DISESTABLISHING PATERNITY WORKSHOP

DISESTABLISHINGPATERNITY WORKSHOP PATRICK QUINN ESQ. ALLEGHENY COUNTY, PA. ERICSA 50th Annual Training Conference & Exposition ▪ May 19 – 23 ▪ Hilton Orlando Lake Buena Vista, Florida ERICSA 50 CELEBRATES YEARS OF SERVING FAMILIES: THE MAGIC IS STILL ALIVE ERICSA ERICSA ERICSA ERICSA ERICSA

PRESUMPTION OF PATERNITY VARIES FROM STATE BY STATE Some states by case law. Some states by statute. Constantly evolving law…

The basis of the presumption of paternity is to: • Preserve the marriage and intact family • Protect children from • suffering the emotional trauma • of discovering that the husband • is not the father. and

Genetic test results - are they admissible to rebut or disestablish paternity if the presumption of paternity is applicable? Presumption applies against the mother & father (wife & husband) until a party attempts to disestablish paternity.

Two part test: 1. Does the presumption ofpaternity apply (within a marriage & an intact family)? IF YES: Has itbeenrebutted(non-access or impotency) or is it inapplicable (no longer intact family) 2. If presumption has been rebutted or is inapplicable, does paternity by estoppel apply? Paternity by Estopple: The legal determination that a person’s (i.e. mother/father/putative father) prior conduct precludes that person from denying, disestablishing, or seeking support from a third party for the child regardless of genetic test results.

Further Analysis Evidence of fraud. must be considered and may alter the application of paternity by estoppel. • The father must show he would not have held the • child out as his own child if it were not for the • mother's fraudulent conduct. The courts have refused to apply estoppel because a mother's extramarital affair and subsequent concealment of that affair rose to the level of fraud. • If a father later discovers he is not the biological father and wants • to avoid the strict application of paternity by estoppel, the father • must prove fraud and immediately cease a parental relationship • with the child.

Continued Developments in Case Law… …have not altered these traditional paternity doctrines, but may be a factor in a paternity disestablishment proceeding. • A person who relied on a misrepresentation of paternity should not be permitted to suffer harm because of the estoppel doctrine. • A person must provide the required proof to avoid the application of estoppel. • The person must then • prove that the estoppel of paternity • doctrine does not apply because • either there was never a parental • relationship with the child and/or • the mother committed fraud in • establishing paternity.

PARTIES to disestablishment action in marriage presumption cases: • HUSBAND/ • PRESUMED FATHER • MOTHER/ • WIFE • PUTATIVE • FATHER ANY ONE OF THE THREE CAN CHALLENGE THE PRESUMPTION

Handling Cases when Parties Agree that the Husband is not the Father Mother v. the Husband: • The legal rationale behind the requirement that the • mother file a case against the husband is the • presumption of paternity. • Even though the mother and the husband agree that the • husband is not the father of Baby Doe, the presumption • of paternity usually needs to be addressed. • Ultimately, a judicial determination on the presumed • paternity will be made based upon the specific facts • of the case.

Mother v. the Husband: (cont.) • Because the mother and the husband agree that the husband is not the father of Baby Doe, there would likely be a determination by the Court disestablishing the paternity of Baby Doe by declaring that the presumption of paternity does not apply. • Consideration of best interest of the child? • The Court may render a decision based upon the testimony or may order genetic paternity tests.

GENETIC TESTING… PIQ -03-01 (April 28, 2003) • Services NOT required, however, • IV-D funding is available if IV-D agency • provides services in challenge. • Federal funding available for • genetic test costs in IV-D cases. STATE LAW OR LOCAL PROCEDURE DETERMINES WHO PAYS

FEDERAL LAW PERMITS STATES TO “CHOOSE” IF PATERNITY ACKNOWLEGDMENT CONSTITUTES: • Rebuttable Presumption • of paternity B. Conclusive evidence of paternity 42 U.S.C. §666(a)(5)(E) (45 CFR 302.70(a)5)

REVOCATION OF THE Affidavit of Parentage or Acknowledgement of Paternity • Federal law requires all states • to have law which permits: 1. Recession within 60 days. 2. Beyond 60 days challenge must be on basis of fraud, duress or material mistake of fact. • Process controlled by State law • IV-D funding for genetic tests available in IV-D cases. 42 U.S.C. § 466 (a)(5)(D)

Rescission of the Voluntary Acknowledgment of Paternity • Either parent who signs a voluntary Acknowledgment of Paternity (PA/CS 611) form can rescind the voluntary acknowledgment within the earlier of the following: • Sixty days of the original signing; or: • The date of an administrative or judicial proceeding relating to the child, including a conference or a similar proceeding to establish a support order to which the parent is a party (42 U.S.C § 666(a)(5)(D)(ii)).

