1. 7
Parenthood

2. Parties Most Interested in Parentage Determinations
The child
Knowing his or her parentage has many emotional, social, economic, medical, and legal advantages for a child.
The parents
Although being a parent triggers economic obligations it also brings with it the satisfactions of raising children.

3. Parties Most Interested in Parentage Determinations
The government
It's interest is primarily economic given the need to control the cost of public assistance.

4. Most Common Ways of Establishing Legal Parentage
Uniform Parentage Act
Designed to set standards for relationships between biological fathers and children that were independent of the parents' marital status
Makes it clear that a biological father is not the only man who can be legally recognized as a child's father

5. Most Common Ways of Establishing Legal Parentage
The mother-child relationships is established by:
The woman having given birth
An adjudication of maternity
An adoption

6. Most Common Ways of Establishing Legal Parentage
The mother-child relationships is established by:
An adjudication confirming the woman as a parent of a child born to a gestational mother if the agreement was validated or is enforceable under other law

7. Most Common Ways of Establishing Legal Parentage
The father-child relationship is established between a man and a child by:
An unrebutted presumption of paternity
An effective acknowledgment of paternity unless the acknowledgment has been rescinded or successfully challenged
An adjudication of paternity

8. Most Common Ways of Establishing Legal Parentage
The father-child relationship is established between a man and a child by:
An adoption
The man having consented to assisted reproduction by a woman which resulted in the birth of a child

9. Most Common Ways of Establishing Legal Parentage
The father-child relationship is established between a man and a child by:
An adjudication confirming the man as a parent of a child born to a gestational mother if the agreement was validated or enforceable under other law

10. Most Common Ways of Establishing Legal Parentage
The marital presumption
The presumption that when a woman gives birth to a child while married or within 300 days of termination of the marriage, her husband is presumed to be the child's father.

11. Most Common Ways of Establishing Legal Parentage
Acknowledgment of parentage
The parents voluntarily acknowledge parentage by completing an appropriate notarized acknowledgment, stipulation, or affidavit.

12. Most Common Ways of Establishing Legal Parentage
Adjudication of parentage
Usually a civil action commonly brought by a mother or a IV-D agency seeking child support in which the court determines parentage (typically paternity) of a child based on evidence presented
Adjudications by adoption
Adjudications involving parenting contracts/agreements

13. Most Common Ways of Establishing Legal Parentage
Adjudication of parentage
Usually a civil action commonly brought by a mother or a IV-D agency seeking child support in which the court determines parentage (typically paternity) of a child based on evidence presented
Adjudications based on equitable theories
Adjudications based on claims of biological parenthood

14. Threshold Issues in Paternity Actions
Mothers, fathers, and IV-D agencies are the common claimants.
Subject matter jurisdiction may be concurrent in multiple courts.
The court must have personal jurisdiction over the defendant.
Venue is usually proper where the child resides.

15. Threshold Issues in Paternity Actions
Statutes of limitation for bringing paternity actions vary by state and federal law.
The burden of proving paternity is on the petitioner and the standard of proof is usually by a preponderance of the evidence.

16. Threshold Issues in Paternity Actions
Paternity judgments are binding on the parties but not necessarily on the child.
DNA testing is evidence but is not necessarily determinative.
See Case 7.1 A.J. v. I.J. (2002) on pages
A.J. v. I.J., 2002 WI App 307, 259 Wis. 2d 120, 655 N.W.2d 195 (2002)

17. Basic Process for Adjudicating Paternity
Complaint drafted
Care and Custody Disclosure Form prepared
If receiving public assistance or otherwise unable to pay, Affidavit of Indigency completed by plaintiff
Plaintiff files the above and the court assigns a docket number

18. Basic Process for Adjudicating Paternity
Summons completed and served
Defendant answers the complaint admitting or denying paternity
A default judgment may be entered if defendant fails to respond.
Financial statements filed
Motions for temporary orders relating to the child may be filed and heard

19. Basic Process for Adjudicating Paternity
If paternity is disputed, genetic testing may be ordered.
Discovery completed
Customary pretrial steps are completed.
Trial is held.
Case is dismissed or judgment entered

20. Basic Process for Adjudicating Paternity
Disestablishment of paternity refers to the situation in which a court issues an order vacating an earlier paternity judgment or acknowledgment of paternity based on evidence the man is not the child's father, in effect disestablishing a previously existing father-child relationship.

