determine parentage under this [Act]:[
list appropriate courts] Reporter's Note Source: Uniform
Interstate Family Support Act 102; Uniform Child Custody
Jurisdiction and Enforcement Act 102(6). state courts
that are authorized to determine parentage vary
enormously, i.e. district, superior, chancery, surrogate,
county, family, probate, etc. Identifying the appropriate
courts is left to each enacting jurisdiction.
SECTION 105. PROTECTION OF PARTY AND CHILD. This [Act]
is subject to other law of this state governing the
health, safety, and liberty of a party or child that could
be jeopardized by disclosure of identifying information,
including address, telephone number, place of employment,
and if appropriate, the child's day-care facility and
school.
Reporter's Notes Source: Uniform Child Custody
Jurisdiction and Enforcement Act 209(e).
ARTICLE 2 PARENT-CHILD RELATIONSHIP
SECTION 201. ESTABLISHMENT OF PARENT-CHILD
RELATIONSHIP. (a) The mother-child relationship is
established between a child and a woman by: (1) proof of
the woman's having given birth to the child [, except as
otherwise provided in Article 9]; (2) a determination of
the woman's maternity of the child by a court; [or] (3)
the adoption of the child by the woman[; or (4) the
woman's status as an intended parent of a child born
pursuant to an approved gestational agreement under
Article 9]. (b) The father-child relationship is
established between a child and a man by: (1) an
unrebutted presumption of the man's paternity of the child
as provided in Section 204; (2) the man's signing an
unrescinded acknowledgment of paternity as provided under
Article 3; (3) a determination of the man's paternity of
the child by a court; (4) the adoption of the child by the
man; [or] (5) the man's consent to assisted reproduction
by his wife under Article 8[; or (6) the man's status as
an intended parent of a child born pursuant to an approved
gestational agreement under Article 9]. Reporter's Notes
Derived from UPA (1973), 4, and 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 and is entitled to the same
protections of the law as a child whose parents are or
were married to each other. Reporter's Notes Derived from
Massachusetts Gen. Laws ch. 209C, 1. The broad statement
according equal treatment to a nonmarital child is not to
be construed to extend similar equality to parental
rights. For example, Uniform Probate Code 2-705(b)
prohibits inheritance by a parent of a nonmarital child
through intestate succession if the parent has not lived
with the child as a regular member of the household.
SECTION 203. CONSEQUENCES OF ESTABLISHMENT OF
PARENTAGE. Unless parental rights are terminated, the
parent-child relationship established by this [Act]
applies for all purposes except as otherwise explicitly
provided under other law of this State.. Reporter's Notes
Derived from USCACA 10. This may seem to state the
obvious, but both the statement and the qualifier are is
necessary because a literal reading of 201-203 could
lead to erroneous constructions without further
explanation. The basic statement of the section is to make
clear that a birth mother is not a parent once her
parental rights have been terminated. Similarly, a man
whose paternity has been established by acknowledgment or
by court determination may subsequently have his parental
rights terminated. The qualifier is necessary because
other statutes may restrict other the rights of a parent.
For example, Uniform Probate Code 2-114(c) precludes a
parent of a child (and the parent's family) from
inheriting from the child by intestate succession "unless
that natural parent has openly treated the child as his
[or hers] and has not refused to support the child."
SECTION 204. PRESUMPTION OF PATERNITY IN CONTEXT OF
MARRIAGE. (a) A man is presumed to be 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[, or after a decree of separation];
(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;
or (4) after the birth of the child, he and the mother of
the child have married each other in apparent compliance
with law, whether or not the marriage is, or could be
declared, invalid, and he voluntarily: (A) asserted his
paternity of the child in writing [filed with the state
agency responsible for maintaining birth records]; (B)
agreed to be named as the child's father on the child's
birth certificate; or (C) promised to support the child as
his own in a written agreement. (b) A father-child
relationship established by this section may be contested
only as provided in Article 6 or 7.
Reporter's Notes Source: UPA 4 (1973). The
presumptions established in subsections (a)(1)-(4) of the
1973 Act are virtually unchanged, but the two nonmarital
presumptions found in (a)(5), (6) have been eliminated.
The presumptions based on the marital status of the
parties are readily ascertainable by proof of a valid or
attempted marriage. The nonmarital presumptions were
totally fact driven and required time-consuming inquiries.
Genetic testing is a far more economical method to resolve
the question of the paternity of a nonmarital child.
ARTICLE 3 VOLUNTARY ACKNOWLEDGMENT OF PATERNITY
Introductory Comment Although voluntary acknowledgment
of paternity has long been an alternative to the contested
paternity suit, action by the U.S. Congress has
fundamentally changed the procedure. Under UNIFORM
PARENTAGE ACT 4 (1973) the inclusion of a man's name on
the child's birth certificate merely created a presumption
of paternity. In enacting the Personal Responsibility at
Work Opportunity Reconciliation Act in 1996 (PRWORA, also
known as the Welfare Reform Act) Congress tied federal
child support enforcement funds to a requirement that all
states to enact laws that greatly strengthen the effect of
a man's voluntary acknowledgment of paternity. In brief, a
completed valid acknowledgment is to be considered the
equivalent of a judicial determination of paternity. This
article provides a comprehensive version for the states to
comply with this quasi-mandate of Congress (quasi because
it is not a substantive mandate, but given the fact that
it is tied to a federal subsidy has virtually an identical
effect to a substantive mandate). That is, all states are
sure to comply with federal law in order to keep federal
money flowing. A comprehensive approach is required
because the congressional act is badly flawed in many
respects. Primary among these flaws is the fact that
Congress did not take into account the fact that a mother
who, in cooperation with the actual father of the child,
seeks to have the man acknowledged the child may be
married to another man. By virtue of the laws in universal
effect, including this version of the parentage act, the
husband of the mother is the presumed father of the child,
see 204, supra. Thus, by ignoring the real possibility
that there will be both an acknowledging father and a
presumed father, Congress inadvertently left it to the
states to sort out the difficulties inherent in such a
fact situation. Moreover, Congress directed that the
acknowledgment could both be rescinded within a particular
timeframe and challenged-without stating a timeframe. This
too is dealt with in Article 3. The congressional language
creating the challenge to the drafting committee is as
follows: 666. Requirement of Statutorily Prescribed
Procedures To Improve Effectiveness of Child Support
Enforcement. (a) Types of procedures required. In order to
satisfy section 654(20)(A) of this title, each State must
have in effect laws requiring the use of the following
procedures, consistent with this section and with
regulations of the Secretary, to increase the
effectiveness of the program which the State administers
under this part: * * * (5) Procedures concerning paternity
establishment. * * * (C) Voluntary paternity
acknowledgment. (i) Simple civil process. Procedures for a
simple civil process for voluntarily acknowledging
paternity under which the State must provide that, before
a mother and a putative father can sign an acknowledgment
of paternity, the mother and the putative father must be
given notice, orally and in writing, of the alternatives
to, the legal consequences of, and the rights (including,
if 1 parent is a minor, any rights afforded due to
minority status) and responsibilities that arise from,
signing the acknowledgment. * * * (iv) Use of paternity
acknowledgment affidavit. Such procedures must require the
State to develop and use an affidavit for the voluntary
acknowledgment of paternity which includes the minimum
requirements of the affidavit specified by the Secretary
under section 652(a)(7) of this title for the voluntary
acknowledgment of paternity, and to give full faith and
credit to such an affidavit signed in any other State
according to its procedures. (D) Status of signed
paternity acknowledgment. (i) Inclusion in birth records.
Procedures under which the name of the father shall be
included on the record of birth of the child of unmarried
parents only if- (I) the father and mother have signed a
voluntary acknowledgment of paternity; or (II) a court or
an administrative agency of competent jurisdiction has
issued an adjudication of paternity. Nothing in this
clause shall preclude a State agency from obtaining an
admission of paternity from the father for submission in a
judicial or administrative proceeding, or prohibit the
issuance of an order in a judicial or administrative
proceeding which bases a legal finding of paternity on an
admission of paternity by the father and any other
additional showing required by State law. (ii) Legal
finding of paternity. Procedures under which a signed
voluntary acknowledgment of paternity is considered a
legal finding of paternity, subject to the right of any
signatory to rescind the acknowledgment within the earlier
of- (I) 60 days; or (II) the date of an administrative or
judicial proceeding relating to the child (including a
proceeding to establish a support order) in which the
signatory is a party. (iii) Contest. Procedures under
which, after the 60-day period referred to in clause (ii),
a signed voluntary acknowledgment of paternity may be
challenged in court only on the basis of fraud, duress, or
material mistake of fact, with the burden of proof upon
the challenger, and under which the legal responsibilities
(including child support obligations) of any signatory
arising from the acknowledgment may not be suspended
during the challenge, except for good cause shown. (E) Bar
on acknowledgment ratification proceedings. Procedures
under which judicial or administrative proceedings are not
required or permitted to ratify an unchallenged
acknowledgment of paternity.
SECTION 301. ACKNOWLEDGMENT OF PATERNITY. The mother of
a child and a man claiming to be the father of the child
may execute an acknowledgment of paternity to establish
the man's paternity.
SECTION 302. EXECUTION OF ACKNOWLEDGMENT OF PATERNITY.
(a) An acknowledgment of paternity must be: (1) in
writing; (2) signed under penalty of perjury by the mother
and by a man seeking to establish his paternity; and (3)
state whether the child whose paternity is being
acknowledged has an adjudicated father or presumed father.
