In 1996, the Personal Responsibility and Work Opportunity Reconciliation Act was passed. It streamlined the legal process for paternity establishment and required a state form for voluntary paternity acknowledgement. Individuals who fail to cooperate with paternity establishment have their monthly assistance reduced by at least 25 percent.
In 2000, the National Conference of Commissioners of Uniform State Laws approved a new Uniform Parentage Act (UPA). Changes were subsequently made and the new act of 2002 provides a framework for establishing the parentage of children born to both married and unmarried couples. The Act reflects both federal requirements and state best practices in the paternity area.
The UPA conforms to the mandate in 42 U.S.C.S. § 666(a)(5)(A) requiring states to provide for parentage proceedings at any time before a child attains 18 years of age. Further, under the UPA, a parentage proceeding covers any and all disputes in parentage, whether in a paternity action, divorce, probate, or other legal proceeding.
The Uniform Parentage Act (2002) provides:
- A comprehensive scheme for establishing paternity through voluntary acknowledgement
- Standards and rules for genetic testing
- A process to establish paternity through adjudication.
Although all states have some sort of uniform parentage act, only seven states, Delaware, Texas, Washington, North Dakota, Utah, Oklahoma, and Wyoming, have enacted a version of the most recent law, although no state has enacted the law verbatim. Illinois and Maine were introducing the law in their legislatures in 2006.
Who is the Legal Mother?
Because of recent technology in the way a child can be conceived, it became apparent that new laws defining parentage were needed. A legal mother is one who carries a child to birth. But it can now also be one whose egg was fertilized, someone who has been adjudicated as such through adoption, or one under a gestational agreement. Under these last three instances, the woman who carried the child to birth would NOT be the legal mother.
Who is the Legal Father?
Under the Uniform Parentage Act of 2002, the father can be any of the following:
- The presumed father, one who was married to the birth mother at conception or lived with the child for the first two years of the child's life and treated the child as his.
- A man who acknowledged paternity
- A man who was adjudicated the father in a paternity action
- An adoptive father
- A man who consents to assisted reproduction
- An adjudicated father in a proceeding confirming a gestational agreement.
Acknowledgement of Paternity
A person identified as the child's father in paternity suits is called the "putative father."
The non-judicial acknowledgement of paternity proceeding under the UPA allows a putative father to make a knowing and intelligent acknowledgment of paternity that is the same as a judgment of paternity for purposes of enforcement. An acknowledgement in one state has full faith and credit for terms of enforcement in another state that has adopted the new uniform act.
The acknowledgment is effective as long as there is not another presumed, acknowledged or adjudicated father.
There is also a provision in the act for rescission of the acknowledgment if it is filed within two years of registration.
Registry for Putative and Unknown Fathers
The Uniform Parentage Act of 2002 provides for a registry for putative and unknown fathers that allows them to be notified if there is a proceeding for termination of parental rights or adoption. However once the child reaches the age of one, the registry has no effect.
Under the UPA, the court can order genetic testing without initiating paternity litigation. A reasonable probability of sexual contact between the putative father and the mother is sufficient. A putative father may also seek genetic testing to prove that he is not the father.
Standards for genetic testing are made part of the Uniform Parentage Act in article 5 as are standards for presumption of paternity. Under the UPA the measure is 99 percent probability based on appropriate calculations of the combined paternity index.
Under the act, the child, the mother, the father, a support agency, and adoption agency, a represented of a deceased or incapacitated party, or intended parent under a gestational agreement may bring an action to determine parentage.
A refusal to submit to genetic testing can result in an adjudication of parentage.
There are provisions in the Uniform Parentage Act that deal with assisted conception. When a couple consents to assisted conception, and the woman gives birth, they are the legal parents. The donor of the sperm or the egg can not be the legal parent under any circumstances.
A gestational agreement is one between a woman and a couple that obligates the woman to carry the child for the intended parents, often times referred to as a surrogate mother. The conception must be an assisted conception and the woman who gives birth is not the legal mother. If she is a married woman, her husband must consent to the agreement and he has no parental rights or legal obligations with respect to the child.
Gestational agreements are controlled under the act because they must be approved by the court. The court must verify the birth mother's qualifications to carry the child and the intended parents' qualifications to be parents. The procedure is similar to those for adoptions. The birth mother may be compensated, and she has the power to terminate the agreement.