21. How Is Paternity Disestablished?
The states have taken 3 positions on this issue:
A number of states have determined by statute or case law that, in the interest of fairness, a father who has been defrauded should be permitted to seek an order vacating an earlier paternity judgment.

22. How Is Paternity Disestablished?
The states have taken 3 positions on this issue:
Some states have expressly not permitted disestablishment petitions viewing the child rather than the father as the victim.
The remaining states weigh the relative benefits of knowledge of the truth against disruption in the child's life.

23. Paternity Fraud
Paternity fraud is a fraud in which a mother intentionally misleads a man into believing he is the father of a child to whom he is genetically unrelated.
Some examples:
The mother may have been raped and not want contact with the father.

24. Paternity Fraud Some examples:
There may be a history of abuse and she fears for the safety of herself and the child.
She may be married and not want to jeopardize her marriage.
She may lie because she has to identify a father in order to receive public assistance.

25. Assisted Reproductive Technology (ART)
ART refers to treatments or procedures designed to make parenthood possible for persons with fertility problems or individuals who are otherwise unable or personally unwilling to reproduce.

26. Assisted Reproductive Technology (ART)
Some of the more common methods include the following:
Artificial insemination
Involves insertion of the sperm of a donor into a female's reproductive organs by a means other than sexual intercourse

27. Assisted Reproductive Technology (ART)
Some of the more common methods include the following:
Cryopreservation
The freezing of gametes (eggs and sperm) or embryos to preserve them for use at a later date

28. What is Assisted Reproductive Technology (ART)?
Some of the more common methods include the following:
Embryo adoption
Two or more embryo donors give an embryo to a recipient with the intention that the recipient become pregnant and subsequently adopt the resulting child post birth

29. What is Assisted Reproductive Technology (ART)?
Some of the more common methods include the following:
In vitro fertilization (IVF)
The fertilization of an egg by sperm outside of the womb with the intention that the resulting zygote be available for implantation, cryopreservation, donation, or research

30. What is Assisted Reproductive Technology (ART)?
Some of the more common methods include the following:
Posthumous reproduction
Reproduction that occurs after the death of one or both of the gamete contributors

31. Assisted Reproductive Technology (ART)
Some of the more common methods include the following:
Surrogacy
In a surrogacy arrangement, a woman agrees to conceive a child through natural or artificial insemination or to implantation of an embryo and to relinquish her parental rights to the resulting child post birth.
The surrogate mother may or may not be genetically related to the child.

32. How Have Legislatures and Courts Addressed Surrogacy Arrangements?
Surrogacy law is unsettled and some states have no controlling statutory or case law.
Some states ban surrogacy agreements entirely and others regulate them to varying degrees.

33. How Have Legislatures and Courts Addressed Surrogacy Arrangements?
When disputes about parentage arise in the surrogacy context, the courts generally apply one of four standards
Genetic test
Individuals who contribute the child's genetic material should be the legal parents.

34. How Have Legislatures and Courts Addressed Surrogacy Arrangements?
When disputes about parentage arise in the surrogacy context, the courts generally apply one of four standards
Gestational test
The woman who carries and gives birth to a child should be the child's legal mother.

35. How Have Legislatures and Courts Addressed Surrogacy Arrangements?
When disputes about parentage arise in the surrogacy context, the courts generally apply one of four standards
Best interests of the child test
The legal parents should be the persons best able to meet the child's needs.

36. How Have Legislatures and Courts Addressed Surrogacy Arrangements?
When disputes about parentage arise in the surrogacy context, the courts generally apply one of four standards
Intent test
The legal parents should be the persons who put the procreative process in motion with the intention of being the child's parents.

37. How Have Legislatures and Courts Addressed Cases Involving Cryopreserved Embryos?
The courts will increasingly be called upon to address these cases, as there are already hundreds of thousands of unused embryos in cryopreservation.
The unused embryos may be stored for use at a later date, donation, research, or ultimately destruction.