(b) If the mother or the acknowledging man declares in the
acknowledgment that a different man is a presumed father,
the acknowledgment must be accompanied by a denial of
paternity signed by the presumed father or the
acknowledgment is void. (c) If the mother declares in the
acknowledgment that there is an adjudicated father, the
acknowledgment is void. Reporter's Notes Federal law, 42
U.S.C. 666(a)(5)(C), mandates that in order to retain the
subsidy for child support enforcement, state law must
provide procedures for the voluntary acknowledgment of
paternity. This is simple to mandate, but the application
is quite complicated. Problems apparently not foreseen by
Congress include fact situations in which the mother is
married to someone other than the man who is willing to
admit to paternity. Federal law gives no guidance.
Recognizing that a large number of births will occur under
such circumstances, several states have passed laws
allowing the presumed father to sign a denial of
paternity, which must be filed as part of the
acknowledgment. The draft adopts this common sense
solution; otherwise the acknowledgment would have no legal
consequence because it cannot affect the legal rights of
the presumed father.
SECTION 303. DENIAL OF PATERNITY. (a) A presumed father
of a child may execute a denial of his paternity of that
child. (b) A denial of paternity must be: (1) in writing;
and (2) signed by the presumed father under penalty of
perjury. (c) A man who has previously been adjudicated to
be the father of a child may not sign a valid denial of
paternity. A challenge of the previous adjudication is
effective only under other provisions of this [Act].
SECTION 304. SPECIAL RULES FOR ACKNOWLEDGMENT OR DENIAL
OF PATERNITY. (a) An acknowledgment of paternity or a
denial of paternity may be contained in a single document
and may be signed in counterparts. (b) An acknowledgment
or denial of paternity may be signed before the birth of
the child, and takes effect on the birth of the child or
the filing of the document, whichever occurs later. (c) An
adult or a minor may sign an acknowledgment or denial of
paternity.
SECTION 305. EFFECT OF ACKNOWLEDGMENT AND DENIAL OF
PATERNITY. (a) Except as otherwise provided in subsection
(b), a signed acknowledgment of paternity filed with the
[agency maintaining birth records] constitutes a legal
finding of paternity of a child equivalent to a judicial
determination and upon the acknowledging father all of the
rights and imposes all of the duties of a parent by virtue
of law. (b) An acknowledgment of paternity in which the
signatories falsely deny the existence of a presumed
father is voidable within the time provided for rescission
under Section 306 or within the time for challenge under
Section 307. (c) A denial of paternity signed by a
presumed father filed with the [agency maintaining birth
records] in conjunction with an acknowledgment of
paternity signed by the mother and the acknowledging
father constitutes a legal finding of nonpaternity of the
presumed father and discharges the presumed father from
all the rights and duties of a parent.
SECTION 306. NO FILING FEE FOR ACKNOWLEDGMENT. The
[agency maintaining birth records] may not charge a fee
for the filing of the acknowledgment.
SECTION 307. PROCEEDING FOR RESCISSION. (a) Subject to
the requirements of subsection (b), a signatory may
maintain a proceeding for rescission of an acknowledgment
of paternity or a denial of paternity. (b) A proceeding
for rescission of an acknowledgment or denial of paternity
must be commenced before the earlier of: (1) the
expiration of 60 days after the filing of the
acknowledgment or denial of paternity with the [agency
maintaining birth records]; or (2) the date of the first
hearing before a court to determine an issue relating to
the child in which the signatory is a party, including a
proceeding that establishes support. (c) A proceeding to
rescind an acknowledgment or denial of paternity must be
conducted in the same manner as a proceeding to determine
parentage under Article 6.
SECTION 308. CHALLENGE AFTER EXPIRATION OF TIME FOR
RESCISSION. (a) A signatory of an acknowledgment of
paternity or denial of paternity may commence a proceeding
to challenge the acknowledgment or denial. A proceeding to
challenge an acknowledgment or denial of paternity
commenced after the period for rescission provided in
Section 306 may be brought only on the basis of fraud,
duress, or material mistake of fact. The party challenging
the acknowledgment or denial bears the burden of proof. (b)
A proceeding to challenge an acknowledgment or denial of
paternity must be conducted in the same manner as a
proceeding to determine parentage under Article 6. (c) A
proceeding to challenge an acknowledgment or denial of
paternity may not be commenced more than [two years] after
an acknowledgment or denial is filed with the [agency
maintaining birth records]. Reporter's Notes This section
reflects the decision of the Drafting Committee to require
an adjudicatory process to rescind a voluntary
Acknowledgement of paternity. A federal statute, 42 U.S.C.
666(a)(5)(c)(D)(ii), mandates that in order to retain the
federal child support subsidy, state law must provide a
right of rescission to signatories of an acknowledgment of
paternity. However, the federal statute does not prescribe
the method for the rescission. Because an acknowledgment
of paternity (or a denial) is an act of significant legal
consequence, the proposed adjudicatory requirement will
result in a legal determination of the child's parentage.
The Drafting Committee believes that a system that allows
a signatory to merely file a rescission with the state
bureau of vital statistics would be an unwise policy
choice. The adjudicatory procedure may be either judicial
or administrative, at the option of the state legislature.
Appendix to Section 307, infra, provides a table
identifying the methods with which various states
currently address the issue.
SECTION 309. PROCEDURE FOR RESCISSION OR CHALLENGE. (a)
Every signatory to an acknowledgment of paternity or
denial of paternity must be made a party to a proceeding
to rescind or challenge the acknowledgment or denial. (b)
Except for good cause shown, during the pendency of a
proceeding to rescind or challenge an acknowledgment or
denial of paternity, the court may not suspend the legal
responsibility of a signatory arising from an
acknowledgment, including the duty to pay child support. (c)
On a determination of paternity or nonpaternity, the court
shall direct the [agency maintaining birth records] to
amend the birth record of the child in accordance with the
court's determination.
SECTION 310. RATIFICATION BARRED. A court or
administrative entity conducting a judicial or
administrative proceeding is neither required nor
permitted to ratify an unchallenged acknowledgment of
paternity.
SECTION 311. FULL FAITH AND CREDIT. A court of this
State shall give full faith and credit to an
acknowledgment of paternity signed in another State if the
acknowledgment has been signed in apparent compliance with
the law of the other State.
SECTION 312. FORMS FOR ACKNOWLEDGMENT AND DENIAL OF
PATERNITY. (a) To facilitate compliance with this article,
the [agency maintaining birth records] shall prescribe
forms for the acknowledgment of paternity and denial of
paternity. (b) The forms prescribed under this section
must: (1) contain information regarding the procedure for
rescission of the forms; (2) provide that signatures be
witnessed and signed under penalty of perjury; and (3)
state whether the mother, the man claiming to be the
father, or the presumed father, if any, is a minor. (c)
The form for acknowledgment of paternity must inform the
mother and the man claiming to be the father that his
signing of the acknowledgment of paternity with the
consent of the mother, unless rescinded or challenged
within the time periods established by the [Act]: (1)
creates the parent-child relationship between him and the
child; (2) imposes upon him a legal duty to support the
child; and (3) enables a court to grant him the rights of
custody or visitation with the child. (d) The form for
denial of paternity must inform the mother and the
presumed father that his signing of the denial of
paternity with the consent of the mother, unless rescinded
or challenged within the time periods established by the
[Act] for rescission will bar: (1) his future claim of
paternity of the child and his rights of custody or
visitation with the child; and (2) her from asserting a
claim against him for support of the child.
SECTION 313. VALIDITY OF FORMS. A valid acknowledgment
of paternity or denial of paternity is not affected by a
later modification of the prescribed form.
SECTION 314. RELEASE OF INFORMATION. The [agency
maintaining birth records] may release information
relating to the acknowledgment or denial of paternity to a
signatory of the acknowledgment or denial, or to [a court
of this State or another state or to other appropriate
state agencies].
SECTION 315. ADOPTION OF RULES. The [agency maintaining
birth records] may adopt rules to implement this article.
Reporter's Notes States will implement voluntary
acknowledgment of paternity procedures in a variety of
ways, depending on local practice. This grant of
rulemaking authority to carryout the provisions of this
Article, could include electronic transmission of birth
and acknowledgment data to the designated state agency.
ARTICLE 4 PATERNITY REGISTRY
PART 1 GENERAL PROVISIONS
SECTION 401. ESTABLISHMENT OF REGISTRY. A registry of
paternity is established in the [agency maintaining
registry of paternity]. Reporter's Notes Beginning with
Stanley v. Illinois, 405 U.S. 545 (1972) and continuing
through the 1970s and early 1980s the Supreme Court of the
United States recognized the rights of nonmarital fathers
with respect to their nonmarital children. In 1983, the
Court upheld the constitutionality of the New York
paternity registry in the case of Lehr v. Robertson, 463
U.S. 248 (1983). The New York statute requires fathers of
children born out of wedlock to register if they wish to
be notified of any termination of parental rights or
adoption proceeding. Following a series of well-
publicized adoption cases wherein nonmarital fathers had
not been given proper notice, legislatures began
responding to these cases by enacting paternity registries
similar to the New York statute. As of May, 1999, at least
28 states had enacted legislation creating paternity
registries. This draft accepts the concept, but with some
significant differences from the New York model. In Lehr,
the father was actually already in litigation seeking to
establish his parental rights, but still did not prevail
because he had failed to register his claim. This Act
excepts from registration those persons who initiate a
proceeding for paternity, notwithstanding the failure to
register. In addition, the Act applies only to children
under one year of age at the time of the court hearing,
see Section 405, infra. This recognizes the need to
expedite infant adoptions, while properly protecting the
rights of nonmarital fathers who may have had some
informal relationship with the child following birth.
Finally, this Act requires those who register and who are
served with notice of a proceeding for termination of
parental rights or adoption to respond to such a
proceeding, by either admitting paternity or cross-action
for paternity. Section 404. This gives the nonmarital
father the opportunity to step forward to accept
responsibility of parenthood, but failing to do so, will
not derail the termination or adoption proceeding. See
Appendix to Section 401, infra.