JUDICIAL RECISSION Court can overturn based only on: • FRAUD • DURESS • MISTAKE OF FACT  DEFINED BY CASE LAW IN STATES.  PROCESS DEFINED BY STATE LAW.

Once paternity is established, such determinations are entitled to full faith and credit by the courts (42 U.S.C. § 666(a)(5)(C)(iv)) (42 U.S.C. § 666(a)(11) 45 CFR 302.70(a)(11)) é Challenge to paternity must occur in state where determination is made. é Query: What if all parties have moved from state? é Many states now addressing by specific statute.

COMPETING FATHERS ACKNOWLEDGMENT SIGNED BY BIOLOGICAL FATHER WHEN A LEGAL FATHER EXISTS. STATE LAW AND PROCESS CONTROLS

SETTING ASIDE COURT ORDERED PATERNITY ESTABLISHMENT W MUST ADDRESS PREVIOUS COURT ORDER W VACATE? W MODIFY? INDIVIDUAL STATES APPROACH 4STATUTE and/or4CASE LAW

STATE REACTIONS/ TRENDS IN PATERNITY DISESTABLISHMENT • Hot topic in many states. • As outlined in OCSE Publication Policy Interpretation Question – Federal Government acknowledges that paternity disestablishment is a state issue (PIQ-03-01) • States widely vary in policy and approach. Some driven by statute others by case law many states have draft legislation addressing this issue

Examples of some state approaches…

TIME FRAMES: CONTROLLED BY STATE LAW • CAN BE SPECIFIC TIME FRAME • (ex. within two years of birth) • CAN BE SPECIFIC REASON • (ex. fraud, duress)

Estoppel The court may find that a putative father is not permitted to contest paternity and/or request genetic testing because of his prior behavior (estoppel issues) or that a paternity action should not proceed because a mother, who was married at the time of the child's birth, has filed against someone other than her husband (presumption of paternity). If estoppel or presumption of paternity is raised by one of the parties or the court, the court may postpone genetic testing until after a hearing is held to resolve the issue. The court may decide that paternity was previously established and there is no right to genetic testing; dismiss the action after finding the action inappropriate; or permit the genetic testing to be performed.

Estoppelprevents a person from asserting a claim or right that contradicts what he/she has, said or done before or what has been legally established as true. There are two types of estoppel: · Collateral estoppelprevents a repeated legal action for an issue that was already decided in a prior proceeding; for example, a putative father appears at a conference and does not sign an acknowledgment, but he was the petitioner in a custody action involving the child and asserted that he was the father of the child during that action. ·Equitable estoppelprevents a person from challenging a status he/she previously accepted; for example, a putative father appears at a conference and does not sign an acknowledgment, but he has openly held the child out as his own, welcomed the child into his home, and provided support for the child during the child's lifetime.

Default Order (42 U.S.C. §666(a)(5)(H)) (45 CFR 302.70(a)(5)(viii)) (45 CFR 303.5(f)) If at any point in the establishment of paternity process following service, the putative father fails to appear for a conference, hearing, or genetic testing, the court may: · Enter an Order of Court finding the putative father to be the father of the child and enter a temporary support order; or ·  Refer the matter to a conference for the establishment of support.

EVIDENCE: BIG QUESTION:  Are Genetic Tests admissible to disestablish paternity? ANCILLARY QUESTION: BURDEN OF PROOF:  Preponderance of evidence?  Clear and convincing?

ADDRESSING the ISSUES in COURT ORDERS • ARREARS • PAYMENT RECOVERY • VISITATION • OTHER? ?

Q U E S T I O N S ?

DISESTABLISHING PATERNITY WORKSHOP