Parentage — Family Law & Trusts and Estates Practice

In Franklin, Dana never marries the birth mother. But Dana moves in when the baby is born, is introduced as dad to the pediatrician and the daycare, and raises the child for three years before the couple splits. No marriage. No adoption. No paperwork at all. Is Dana a legal parent?

Yes. A presumed parent, with the right to seek custody and the duty to pay support. Which tells you the shape of this topic. Parentage is the gateway to almost everything else in family law, and there is no single way through it. Several independent doors lead into the same room, and biology is only one.

Here is the route. First the routes into parentage. Then the two presumptions, marriage and holding out. Then the acknowledgment, and why a late DNA test rarely undoes one. Then de facto parents, assisted reproduction and surrogacy. And finally child support, the guidelines, and the rules on changing an order once it exists.

Start with why parentage matters. A legal parent owes a duty of support, can seek custody and visitation, passes citizenship and inheritance down, and must be notified before the child can be adopted. Someone who is not a legal parent generally has none of that.

And § 201 of the Uniform Parentage Act lists the independent routes in. Giving birth. Adoption. An unrebutted presumption. A valid acknowledgment of parentage. A court adjudication after genetic testing. Consenting to assisted reproduction intending to be a parent. Being an intended parent under a surrogacy agreement. Or being adjudicated a de facto parent.

Two ideas to carry through all of it. Legal parentage does not always track biology. And under the modern Act it is not limited by gender. The presumption that once protected a husband now protects any spouse.

The oldest and strongest tool is the marital presumption. When a married person gives birth, the law presumes the spouse is the other parent, so the child starts life with two legal parents and nobody litigates biology. It is a legal shortcut, not a claim about DNA. It applies even when everyone knows the spouse is not the biological parent.

Under § 204 it arises when the child is born during the marriage, or within 300 days after it ends. It even reaches an attempted but invalid marriage. And the Supreme Court has confirmed that a state offering this presumption to opposite-sex spouses must extend it to same-sex spouses, including both names on the birth certificate. The Obergefell and Pavan line of cases.

The second presumption protects people who never married. Holding out. An individual lives in the same household with the child for the first two years of the child's life. And openly holds the child out as their own. That person is a presumed parent.

Which is Dana. Moved in at birth, introduced as dad to the pediatrician and the daycare, raised the child for three years. Holding out rewards conduct, not paperwork.

And a presumption is hard to dislodge. A challenge usually must be brought early, often before the child's second birthday. And a court can refuse to order genetic testing when disturbing a settled parent-child relationship would not serve the child.

When an unmarried person gives birth, the fastest route to a second parent is a voluntary acknowledgment of parentage. The parents sign a form, usually at the hospital, and once it takes effect it carries the force of a court judgment. No lawsuit. No genetic test. Federal law requires every state to offer it.

The catch is that it is hard to take back. Under 42 U.S.C. § 666(a)(5), a signer may cancel for any reason within the earlier of 60 days, or the first proceeding about the child. After that, it can be attacked only by proving fraud, duress, or a material mistake of fact.

So a later DNA test showing the signer is not the biological parent is, by itself, usually not enough to undo it. Which is the theme of this whole half. Biology is not the whole story.

Genetic testing proves or disproves a biological link, and any party can usually ask for it. But courts routinely refuse to order testing, or to act on the results, where a child already has a settled legal parent. A person who acted as a parent for years may be estopped from demanding a test to escape support.

It also explains why an unwed biological father is not automatically a full legal parent. He must promptly grasp the opportunity to develop a real relationship with the child. Biology plus a developed relationship. A mere genetic link, without more, can be outweighed.

Some adults raise a child as a parent without giving birth, adopting, or fitting a presumption. A step-parent, a partner from before marriage was available, a relative who takes a child in. The law can recognize that adult as a de facto parent, with the full rights and duties of any parent.

Because it overrides an existing legal parent's wishes, courts guard the doctrine carefully and demand clear and convincing evidence. § 609 sets a seven-part test. Lived with the child as a regular household member for a significant period. Provided consistent caretaking. Took on full and permanent parental responsibilities without expecting pay. Held the child out as their own.

Then three more. Formed a bonded, dependent relationship that is parental in nature. An existing parent fostered or supported that relationship. And continuing it is in the child's best interest.

Notice that sixth one. An existing parent must have fostered the bond, so a babysitter or a helpful grandparent does not become a de facto parent against the legal parent's wishes. In Columbia, Sam moves in with a partner who has a toddler and, with full encouragement, does the school runs and bedtime for six years.

Two developments round out the picture. A growing minority of states now let a court recognize more than two legal parents where limiting the child to two would harm the child. And since same-sex marriage became a constitutional right, every rule that once turned on husband applies to any spouse.

Assisted reproduction separates the genetic contributors from the people who intend to raise the child, and the law follows intent, not genetics. Two rules do most of the work, in §§ 702 and 703.

First, a donor is not a parent. Someone who provides sperm or eggs for someone else's assisted reproduction has no parental rights and owes no support. A sperm donor sued years later. Parent, or not? Not a parent. Second, the person who consents intending to be a parent is a parent, genetically related or not.

Two traps hide here. Known donors, where the rule assumes the donor is stepping aside. Suppose a known donor and the birth parent instead agree that he will act as a parent, or he holds the child out as his own. He may be found a parent after all. Intent controls.

And posthumous conception. A child conceived from a deceased person's frozen gametes. Whether that child counts as the deceased's legal child turns on state intestacy law, and on whether the deceased consented in a record to becoming a parent after death.

Surrogacy splits on one line. Is the surrogate genetically related to the child? In gestational surrogacy the embryo comes from other people's eggs and sperm, so she has no genetic tie. These are the modern norm and, done correctly, enforceable, with the intended parents as the legal parents.