SECTION 402. REGISTRATION OF CLAIM OF PATERNITY. (a) To
ensure notice of a proceeding under Section 403, a man who
wishes to be notified of a proceeding for termination of
parental rights or adoption of a child that he may have
fathered, must register with the [agency maintaining
registry of paternity]. (b) A man is not required to
register in the registry of paternity if: (1) a
father-child relationship between the man and the child
has been established under Article 2, 3, 6, or 7; or (2)
the man commences a proceeding to determine his parentage
before the court has terminated his parental rights. (c) A
man may register before the birth of the child and must
register no later than 30 days after the birth. (d) A man
who registers a claim of paternity in the registry of
paternity shall promptly notify the registry in writing of
any change in the information registered. The [agency
maintaining registry of paternity] shall incorporate all
new information received into its records, but need not
affirmatively seek to obtain current information to be
maintained in the registry. Reporter's Notes Although
often advertised as being designed to protect the claims
of paternity from arbitrary elimination, in truth the
primary purpose of such a registry is to facilitate infant
adoptions by licensed agencies. Therefore, limiting the
consequence of a failure to register with a registry of
paternity to termination of paternal rights in cases of
infant adoption seems appropriate. If an infant adoption
is not consummated in the first year of the child's life,
throughout the minority of the child the nonmarital father
and the mother remain responsible for support and eligible
for custody or visitation. The latter fact situation
distinguishes it from an infant adoption in which both
parents lose those right and duties for the benefit of the
child.
SECTION 403. NOTICE OF PROCEEDING TO REGISTRANT. Notice
of a proceeding affecting a child who is, or may be, the
subject of a proceeding for termination of parental rights
or adoption must be given to a man who has timely
registered in the registry of paternity. Notice must be
given in a manner prescribed for service of process in a
civil action. Reporter's Notes This section is the logical
conclusion to the legal rationale for establishing a
paternity registry. In a termination of parental rights or
adoption proceeding, the registry provides a clear
procedure for resolving whether a nonmarital father
intends to assert his rights with regard to the child. If
he registers, termination of his rights and adoption of
his child may not proceed without notice to him, thereby
affording him the opportunity to assert his paternity and
claims for custody or visitation.
SECTION 404. TERMINATION OF PARENTAL RIGHTS OR
ADOPTION: CHILD LESS THAN ONE YEAR OF AGE. The rights of a
man who may have fathered a child who has not attained one
year of age at the time of the hearing may be terminated
without notice if: (1) he failed to register timely with
the [agency maintaining registry of paternity] under this
article; and (2) is not exempt from registration under
Section 402(b). Reporter's Notes This section is the
obverse logical conclusion to the legal rationale for
establishing a paternity registry. In a termination of
parental rights or adoption proceeding, the registry
provides a clear procedure for resolving that a man does
not intend to assert parental rights with regard to the
child. Although the registry protects a man's right to
notice in a termination or adoption proceeding, his
failure to register waives those rights. Thus, the
registry is both a first step for claiming parental rights
and the end of those rights for those persons who do not
register. If a man fails to register with the paternity
registry, a termination and adoption may proceed without
fear of a belated claim, most particularly a claim coming
after adoptive parents have received custody of the child.
This expedited procedure greatly facilitates infant
adoption, which in truth explains the existence - and
popularity - of the registries and their strong support by
the adoption community.
SECTION 405. TERMINATION OF PARENTAL RIGHTS OR
ADOPTION: CHILD AT LEAST ONE YEAR OF AGE. (a) If a child
without a presumed father has attained one year of age,
notice of a proceeding for termination of parental rights
or adoption must be given to a man who may be the child's
father whether or not he has registered with [agency
maintaining registry of paternity] under this article. (b)
Notice must be given in a manner prescribed for service of
process in a civil action. Reporter's Notes With the
exception of children under one year of age, this section
reaffirms Stanley v. Illinois, supra, and its progeny by
requiring notice to the nonmarital father of a termination
of parental rights or adoption proceeding. This section is
derived from Uniform Putative and Unknown Fathers Act 3
(1989). This protects those fathers who may have had some
informal nonlegal relationship with the child or mother
for some time and prevents unilateral action to adversely
affect the father's rights. Although Stanley involved a
nonmarital father who had established a long-term parental
relationship with his children, the principle of notice to
such men is expanded to apply to all fathers of nonmarital
toddlers to teenagers.
[Sections 406-410 reserved for expansion] PART 2
OPERATION OF REGISTRY
SECTION 411. INFORMATION TO BE PROVIDED TO REGISTRANT
BY FORM FOR REGISTRATION. (a) The [agency maintaining
registry of paternity] shall prepare a form, to be signed
by the man claiming paternity under penalty of perjury,
for registering with the agency. The form must provide
notice to the man that: (1) a timely registration entitles
the man to be served in a proceeding for termination of
parental rights or for adoption until the child attains
one year of age; (2) he has a right to commence a
proceeding for paternity to establish a father-child
relationship, which may be forfeited if he fails to timely
register; (3) the information disclosed on the form may be
used to establish an obligation of child support; (4) he
may seek to be awarded custody of or visitation with the
child; (5) services to assist in establishing paternity
are available to him through the State's
support-enforcement agency; (6) he should register in
another state if conception or birth of the child occurred
in another State; and (7) information on registries of
other states is available from [appropriate state agency
or agencies]. (b) A registration must be filed on a form
prepared by the [agency maintaining registry of
paternity].
SECTION 412. FURNISHING OF INFORMATION:
CONFIDENTIALITY. (a) The registry need not seek to locate
the mother, but if the mother's address has been provided,
the [agency maintaining registry of paternity] shall send
a copy of the notice of a man's registration with the
registry to her at that address. (b) Information contained
in the registry of paternity is confidential and may be
released on request only to: (1) the court; (2) the mother
of the child who is the subject of the registration; (3)
an authorized agency; (4) a licensed child-placing agency;
(5) a support-enforcement agency; (6) an attorney of
record participating in a proceeding under this [Act] or
in a proceeding for termination of parental rights or
adoption of a child; and (7) the registry of paternity in
another State. (c) The [agency maintaining registry of
paternity] shall furnish information regarding the
registry of paternity by electronic data exchange or any
other available means to [other appropriate agencies].
SECTION 413. PENALTY FOR RELEASING INFORMATION. A
person commits a [appropriate level misdemeanor] if the
person intentionally releases information from the
registry to an individual or entity not identified as
authorized to receive the information under Section 412.
SECTION 414. REVOCATION OF REGISTRATION. A man who
registers under this article may revoke the registration
at any time by sending to the registry of paternity a
written revocation signed by him and witnessed or
notarized. The revocation must state that, to the best of
the man's knowledge and belief: (1) he is not the father
of the child; or (2) an individual other than the
registrant has acknowledged paternity under Article 3 of
this [Act] or has been determined by a court to be the
father of the child.
SECTION 415. REMOVAL OF REGISTRANT'S NAME. If a court
determines that the registrant is not the father of the
child, the court shall direct the [agency maintaining
registry of paternity] to remove the registrant's name
from the registry of paternity.
SECTION 416. UNTIMELY ATTEMPT TO FILE CLAIM. If a man
seeks to register with the [agency maintaining registry of
paternity] more than 30 days after the birth of the child
or the [agency maintaining registry of paternity] receives
notice of an order terminating the rights of a registrant
with regard to a child from the clerk of the court, the
[agency] shall: (1) refuse to file the registration; (2)
notify the registrant that his request to file a claim has
been denied; and (3) state the reason for the denial.
SECTION 417. FEES FOR REGISTRY. (a) A fee may not be
charged for filing a registration. (b) [Except as
otherwise provided in subsection (c), the] [The] [agency
maintaining registry of paternity] may charge a reasonable
fee for making a search of the registry of paternity and
for furnishing a certificate. [(c) A support-enforcement
agency [and other appropriate agencies, if any] [is/are]
not required to pay a fee permitted by subsection (b).]
[Sections 418-420 reserved for expansion]
PART 3 SEARCH OF REGISTRIES
SECTION 421. SEARCH OF APPROPRIATE REGISTRY. (a) If a
child does not have an established father-child
relationship under Article 2, 3, or 6, [a petitioner] for
adoption of the child must obtain a certificate of
diligent search of the registry of paternity of this
State. (b) If the [petitioner] for adoption has reason to
believe that the conception of the child may have occurred
in another state, the [petitioner] must also obtain a
certificate of diligent search from the registry of
paternity in that state, if any.
SECTION 422. CERTIFICATE OF SEARCH OF REGISTRY. (a) On
request, the [agency maintaining registry of paternity]
shall furnish a certificate attesting to the results of a
search of the registry of paternity regarding a claim of
paternity to: (1) the court; (2) the mother of a child;
(3) an authorized agency; (4) a licensed child-placing
agency; (5) a support-enforcement agency; or (6) an
attorney of record participating in a proceeding relating
to a child who is the subject of the certificate under
this [Act], or for termination of parental rights of, or
adoption of that child. (b) A certificate provided by the
[applicable state agency] must be signed by [applicable
individual or officer] and state that: (1) a diligent
search has been made of the registry of paternity
maintained by the [agency]; and (2) a registration: (A)
has been found pertaining to a man who may be the father
of the child who is the subject of the proceeding for
termination of parental rights or adoption, containing the
information required to identify the registrant; or (B)
has not been found pertaining to a man who may be the
father of a child who is the subject of the proceeding for
termination of parental rights or adoption.