38. There are two contexts in which this topic is most likely to arise
How Have Legislatures and Courts Addressed Cases Involving Cryopreserved Embryos?
There are two contexts in which this topic is most likely to arise
Disposition of frozen embryos upon divorce
Posthumously conceived children

39. How Do the Legislatures and Courts Address the Disposition of Frozen Embryos Upon Divorce?
A limited number of states have enacted legislation relating to the use, storage, and disposition of preserved embryos.

40. The courts have applied five approaches when addressing this topic
How Do the Legislatures and Courts Address the Disposition of Frozen Embryos Upon Divorce?
The courts have applied five approaches when addressing this topic
In the absence of an agreement, the majority favor the party seeking to avoid forced parenthood
Enforce the agreement

41. The courts have applied five approaches when addressing this topic
How Do the Legislatures and Courts Deal With the Disposition of Frozen Embryos Upon Divorce?
The courts have applied five approaches when addressing this topic
Enforce agreements but allow parties to change their minds up until implantation or destruction of the embryos
Enforce agreements but not for non-reproductive use unless permitted by state law

42. The courts have applied five approaches when addressing this topic
How Do the Legislatures and Courts Deal With the Disposition of Frozen Embryos Upon Divorce?
The courts have applied five approaches when addressing this topic
Refuse to enforce agreements based on state law, public policy, or other considerations

43. How Do the Legislatures and Courts Deal with Cases Involving Posthumous Reproduction?
Thus far, most disputes involving posthumous reproduction arise in connection with:
Probate matters
Several states identify the intestate inheritance rights of posthumously conceived children by statute.

44. How Do the Legislatures and Courts Deal with Cases Involving Posthumous Reproduction?
Thus far, most disputes involving posthumous reproduction arise in connection with:
Probate matters
Some provide, along with other conditions, that the intended parents and treating physician must have signed an agreement regarding disposition of cryopreserved eggs, sperm, and embryos in the event of the death of one or both of the spouses.

45. How Do the Legislatures and Courts Deal with Cases Involving Posthumous Reproduction?
Thus far, most disputes involving posthumous reproduction arise in connection with:
Claims for Social Security Survivor Benefits
Posthumously conceived children may be eligible for Social Security Survivor benefits if the child is entitled to inherit under the intestacy law in the state where the decedent was domiciled at death.

46. How Do the Legislatures and Courts Deal with Cases Involving Children Born to Same-Sex Couples through ART?
Initially, the courts generally determined that only the birth parent was a legal parent to a child born to a lesbian couple that had a child together through artificial insemination.

47. How Do the Legislatures and Courts Deal with Cases Involving Children Born to Same-Sex Couples through ART?
However, there is an increasing trend toward recognizing parental rights and responsibilities of same-sex partners in some circumstances
The co-parent participated in the decision to have a child.
The co-parent lived with the child since birth.

48. How Do the Legislatures and Courts Deal with Cases Involving Children Born to Same-Sex Couples through ART?
However, there is an increasing trend toward recognizing parental rights and responsibilities of same-sex partners in some circumstances
The co-parent had an agreement with the child's legal parent to share parental rights and responsibilities.
The co-parent held himself out to others as the child's parent.

49. How Do the Legislatures and Courts Deal with Cases Involving Children Born to Same-Sex Couples through ART?
However, there is an increasing trend toward recognizing parental rights and responsibilities of same-sex partners in some circumstances
Recognizing the co-parent as a legal parent will be in the child's best interest.

50. The Paralegal's Role in Cases Involving Determinations of Parentage
The paralegal's role is determined by:
The extent to which the firm handles cases involving parentage determinations
The prevailing law in the jurisdiction where the paralegal is employed

51. The Paralegal's Role in Cases Involving Determinations of Parentage
The tasks most commonly performed include the following:
Locating controlling statutes and case law
Researching related jurisdictional issues

52. The Paralegal's Role in Cases Involving Determinations of Parentage
The tasks most commonly performed include the following:
Gathering information in preparation for drafting pleadings, motions, discovery requests, etc.
Maintaining a list of reputable DNA test banks and arranging for testing when directed

53. The Paralegal's Role in Cases Involving Determinations of Parentage
The tasks most commonly performed include the following:
Drafting agreements such as surrogacy agreements
Drafting affidavits, exhibits, memoranda, correspondence, etc. as assigned