In genetic surrogacy, the older traditional kind, the surrogate's own egg is used, so she is the biological mother. The law treats those far more cautiously. A court must validate the agreement before conception, and the surrogate gets a window to change her mind.

Now the other half. Every parent owes a duty to support their minor child, and that duty is the child's right, not the other parent's. Which is why parents cannot bargain it away. A private you keep the house, I will owe nothing deal does not bind the court.

To make awards predictable, 42 U.S.C. § 667 requires every state to adopt numeric guidelines and apply them as a rebuttable presumption. The guideline number is presumed correct, and a judge who departs from it must put the reasons in a specific written finding.

States pick one of three formulas. The dominant one, used by roughly forty states, is income shares. The child should receive the same share of parental income they would have had if the parents lived together. A minority use percentage of income, applied to the paying parent's income alone. And a few use the Melson formula, which sets aside a self-support reserve first.

Work an income-shares number. Parent A earns $6,000 a month, Parent B earns $2,000, so combined income is $8,000 and A supplies 75%. Say the schedule sets the obligation for one child at $1,200. A's share is $900, B's is $300. The child lives mainly with B, so A pays $900.

How long does it last? Normally until the child reaches majority, usually 18, or is emancipated by marrying, joining the military or becoming self-supporting. Many states extend it through high-school graduation, and some allow support for college or for an adult child with disabilities.

Either parent can ask to change the amount, but only by showing a substantial change in circumstances. A large income change, a job loss, a new custody arrangement. But not every drop qualifies. A parent who is voluntarily unemployed or underemployed generally gets no reduction, because the court imputes income from earning capacity.

And now the rule that decides the most questions. Modification is prospective only. Under the federal Bradley Amendment, each installment becomes a fixed judgment the moment it comes due, and cannot be retroactively reduced or forgiven. Not even for months a parent was unemployed or incarcerated. So if you cannot pay, move to modify immediately.

Enforcement is aggressive. Automatic income withholding straight from wages, the default everywhere. Civil and criminal contempt for willful non-payment. Interception of tax refunds and liens on property. Suspension of driver's, professional and recreational licenses. Denial of a passport once arrears exceed $2,500.

Finally, families move. Every state has enacted the Uniform Interstate Family Support Act, which enforces a one-order rule. Only one support order can be in effect at a time. The issuing state keeps exclusive jurisdiction to modify for as long as a party or the child still lives there.

A word on authorities. This episode named one line of cases, Obergefell and Pavan, and only because a constitutional holding sits underneath the marital presumption. Everything else here comes from the Uniform Parentage Act and two federal child-support statutes. The exam asks who the legal parent is and what follows, not who the parties were.

If you keep only three, keep these. § 201, the independent routes in, because parentage does not track biology. The 60-day window on an acknowledgment, and its fraud, duress or material-mistake exception, because a late DNA test rarely undoes one. And the Bradley Amendment, because arrears never shrink.

Now the traps, straight from the examiners' favorites. One. Support and visitation are independent. A parent cannot stop paying because visitation is denied, and the other parent cannot deny visitation because support is unpaid. Two. Parents cannot bargain away child support, because it belongs to the child. A private deal does not bind the court.

Three. An acknowledgment or a presumption is not automatically undone by a late DNA test. After the deadlines, only fraud, duress or a material mistake reopens parentage. Four. Arrears never shrink retroactively, so I lost my job is a reason to modify going forward, not to erase past-due support.

And five. A sperm or egg donor owes no support and has no rights. Unless the parties' agreement and conduct show the donor was meant to be a parent. One more worth holding. For a same-sex married couple, apply the ordinary presumptions exactly as you would for anyone else.

Time for the quick check, and this one comes straight from the BARGO question bank. Three years ago an unmarried man signed and filed a voluntary acknowledgment of parentage for his partner's newborn, and a monthly support order was entered against him. After a bitter breakup he quietly took an at-home DNA test showing he is not the child's biological father.

He moves to set aside the acknowledgment and end his support, relying solely on that result. He alleges no trickery or pressure, and the rescission window closed long ago. Is that enough? Option one. Yes, because genetic evidence disproving biology always defeats an acknowledgment. Option two. No, because an acknowledgment can never be challenged once it takes effect. Option three. No, because after the window it yields only to fraud, duress or material mistake. Pause here if you want a moment.

The answer is option three. Once the rescission window closes, an acknowledgment yields only to fraud, duress or a material mistake of fact. A later DNA test, standing alone, usually is not enough. He alleges none of those, so the acknowledgment and the support order built on it both stand.

Option one is the trap. Genetic proof feels decisive, but the law deliberately makes an acknowledgment sticky to protect the child's settled parentage. Option two overcorrects. It is not immune forever. It stays vulnerable on those three narrow grounds. There are thirty plus more questions on this topic alone, each with every option explained like that.

Five things to take away. One. Parentage has many independent doors, and biology is only one of them. Two. Two presumptions do most of the work. Marriage, including 300 days after it ends, and holding out for the child's first two years. Three. An acknowledgment is a judgment. 60 days to cancel freely, then only fraud, duress or material mistake.

Four. In assisted reproduction, intent controls. A donor is not a parent, and the person who consents intending to parent is one, genetically related or not. Five. On support, guidelines are a rebuttable presumption, deviations need written findings, and modification is prospective only. Arrears never shrink.

Which is why Dana is a legal parent with no marriage, no adoption and no paperwork. Dana moved in, held the child out, and stayed. The law counted the conduct. Next time, Termination of Parental Rights, Guardianship and Adoption.

Practice this topic with more than 2,900 exam-style questions, free to start, at nextgenbargo.com. This episode is for education and exam preparation only, not legal advice, and we are not affiliated with or endorsed by the NCBE or any bar examining authority.