SECTION 423. FILING CERTIFICATE OF SEARCH. (a) A
[petitioner] must file the certificate of search with the
court before a hearing on the merits in a proceeding for
termination of parental rights or adoption may be
completed. (b) If a child who has not attained one year of
age is the subject of a proceeding for termination of
parental rights or adoption, filing a certificate of
search of the registry stating that a relevant
registration has not been found pertaining to a man
identified as a possible father of the child dispenses
with the necessity of personal or constructive service on
the possible father.
SECTION 424. ADMISSIBILITY OF REGISTERED INFORMATION. A
certificate of search of an appropriate registry of
paternity is admissible in a proceeding for termination of
parental rights or adoption, and, if relevant, in other
legal proceedings.
ARTICLE 5 GENETIC TESTING
SECTION 501. APPLICATION OF ARTICLE. This article
applies to genetic testing of an individual who: (1)
submits voluntarily to testing; or (2) is tested pursuant
to an order of a court or the support-enforcement agency.
Reporter's Notes This section is intended to avoid
problems with regard to the admissibility of the result of
genetic testing voluntarily submitted to such as those
encountered in Catawba County v. Khatod, 479 S.E. 2d 270
(N.C. App 1997) and Yokley v. Townsend, 849 S.W. 2d 722
(Mo. App. W.D. 1993).
SECTION 502. ORDER FOR TESTING. (a) Except as otherwise
provided in this article and Articles 6 and 7, the court
or support-enforcement agency shall order the parties and
the child to submit to genetic testing if the request for
testing is supported by the sworn statement of a party:
(1) alleging paternity and stating facts establishing a
reasonable probability of the requisite sexual contact
between the parties; or (2) denying paternity. (b) Genetic
testing must be of a type generally acknowledged to be
scientifically reliable and performed in a testing
laboratory accredited by: (1) the American Association of
Blood Banks, or a successor to its functions; (2) the
American Society for Histocompatibility and Immunogenetics,
or a successor to its functions; or (3) an accrediting
body designated by the U.S. Secretary of Health and Human
Services. (c) If a request for genetic testing of a child
is made before birth, the court or support-enforcement
agency shall order the testing of the child as soon as
medically practicable after birth, but may not order the
mother to submit to testing before birth. (d) If two or
more men are identified as an alleged father of a child,
the court may order the men to submit to genetic testing.
(e) If a man admits paternity, the parties may waive or
the court may dispense with genetic testing. (f) The court
may decline to order genetic testing as provided in this
section if the court determines that Article 7 applies to
the proceeding. Reporter's Notes Subsections (a) and (b)
conform to the mandates of 42 U.S.C. 666(a)(5)(B)(i)(I)(II)
and 666(a)(5)(F)(i)(I)(II). As of the date of this
writing, the Secretary of Health and Human Services has
not officially designated any accreditation bodies as
referenced in subsection (b)(3). However, Information
Memorandum O.C.S.E.-IM-97-03, April 10, 1997, from the
Deputy Director of O.C.S.E. identifies the American
Association of Blood Banks and American Society for
Histocompatibility and Immunogenetics as meeting this
requirement.
SECTION 503. REQUIREMENTS OF GENETIC TESTING. (a) The
results of genetic testing must be in writing and signed
under penalty of perjury by a designee of the testing
laboratory. (b) Documentation from the genetic-testing
laboratory of the following information is sufficient to
establish a reliable chain of custody that allows the
results of genetic testing to be admissible without
testimony: (1) the names and photographs of the
individuals whose specimens have been taken; (2) the name
of the person who collected the specimens; (3) the place
and date the specimens were collected; (4) the name of the
person who received the specimens in the testing
laboratory; and (5) the date the specimens were received.
(c) A specimen used in the testing need not be of the same
kind for each person undergoing genetic testing.
[Alternative A] (d) Based on information provided by an
individual about his or her ethnic or racial groups, the
testing laboratory shall determine the databases from
which to select frequencies for use in the calculations.
If there is disagreement as to the testing laboratory's
choice, the following rules apply: (1) the individual
objecting may require the testing laboratory, within 30
days after receipt of the test, to recalculate the
probability of paternity using an ethnic or racial group
different from that used by the laboratory. (2) the
individual objecting to the testing laboratory's initial
choice shall: (A) if the frequencies are not available to
the testing laboratory for the ethnic or racial group
requested, provide the requested frequencies compiled in a
manner recognized by accrediting bodies; or (B) engage
another testing laboratory to make the calculations. (3)
The testing laboratory may use its own statistical
estimate if there is a question regarding which ethnic or
racial group is appropriate. If available, the testing
laboratory shall calculate the frequencies using
statistics for any other ethnic or racial group requested.
(e) If, after recalculation using a different ethnic or
racial group, the genetic test does not create a
presumption of paternity under Section 504, an individual
who has been tested may be required to submit to
additional genetic testing. [Alternative B] (d) The
laboratory shall conduct the testing in accordance with
current scientific standards. Reporter's Notes Subsection
(b) is designed to indicate that in these civil trials
only a minimal showing of reliability of the chain of
custody is needed. This section is to avoid evidentiary
problems, such as finding that the report of the results
of genetic testing is not admissible in a paternity case
because the pilot of the airplane that transported the
specimens did not testify, reversed in Dotson v. Petty,
359 S.E. 2d 403 (Va. App. 1987). Most jurisdictions
apparently do not have this problem. See State v.
Brashear, 841 S.W. 2d 754 (Mo. App. 1992); DeLaGarza v.
Salazar, 851 S.W. 2d 380 (Tex.App.-San Antonio 1993, no
writ).
SECTION 504. GENETIC TESTING: PRESUMPTION. (a) A man is
presumed to be the father of a child tested if the genetic
testing complies with current scientific standards and the
results disclose that: (1) the man has at least a 99%
probability of paternity, using a prior probability of
0.50, as calculated by using the paternity index obtained
in the testing; and (2) a combined paternity index of at
least 100 to 1. (b) A genetic test establishing a
presumption of paternity as provided in subsection (a) may
be rebutted only by an additional genetic test satisfying
the requirements of this article which: (1) excludes the
man as a possible father of the child; or (2) identifies
another man as a possible father of the child. (c) Except
as otherwise provided in Section 509, if another man is
identified by a second genetic test as a possible father
of the child, the court shall order both men to submit to
additional genetic testing that satisfies the requirements
of this article. Reporter's Notes The selection of a
probability of paternity of 99.0% and a combined paternity
index of 100 to 1 as a genetic presumption is consistent
with the current standard of practice in the
genetic-testing community. Because all states except Texas
use one or the other or both, there will be a minimum
impact on legal precedents. Accrediting agencies require
the reporting of both of these numbers. Currently, 27
states have established a presumption at less than this
genetic level. However, for several years the standard of
practice in the scientific community has been 99.0%.
Therefore, raising the genetic presumption to the 99.0%
level should have no impact on those states. This number
represents a reasonable level of testing, given the
breadth of the Act and potential difficulty of working
with some specimens in a probate case. It is not intended
as a standard of practice for the laboratories, but as a
legal presumption given the legal standard of proof. The
standard of practice in paternity laboratories may change,
which is safeguarded by the requirement that laboratories
be accredited in order to perform testing under the Act.
If the accrediting organizations change the standard of
practice, the legal significance of the genetic
presumption stated in this section will be unaffected.
Genetic testing results will often exceed the statutory
minimum. During the drafting meetings several statutory
presumptions were considered, i.e., 95%, 99%, 99.9% and
99.99%. Genetic testing laboratory representatives
presented quite persuasive arguments for a variety of
choices. The Drafting Committee ultimately chose 99%
because: (1) The 99% standard reflects the current
standard of the American Association of Blood Banks
(Standards for Parentage Testing Laboratories, 3rd
Edition); (2) The standards promulgated by the various
accrediting bodies (American Association of Blood Banks
and the American Society for Histocompatibility and
Immunogenetics) will, in reality, set the benchmark for
genetic testing; (3) The 99% status represents the
plurality of American jurisdictions; (4) A standard higher
than 99% could cause evidentiary problems in probate
proceedings because of degraded specimens. Similarly,
cases involving one or more missing persons, e.g., the
mother is not available, but the child and alleged father
are available; (5) The percentage is an evidentiary
presumption that the respondent may always challenge by
requesting a second test under Section 506; and (6) A
proceeding to determine paternity is a civil action based
on a preponderance of the evidence, not a criminal action
based on evidence beyond reasonable doubt. See table in
Appendix to Section 504, infra.
SECTION 505. COSTS OF GENETIC TESTING. (a) The cost of
an initial genetic test must be paid: (1) by the
support-enforcement agency in a proceeding commenced by
that agency; (2) by the party who made the request; (3) as
agreed upon by the parties; or (4) as ordered by the
court. (b) The court may order reimbursement from a party
if the result of the genetic test is contrary to the
position of that party. Reporter's Notes Source: UPA
(1973) 11; 42 U.S.C. 666(a)(5)(B)(ii)(I); see Little
v. Streater, 454 U.S. 1, 101 S. Ct. 2202, 68 L. Ed. 2d 627
(1981).
SECTION 506. ADDITIONAL GENETIC TESTING. The court or
the support-enforcement agency shall order additional
genetic testing upon the request of an individual party
who contests the result of the original testing. If the
previous genetic testing established a presumption of
paternity under Section 504, the court or agency shall not
order additional testing unless the contestant provides
advance payment for the testing. Reporter's Notes Source:
UPA 11; 42 U.S.C. 666(a)(5)(B)(ii)(II).
SECTION 507. GENETIC TESTING WHEN NOT ALL PERSONS
AVAILABLE. (a) If a specimen is not available for genetic
testing, a court, for good cause shown, may order the
following persons, as appropriate, to submit to genetic
testing by a laboratory: (1) the parents of the mother or
of the presumed or alleged father; (2) brothers and
sisters of the mother or of the presumed or alleged
father; (3) other children of the presumed or alleged
father and their mothers; (4) other children of the mother
and their fathers; and (5) other persons the court finds
to be appropriate for testing. (b) If a specimen from the
mother of a child is not available for genetic testing,
the court may order genetic testing to proceed without a
specimen from the mother. Reporter's Notes In rare cases,
both the mother and alleged father may be missing. In such
cases, testing the mother's relatives may be useful in
establishing paternity. Subsection (a) accommodates those
cases where the mother and alleged father are both
missing. If only the mother is missing, as provided for in
subsection (b), there is generally no need to collect
samples from the mother's relatives in order to establish
paternity. Some of the persons listed for testing in
subsection (a) may not be parties to the proceeding. If
the persons do not volunteer to participate in the testing
and the individual is not a party, the court will need to
decide if it has the authority to order the testing and
the necessity of testing the objecting individual. In some
cases, the court has refused to order the testing for lack
of personal jurisdiction. Other courts have ordered the
testing as the person needed for testing is an essential
witness. See William M. v. Superior Court (Dana F.), 275
Cal. Rptr. 103 (Cal. App. 3 Dist. 1990); Estate of
Rodgers, 583 A.2d 782 (N.J. Super. A.D. 1990). At least
one state has incorporated similar language in its
statutes, see: Minn. Stat. Ann. 257.62(1).
SECTION 508. DECEASED INDIVIDUAL. For good cause shown,
the court may order genetic testing of a deceased
individual to determine the parentage of a child.
Reporter's Notes In some states the court with
jurisdiction to determine parentage might not have
jurisdiction to order disinterment of a deceased
individual. If so, that authority is provided by this
section.
SECTION 509. IDENTICAL BROTHERS. (a) If a man who is an
identical brother is identified as an alleged father, a
court may order all the identical brothers to submit to
genetic testing. (b) If genetic testing excludes none of
the identical brothers as the genetic father, and each
brother satisfies the presumption of paternity under
Section 504 without consideration of another identical
brother's probability of paternity, the court may rely on
nongenetic evidence to determine which brother is the
genetic father. Reporter's Notes See Illinois Dept. of
Public Aid v. Whitworth, 652 N.E.2d 458 (Ill. App. 4 Dist.
1995). In some cases, non-identical brothers (and even
other related men) will not be excluded after initial
testing. This section should not be used to resolve those
cases; the appropriate response is for the court to order
additional testing as provided in Section 504(c). Genetic
testing can differentiate non-identical siblings; there
should never be a case with non-identical siblings where
one is not excluded. If a case occurs in which, after
initial testing, two men are not excluded, both men should
be ordered to submit to additional testing in order to
determine which is the father. In the extremely rare case
in which a competent laboratory exhausts all of its
in-house testing and still cannot determine which
non-identical sibling is excluded, the common practice is
to provide the genetic material to another laboratory for
more extensive testing to resolve the case. Contrasting
identical brothers with non-identical twins, identical
twin alleged fathers can never be differentiated by
additional genetic testing. This creates a completely
different situation for the court. This section resolves
the identical-twin conundrum as much as it is possible to
do, and is designed to prevent the court from simply
dismissing the case.
ARTICLE 6 PROCEEDING TO DETERMINE PARENTAGE
PART 1 NATURE OF PROCEEDING
SECTION 601. PROCEEDING AUTHORIZED. A civil proceeding
may be maintained to determine the parentage of a child.
The proceeding is governed by the [rules of civil
procedure]. Reporter's Notes Source: derived from UPA
(1973) 8(2). This section authorizes the proceeding to
determine parentage, which is declared to be a "civil
proceeding" to eliminate any implication that criminal law
is involved. The bracket for filling in appropriate court
rules should be tailored to local court structure. For
example some jurisdictions have special rules for family
court, surrogate court, etc. Drawing on medieval English
precedent, many states originally treated determination of
paternity as a criminal or quasi-criminal prosecution. The
impetus for suits for bastardy, filiation, or paternity,
was to transfer the financial burden of the support of a
nonmarital child from the taxpayers of the county or the
parish to the child's biological father. Early bastardy
prosecutions often granted the alleged father procedural
advantages adapted from criminal law, including the option
of refusing to testify, sharply limiting discovery, and
requiring of proof beyond a reasonable doubt. These
strategic advantages aided the alleged father in avoiding
an erroneous paternity finding, but came at the cost of a
greatly increased risk to the mother and child of an
erroneous finding of nonpaternity. All remnants of this
unfortunate history are swept away by the simple
declaratory sentence that a suit for parentage is a civil
proceeding. Henceforth, a determination of paternity is
governed by the ordinary rules of civil procedure. The
party seeking to establish paternity is entitled to full
discovery, to compel the testimony of all witnesses, and
to have the case tried by a preponderance of the evidence.
"The equipoise of the private interests that are at stake
in a paternity proceeding supports the conclusion that the
standard of proof normally applied in private litigation
is also appropriate for these cases." Rivera v. Minnich,
483 U.S. 574, 581 (1987). As first promulgated in 1969,
UNIFORM PROBATE CODE, 2-114. Parent and Child, provided
for inheritance by a deceased father's nomarital child on
proof of paternity by clear and convincing evidence. Until
that time, most states adhered to the rule derived from
the common law of England which absolutely prohibited
paternal inheritance by an illegitimate child, no matter
how conclusive the proof of paternity might be. One such
categorical prohibition was sustained in Labine v.
Vincent, 401 U.S. 532 (1971). Thus, the UNIFORM PROBATE
CODE was ahead of its time in allowing inheritance from
the paternal side. The procedure in the current version of
the UNIFORM PROBATE CODE was added in 1978. Section 2-114
provides for parentage to be established under the
provision of the UNIFORM PARENTAGE ACT or other comparable
state law. Under this provision, a parentage determination
in probate proceedings will be treated as a civil suit in
a state that has adopted the UNIFORM PARENTAGE ACT, and
similarly in other states that have adopted comparable
provisions. This provision was not the exclusive
alternative provided by the 1978 amendments, however.
Because a handful of states had adopted the clear and
convincing evidence requirements of the original version
of the UNIFORM PROBATE CODE, this more onerous provision
was retained as a secondary alternative. The UNIFORM
PROBATE CODE was again revised to its current version in
1990. By that time, imposing discriminatory burdens on
children born out of wedlock seeking paternal inheritance
had been recognized as illogical and unjust, and had been
ruled unconstitutional by application of the intermediate
scrutiny test formulated under the 14th Amendment. Reed v.
Campbell, 476 U.S. 852 (1986). Moreover, by 1990 the
preponderance of the evidence standard had been adopted by
a number of states for determinations of paternity and
probate proceedings. Some of these states adopted the
preferred alternative of the 1978 UNIFORM PROBATE CODE,
while others adopted the preponderance standard
independently without reference to that act. Against this
background, the committee revising the UNIFORM PROBATE
CODE in 1990 abandoned the clear and convincing evidence
alternative for determining paternal relationships.
SECTION 602. STANDING TO MAINTAIN PROCEEDING. Subject
to Sections 604 and 605, a proceeding to determine the
existence or nonexistence of a parent-child relationship
may be maintained by: (1) the child; (2) the mother of the
child; (3) a man presumed to be the father of the child
under Section 204 or Section 504; (4) a man who has
acknowledged being the father under Article 3; (5) a man
alleging that he is or is not the father of the child; (6)
the support-enforcement agency [or other authorized
governmental entity]; (7) an authorized adoption agency or
licensed child-placing agency; [or] (8) 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[; or (9) an intended
parent under Article 9]. Reporter's Notes Source: UPA
(1973) 6.
SECTION 603. PARTIES TO PROCEEDING. (a) The following
individuals must be joined as parties in a proceeding to
determine parentage: (1) the mother of the child; (2) a
man presumed to be father of the child under Section 204
or 504; and (3) a man alleged by the petitioner to be the
father of the child. (b) If asserting an interest in the
child, an individual, governmental entity, adoption
agency, or licensed child-placing agency, must be joined
as a party to a proceeding to determine parentage.
Reporter's Notes Source: UPA (1973) 9. This section
partially follows, and partially rejects, the original
requirements regarding who must be named as parties.
First, contra to UPA (1973), the child is not a necessary
party. Few states require children as necessary parties;
with the widespread use of DNA testing, such a requirement
has outlived its usefulness. On the other hand, failure to
join a child as a party may result in a later successful
collateral attack on the original determination of
paternity to be filed by the child, see Lalli v. Lalli,
977 P.2d 776 (Ariz. 1999). Second, as far as can be
determined, no state requires the children to be named as
parties in every divorce proceeding; and, those decrees
serve as res judicata if a later attack on a prior
determination is mounted. Subsection (b) is designed to
cover a myriad of state law variations on those other
persons or entities who may be necessary parties. This Act
does not attempt to exhaust the subject, which is left to
other state law.
SECTION 604. NO LIMITATION: CHILD WITHOUT PRESUMED
FATHER. (a) A proceeding to determine paternity of a child
having no presumed father may be commenced at any time,
even after: (1) the child becomes an adult; or (2) an
earlier proceeding was dismissed based on the application
of a statute of limitation then in effect. (b) This
section does not apply to an issue of heirship after the
closing of an estate. Reporter's Notes Source: UPA (1973)
6, 7. In order for a state to retain the federal child
support enforcement subsidy, 42 U.S.C. 666(a)(5)(A)(i)
mandates that the states must have laws to "permit the
establishment of the paternity of a child at any time
before the child attains 18 years of age." States have
chosen a wide range of age options: age 18 (20 states),
age 19 (6 states), age 20 (2 states), age 21 (10 states),
age 22 (2 states), age 23 (2 states), and no limitation (9
states). Several states limit the establishment of
parental rights to a shorter time period. The Drafting
Committee believes that an individual's right to determine
his or her own parentage is a very important right and
should not be subject to limitation except when an estate
has been closed. Accordingly, this section allows a
proceeding to determine parentage at any time.
Anecdotally, there appear to be no reported problems
encountered in states without a statute of limitations for
such actions. See Appendix to Section 604, infra, for a
table of the state laws on this issue.
SECTION 605. LIMITATION: CHILD HAVING PRESUMED FATHER.
(a) Except as otherwise provided in subsection (b) or
Article 7, a proceeding seeking to determine paternity of
a child having a presumed father by rebutting the
presumption of paternity established under Section 204
must be commenced not later than two years after the birth
of the child. (b) A proceeding seeking to negate the
father-child relationship between a child and the child's
presumed father may be maintained at any time if the court
determines that: (1) the presumed father and the mother of
the child did not cohabit with each other or engage in
sexual intercourse during the probable time of conception;
and (2) the presumed father never resided in the same
household as the child in a father-child relationship or
treated the child as his own. (c) The court shall dismiss
a proceeding seeking to negate the father-child
relationship between a child and the child's presumed
father commenced more than two years after the birth of
the child if the presumed father: (1) resided in the same
household as the child in a father-child relationship or
treated the child as his own; (2) is affirmatively seeking
a determination of parental rights by the court naming him
as the father of the child; and (3) demonstrates that
confirming his presumed paternity is in the best interest
of the child. Reporter's Notes Source: UPA (1973) 6.
This section represents an attempt to deal with difficult
issues. First, the right of a mother or the presumed
father to challenge the presumption of paternity
established by Section 204-basically, the age-old
presumption that marriage creates a presumption that the
mother's husband is the father of a child born to her
(with some additional complexities). Second, the right, if
any, of a third-party male to claim paternity of a child
who has an existing presumed father must be clarified. The
UPA (1973) places a five-year limitation on the former
issue [Section 6(a)]. Ten states have denied standing to a
man claiming to be the father when the mother was married
to another at the time of the child's birth. In some of
these states, even though a presumed father may seek to
rebut his presumed paternity, a third-party male will be
denied standing to raise that same issue. The right of an
"outsider" to claim paternity of a child born to a married
woman varies considerably among the states. Thirty-three
states allow a man alleging himself to be the father of a
child with a presumed father to rebut the marital
presumption. Some states have granted this right through
legislation. In states, courts have recognized the alleged
father's right to rebut the presumption and establish his
paternity. Further, in some states there is both statutory
and common law support for the standing of a man alleging
himself to be the father to assert his paternity of a
child born to a married woman. This draft attempts a
middle ground on these exceedingly complex issues. A
limitation on rebutting the presumption of paternity
established under Section 204 is set at two years if the
mother and presumed father were cohabiting at the time of
conception. But, the statute is open ended if the mother
did not live with the presumed father or engage in sexual
intercourse with him at the probable time of conception.
This distinction is based on the belief that a two-year
period allows an adequate time period to resolve the
status of a child within the context of an intact family
unit; a longer period may have severe consequences for the
child. On the other hand, if the family is not intact, the
issue of nonpaternity of the presumed father is, in fact,
generally assumed by all the parties concerned under those
facts, it is inappropriate to assume a presumption known
by those concerned to be untrue. Appendix to Section 605,
infra, provides a table listing the limitation periods of
the various states.
SECTION 606. PERSONAL JURISDICTION. (a) A court of this
State having jurisdiction to determine parentage may
exercise personal jurisdiction over a nonresident
individual, or the guardian or conservator of an
individual, if the conditions prescribed in [Section 201
of the Uniform Interstate Family Support Act] are
fulfilled. (b) Lack of jurisdiction over one party does
not preclude the court from making a final determination
of parental rights binding on a different party over whom
the court has personal jurisdiction.
SECTION 607. CHOICE OF LAW. The court shall apply the
law of this State to determine the parent-child
relationship. The applicable law does not depend on: (1)
the place of the birth of the child; or (2) the residence
of the child, past or present. Reporter's Notes Source:
UIFSA 303; UPA (1973) 8(b). This section simplifies
choice of law principles; the local court always applies
local law. If in fact this state is an inappropriate
forum, dismissal for forum non-conveniens may be
appropriate.
SECTION 608. VENUE. Venue for a proceeding to determine
parentage is in the [county] of this State in which: (1)
the child resides or is found; (2) the [respondent]
resides or is found if the child does not reside in this
State; or (3) a proceeding for probate of the presumed or
alleged father's estate has been commenced. Reporter's
Notes Source: UPA (1973) 8.
SECTION 609. JOINDER OF PROCEEDINGS. If the court has
appropriate jurisdiction, a proceeding to determine
parentage may be joined with a proceeding for divorce,
annulment, legal separation, separate maintenance,
custody, visitation, support, termination of parental
rights, adoption, or probate or administration of an
estate. Reporter's Notes Source: UPA (1973) 8(2).
SECTION 610. PROCEEDING STAYED UNTIL AFTER BIRTH. A
proceeding may be commenced before or after the birth of
the child. The proceeding may not be concluded until after
the birth of the child, but the following may be done at
any time after the proceeding is commenced: service of
process, taking of depositions to perpetuate testimony,
and collection of specimens for genetic testing, except as
prohibited by Section 502(c).
SECTION 611. REPRESENTATION OF CHILD. (a) A child is
not a necessary party to a proceeding under this article.
(b) If the court finds that the interests of a child are
not adequately represented, the court shall appoint an
[attorney ad litem] to represent the child. Reporter's
Notes This section rejects UPA (1973) 9. Consistent with
603, supra, this Act rejects the view of UPA 1973 that
the child necessarily has an independent standing in a
parentage proceeding. On the other hand, if the court
determines that the child in fact does have a position at
variance with all the other litigants, an attorney may be
appointed to represent that interest.
SECTION 612. MOTHER-CHILD RELATIONSHIP. Insofar as is
practicable, the provisions of this article relating to a
proceeding to determine paternity apply to a proceeding to
determine maternity if that subject is at issue. [Sections
613-620 reserved for expansion.]
PART 2 SPECIAL RULES FOR PARENTAGE PROCEEDING
SECTION 621. ADMISSIBILITY OF RESULTS OF GENETIC TEST;
EXPENSES. (a) Except as otherwise provided in subsection (c),
a written report of a genetic-testing expert is admissible
as evidence of the truth of the facts asserted in it
unless a party objects to the report within 30 days after
its receipt and cites specific grounds for exclusion. The
admissibility of the report is not affected by whether the
testing was performed: (1) in accordance with an agreement
of the parties or an order of the court; or (2) before or
after the commencement of the proceeding. (b) A party
objecting to the results of a genetic test may call one or
more genetic-testing experts to testify in person, by
video conference or telephone, by deposition, or by any
other method approved by the court. The party objecting
bears the expense for the expert testifying. (c) If a
child has a presumed father, the results of genetic
testing are inadmissible to determine parentage unless
performed: (1) with the consent of both the mother and the
presumed father; or (2) pursuant to an order of the court
under Section 502. (d) Copies of bills for genetic testing
and for prenatal and postnatal health care for the mother
and child furnished to the adverse party at least 10 days
before a hearing are admissible in evidence to prove: (1)
the amount of the charges; and (2) that the charges were
reasonable, necessary, and customary. Reporter's Notes
Source: 42 U.S.C. 666(a)(5)(F)(ii); UPA (1973) 10,
13. This section greatly simplifies the introduction of
genetic test results, but preserves a party's right to
call the expert as a witness if desired. Subsection (c) is
intended to discourage unilateral genetic testing, usually
done in the context of a suspicious spouse seeking to
determine whether a child is actually the child of the
presumed father. While such testing cannot be stopped, the
admissibility of the result may be excluded unless the
court determines that the requirements of Section 605 have
been satisfied.
SECTION 622. CONSEQUENCES OF REFUSING GENETIC TESTING.
(a) An order for genetic testing is enforceable by
contempt. (b) If the mother declines to submit to genetic
testing, the court may proceed with testing of the child
and any man alleged to be the father. (c) If an alleged or
presumed father declines to submit to genetic testing for
parentage, that fact may be admitted as evidence. (d) The
court may issue a determination of parentage against a
[respondent] if the [respondent] declines to submit to
genetic testing as ordered by the court. Reporter's Notes
Source: UPA (1973) 10.
SECTION 623. ADMISSION OF PATERNITY AUTHORIZED. (a) A
[respondent] in a proceeding to determine paternity may
admit to the paternity of a child by filing a sworn
pleading to that effect or by admitting paternity under
oath when making an appearance or during a hearing. (b)
The court shall issue an order determining the child to be
the child of the man admitting paternity if the court
finds that the admission of paternity was made pursuant to
this section. Reporter's Notes Source: 42 U.S.C.
666(a)(5)(D)(i)(II). This section is intended to clarify
that a formal acknowledgment of paternity under Article 3
is not required when a respondent admits the paternity of
the alleged father. The admission may be made by either
the mother or alleged father. However, this section is not
designed to be used by a petitioner to determine
paternity. In that instance, a proceeding to determine
parentage as provided in Part 1, Article 6, is
appropriate.
SECTION 624. TEMPORARY ORDERS. (a) In a proceeding
under this article, the court may issue temporary orders
for support of the child if the person ordered to pay
support: (1) is a presumed father; (2) is petitioning to
have his paternity determined or has admitted paternity in
pleadings filed with the court; (3) is presumed to be the
father through genetic testing as provided under Section
504; (4) has declined to submit to genetic testing; (5) is
shown to be the father of the child by clear and
convincing evidence; or (6) is the mother. (b) A temporary
order may include provisions for custody and visitation as
provided by other state law. Reporter's Notes Source:
UIFSA 401.
[Sections 625-630 reserved for expansion]
PART 3 HEARINGS AND FINAL ORDER
SECTION 631. RESOLUTION OF CLAIM OF PATERNITY. (a) A
presumed father's paternity may be rebutted only by clear
and convincing evidence. (b) Except as otherwise provided
in Article 7, if two or more claims of paternity are in
conflict, the presumption of parentage established as the
result of genetic testing under Section 504 prevails. (c)
If no evidence of an additional genetic test is presented
to rebut a presumption of paternity under Section 504, the
court shall issue an order determining the man to be the
father of the child. (d) If the court finds that the
genetic testing fails to establish a presumption under
Section 504, the court may not dismiss the proceeding. The
results of genetic testing, along with other evidence, are
admissible to resolve the issue of paternity. (e) Subject
to a party's right to additional genetic testing as
provided in Section 506 and except as otherwise provided
in Article 7, the court shall dismiss with prejudice a
proceeding to determine paternity of a man if it finds
that genetic testing excludes the man as the father of the
child. Reporter's Notes Source: UPA (1973) 14.
Subsection (d) is intended to indicate that on occasion a
genetic test may not reach the level required to establish
a presumption of paternity. In modern paternity testing,
this is a very rare occurrence when living persons are
tested. On the other hand, this may present a problem in
probate matters, which often must rely on the use of
non-traditional specimens, such as bone and hair. In this
context, the amount of testing may be limited by the
specimen available. This section is designed to indicate
that if the result of the genetic testing is less than the
presumption, the probability of paternity is not an
indicator of nonpaternity. A probability of paternity
percentage and a combined paternity index that do not
exclude the alleged father but also do not establish a
presumption of paternity as provided by Section 504 are to
be considered as indicators of paternity and weighed along
with all the other evidence produced in the proceeding.
The inclusion of the first clause in subsection (e)
indicates that although a genetic testing exclusion can be
absolute, errors may occur in testing. Some courts have
imposed a rule that a party must first show the test is in
error before ordering another test. This imposes an
impossible burden because the only accurate method to show
that a test is in error is to repeat the testing. Without
this clause some litigants have argued that once an
exclusion is obtained it is absolute and no other test can
be ordered, even when the first test is shown to be wrong,
see Cable v. Anthou, 674 A.2d 732 (Pa. Super. 1996),
affirmed, 699 A.2d 722 (Pa. 1997); In re Paternity of
Bratcher, 551 N.E.2d 1160 (Ind. App. 1st Dist. 1990).
SECTION 632. JURY PROHIBITED. The court shall conduct
the final hearing without a jury.
SECTION 633. HEARINGS AND RECORDS: CONFIDENTIALITY. (a)
On request of a party, the court may close a proceeding
under this article for good cause shown. (b) A final order
in a proceeding under this article is available for public
inspection. Other papers and records are available only
with the consent of the parties or on order of the court
for good cause shown. Reporter's Notes Source: UPA (1973)
20.
SECTION 634. ORDER ON DEFAULT. The court shall issue an
order determining paternity of a man who: (1) is found by
the court to be the father of a child; and (2) after
service of process, is in default. Reporter's Notes
Source: 42 U.S.C. 666(a)(5)(H).
SECTION 635. FINAL ORDER REGARDING PARENTAGE. (a) The
court shall issue an order declaring whether a man alleged
or claiming to be the father is the parent of the child. (b)
An order determining parentage must state the name of the
child. (c) Except as otherwise provided in subsection (d),
the court may assess filing fees, reasonable attorney's
fees, genetic-testing fees, other costs, and necessary
travel and other reasonable expenses incurred in a
proceeding under this article. The court may award
attorney's fees, which may be paid directly to the
attorney, who may enforce the order in the attorney's own
name. (d) The court may not assess fees, costs, or
expenses against the support-enforcement agency of this
State or another State, except as provided by other law.
Reporter's Notes Sources: UIFSA Section 313; UPA (1973)
15, 16
SECTION 636. BINDING EFFECT OF ORDER. (a) Except as
otherwise provided in subsection (b), a determination of
parentage that satisfies the jurisdictional requirements
of [Section 201 of the Uniform Interstate Family Support
Act] is binding on all parties. (b) A child is not bound
by a determination or acknowledgment of parentage under
this [Act] unless: (1) the earlier determination was based
on genetic testing and that fact is declared in the
determination or is otherwise shown of record; or (2) the
child was represented in the previous proceeding by an
[attorney ad litem]. (c) In a proceeding to dissolve a
marriage or to order child support, the court is deemed to
have determined parentage of a child if the court is
acting under circumstances that satisfy the jurisdictional
requirements of [Section 201 of the Uniform Interstate
Family Support Act], and the court: (1) expressly
identifies a child as a "child of the marriage," "issue of
the marriage," or similar words indicating that the
husband is the father of the child; or (2) provides an
order for support of the child or awards custody of or
visitation with the child to the man. (d) A determination
of parentage made consistently with this [Act] is not
binding upon the support-enforcement agency or any other
state agency. (e) Subject to subsection (b), a
determination of parentage made under this [Act] is
binding in a subsequent proceeding, even if asserted by a
person who was not a party to the first proceeding.
Reporter's Notes This section codifies rules regarding the
effect of a final order determining parentage. A
considerable amount of litigation involves just exactly
who is bound and who is not bound by such orders.
Subsection (a) provides that, if the order is entered
under standards of personal jurisdiction of the Uniform
Interstate Family Support Act, the order is binding on all
parties to the proceeding. This solves the problem of an
order rendered without the appropriate jurisdiction, as
would be the case of a divorce based on status
jurisdiction in which the court lacked the requisite
personal jurisdiction over a nonresident party. Subsection
(b) partially resolves the question as to whether a child
is bound by the terms of the order. UPA (1973) required
the child to be made a party to a parentage proceeding,
and therefore would be bound. However, the 1973 Act did
not address whether a divorce decree had a the legal
impact on paternity. A majority of jurisdictions holds
that the child is not bound by the divorce decree because
the child was not a party to the proceeding. See, Nadine
E. Roddy, The Preclusive Effect of Paternity Findings in
Divorce Decrees, DIVORCE LITIGATION (1998). A minority of
states hold that the child is bound to the order and that
the child is in privity with the actions of the parents.
In its present formulation, adopts the majority rule and
which does not bind the child during minority unless the
parentage order is based on genetic testing, or if the
child was represented by an ad litem. Subsection (c)
resolves whether a divorce decree constitutes a finding of
paternity. This subsection provides that such a decree is
a determination of paternity if the decree states that the
child was born of the marriage or grants the husband
visitation, custody or orders support. This rule is the
majority rule in American jurisprudence. See Roddy, supra.
Subsection (d) provides that state agencies are not bound
by an earlier parentage order. This is the majority view;
most states hold that because the state agency was not a
party to the earlier proceeding, it should not be bound.
Roddy, supra. Some observers from the child support
enforcement community urged that the Act take the position
that agencies should be bound because the state's right to
sue is based on an assignment of rights from an applicant.
Therefore the state's interest is derivative of the
applicant's ability to sue. If the applicant is bound by
the earlier order, then the state should also be bound.
They argue further that valuable state resources should
not be spent relitigating an issue already decided.
Subsection (e) gives protection to third parties who may
claim benefit of an earlier determination of parentage.
ARTICLE 7 PARENTAGE BASED ON EQUITABLE ESTOPPEL
SECTION 701. COURT AUTHORIZED TO REFUSE GENETIC
TESTING. (a) On motion of the mother or the presumed
father, a court may deny genetic testing of the mother,
the child, and the presumed father if the court determines
that: (1) the conduct of the mother or the presumed father
creates an equitable estoppel; and (2) an order for
genetic testing may cause an inequitable result by
negating the father-child relationship between the child
and the presumed father. (b) In determining whether to
grant or deny genetic testing based on equitable estoppel,
the court shall consider the best interest of the child,
including the following factors: (1) the length of time
between the proceeding to contest his paternity and the
time that the presumed father was placed on notice that he
might not be the genetic father; (2) the length of time
during which the presumed father has assumed the role of
father of the child; (3) the facts surrounding the
presumed father's discovery of his possible nonpaternity;
(4) the nature of the father-child relationship; (5) the
age of the child; (6) the harm to the child which may
result if presumed paternity is successfully disproved;
(7) the extent to which the passage of time reduces the
chances of establishing the paternity of another man and a
child-support obligation in favor of the child; and (8)
other factors that may affect the equities arising from
the disruption of the father-child relationship between
the child and the presumed father or the chance of other
harm to the child. (c) In a proceeding involving the
application of this article, the child must be represented
by a guardian ad litem [who is an attorney]. (d) A denial
of genetic testing must be based on clear and convincing
evidence that the evidentiary factors listed in this
section sustain that determination.
SECTION 702. ORDER BASED ON EQUITABLE ESTOPPEL. If the
court denies genetic testing, it shall issue an order
determining that the presumed father is the father of the
child. Reporter's Notes See, Marilyn Ray Smith, Paternity
Litigation Involving Presumed Versus Putative Fathers:
Conflicting Rights and Results.
ARTICLE 8 CHILD OF ASSISTED REPRODUCTION
SECTION 801. HUSBAND'S PATERNITY OF CHILD RESULTING
FROM ASSISTED REPRODUCTION. If a husband consents to
assisted reproduction pursuant to Section 802, he is
deemed to be the father of any child resulting from: (1)
the artificial insemination of his wife; (2) providing his
sperm to fertilize a donor's eggs that are placed in the
uterus of his wife; or (3) the implanting of an embryo in
the uterus of his wife, whether the donated embryo is the
result of separate donations of sperm and eggs or the
donated embryo is created for the purpose of assisted
reproduction. Reporter's Notes Sources: UPA 5; USCACA
1, 2
SECTION 802. CONSENT TO ASSISTED REPRODUCTION. (a) Each
participant in assisted reproduction must consent to that
participation, including, as applicable: (1) a husband and
wife; (2) the donor of sperm if other than the husband;
[and] (3) the donor of eggs if other than the wife[; and
(4) a woman who intends to be the gestational mother on
behalf of the intended parents]. (b) The consent must: (1)
be in writing; and (2) be signed by the participant. (c)
Failure to comply with subsection (b) does not: (1)
preclude a finding that the husband is the father of a
child born to his wife if the wife and husband treat the
child as their child in all respects and jointly represent
their parenthood to others; or (2) confer rights or impose
duties on a donor as a mother or father of the child if
the donation of reproductive material was made under
circumstances demonstrating an intent that the assisted
reproduction would not impose parental responsibility upon
anyone other than the husband and wife.
SECTION 803. LIMITATION ON HUSBAND'S DISPUTE OF
PATERNITY. (a) The husband of a woman who, through
assisted reproduction, gives birth to a child during
marriage is deemed the father of the child unless: (1)
within two years after learning of the birth of the child
he commences a proceeding to contest his presumed
parentage; and (2) the court determines he did not consent
to the assisted reproduction. (b) The limitation of
subsection (a) applies to a marriage declared invalid
after the assisted reproduction. (c) A husband who does
not consent in writing to assisted reproduction by his
wife may challenge the presumption of paternity of the
resulting child subject to Section 605. Reporter's Notes
Source: USCACA 3
SECTION 804. PARENTAL STATUS OF DECEASED INDIVIDUAL. An
individual who dies before implantation of an embryo or
before a child is conceived from assisted reproduction
using the individual's eggs or sperm is not a parent of
the resulting child unless the decedent has consented in
writing to continue the donation posthumously. Reporter's
Notes Source: USCACA 4
SECTION 805. EFFECT OF DISSOLUTION OF MARRIAGE. If a
husband and wife dissolve their marriage before
implantation of an embryo or before a child is conceived
by use of the husband's sperm, his earlier consent to
assisted reproduction is void. Reporter's Notes This
section is entirely new, but is derived from the policy
stated in Section 804, supra. If there is to be no
liability for a child conceived after death, then there
should be no liability for a child conceived or implanted
after divorce. This Act does not attempt to resolve issues
as to control of frozen embryos following dissolution of
marriage. Those matters are left to other state laws,
usually in the context of settlement of divorce and
regulation of health care facilities.
SECTION 806. PARENTAL STATUS OF DONOR. (a) A donor of
sperm is not the father of a child conceived through
assisted reproduction if the mother is: (1) married and
her husband has consented to the assisted reproduction; or
(2) unmarried at the time of conception, unless the donor
and the mother of the child acknowledge the donor's
paternity pursuant to Article 3. (b) [Except as otherwise
provided in Article 9, a] [A] donor of eggs or embryos is
not a parent of a child borne by the donee.
[ARTICLE 9] [GESTATIONAL AGREEMENT]
Introductory Note The subject of gestational agreements
was last addressed by the Conference in 1989 with the
adoption of the Uniform Status of Children of Assisted
Conception Act (USCACA). That Act offers two alternatives
on the subject: to regulate such activities through a
judicial review process or to void such contracts. Only
two states have adopted either version of the Act;
Virginia chose to regulate such agreements, while North
Dakota opted to void them. The Drafting Committee
recognizes that there are strongly held differences on
this subject. Nonetheless, the Committee has concluded
that the advances of science and the wide use of such
reproductive agreements virtually demand that provisions
for judicial supervision of gestational agreements be
enacted. For this reason, Article 9 is included as an
option in the Act. However, the Committee includes this
article without a recommendation either for or against its
adoption. The Uniform Parentage Act, as revised, contains
too many important changes to jeopardize its passage
because of opposition to this article. If the inclusion of
Article 9 is so controversial in a state considering
adoption of this Act to cause a risk of failure, the
article may be omitted entirely. Childless couples may
choose modern science over traditional adoption in hopes
of having a child of their own genetic making. Voiding or
criminalizing gestational agreements will force
individuals to find friendly legal forums for the process,
which raises a host of legal issues. For example, a couple
returning to their home state with a child born as the
consequence of a gestational agreement entered into in a
state recognizing that agreement presents a full faith and
credit question if their home state has a statute
declaring gestational agreements to be void. One thing is
clear; a child born under these circumstances is surely
entitled to have its status clarified. In the opinion of
the Drafting Committee, entering into a gestational
agreement is a significant legal act that should be
reviewed by a court, just as an adoption is judicially
reviewed. This draft generally follows the 1989 Act but
departs in two important ways. First, unapproved
gestational agreements are void, thereby providing a
strong incentive for the participants to seek judicial
scrutiny. Second, persons who enter into unapproved
gestational agreements and later refuse to adopt the
resulting child may be liable for support of the child.
Assisted reproduction facilities and numerous other
entities are involved in the subject. Internet sites are
omnipresent promoting the activity. Currently states take
a variety of approaches to the issue: eleven states allow
such agreements by statutes or caselaw; six states void
such agreements by statute; eight states statutorily ban
compensation to the gestational mother; and two states
have judicially refused to recognize such agreements. See
Appendix to Article 9, infra.
[SECTION 901. GESTATIONAL AGREEMENT DEFINED.] [(a) A
gestational mother, her husband if she is married, a donor
or the donors, and an intended parent enter into a written
agreement providing that: (1) the gestational mother, her
husband if she is married, and the donors relinquish all
rights and duties as a parent of a child to be conceived
through assisted reproduction; and (2) the intended parent
becomes the parent of the child. (b) If the intended
parent is married, the spouse of the intended parent must
be a party to the gestational agreement.
[SECTION 902. GESTATIONAL AGREEMENT.] [(a) An intended
parent and the gestational mother may file a petition to
validate a gestational agreement if one of them is a
resident of this State. The gestational mother's husband,
if she is married, must join in the petition. A copy of
the agreement must be attached to the petition. The court
may name a [guardian ad litem] to represent the interests
of a child to be conceived by the gestational mother
through assisted reproduction and may appoint counsel to
represent the gestational mother. (b) The court shall hold
a hearing on the petition and, if the requirements of
subsection (c) are satisfied, may enter an order declaring
the intended parent to be the parent of a child conceived
through assisted reproduction pursuant to the agreement. (c)
The court may issue an order under subsection (b) only on
finding that: (1) the parties have submitted to
jurisdiction of the court in accordance with the
jurisdictional standards of this [act]; (2) medical
evidence shows that the intended mother is unable to bear
a child or is unable to do so without unreasonable risk to
physical or mental health to the unborn child, or to the
intended mother, including consideration of her age; (3)
the [relevant child-welfare agency] has made a home study
of the intended parent and the intended parent meets the
standards of fitness applicable to an adoptive parent; (4)
all parties have voluntarily entered into the agreement
and understand its terms; (5) the gestational mother has
had at least one pregnancy and delivery and her bearing
another child will not pose an unreasonable health risk to
the unborn child or to the physical or mental health of
the gestational mother; and (6) adequate provision has
been made for all reasonable health-care expense
associated with the gestational agreement until the birth
of the child, including responsibility for those expenses
if the agreement is terminated. (c) The court may close
all proceedings under this article. All records of the
proceedings are confidential and subject to inspection
only under the standards applicable to adoptions. At the
request of a party to the agreement, the court shall take
steps necessary to ensure that the identities of the
individuals are not disclosed. The ruling of the court to
validate or not validate a gestational agreement is within
the discretion of the court, subject only to showing an
abuse of discretion. (d) The court conducting the
proceedings has exclusive and continuing jurisdiction of
all matters arising out of the gestational agreement until
a child born to the gestational mother during the period
governed by the agreement attains the age of 180 days.]
[SECTION 903. TERMINATION OF GESTATIONAL AGREEMENT.]
[(a) After entry of an order under this article, but
before the gestational mother becomes pregnant through
assisted reproduction, the court for cause or the
gestational mother, her husband, or the intended parent
may terminate the gestational agreement by giving written
notice of termination to all other parties. (b) An
individual who terminates an agreement shall file notice
of the termination with the court. On receipt of the
notice, the court shall vacate the order entered under
this article. An individual who fails to notify the court
of the termination of the agreement is subject to
appropriate sanctions. (c) A gestational mother is not
liable to the intended parents for terminating an
agreement pursuant to this section.]
[SECTION 904. PARENTAGE UNDER VALIDATED GESTATIONAL
AGREEMENT. Upon birth of a child to a gestational mother,
the intended parent shall furnish to the facility in which
the birth takes place a certified copy of the order of the
court issued under Section 902. The facility shall notify
the [department of vital statistics] of the birth of the
child and request that agency: (1) to issue a birth
certificate naming the intended parent as the parent; and
(2) to seal the original birth certificate in the records
of the [ agency].]
[SECTION 905. GESTATIONAL AGREEMENT: MISCELLANEOUS
PROVISIONS.] [(a) A gestational agreement that is the
basis for an order under this article may provide for
payment of consideration. (b) A gestational agreement may
not limit the right of the gestational mother to make
decisions to safeguard her health or that of the embryo or
fetus. (c) After the entry of an order under t
