Monday, January 18, 2016

Parness: "Challenges in Handling Imprecise Parentage Matters"

Jeffrey A. Parness (Northern Illinois University - College of Law) has posted Challenges in Handling Imprecise Parentage Matters28 Journal of the American Academy of Matrimonial Lawyers 401 (2015) on SSRN.   Here is the abstract:

Legal parentage under American state laws is significantly and rapidly evolving. And, it is increasingly imprecise. No longer is legal parentage only defined at precise moments in time or for particular conduct, as by giving birth, having biological ties, marriage to the birth mother at time of conception or birth, name placement on a birth certificate, or formal adoption. Both men and women can now become legal parents, as through de facto parenthood or equitable adoption, where neither the time of the relevant conduct nor the conduct prompting parentage can be precisely determined. Because legal parentage increasingly depends upon fluid and imprecise doctrines, lawyers and judges must be vigilant in handling legal disputes implicating parentage.

Together with the growing phenomenon of imprecise legal parentage, lawyers and judges are also challenged because an established legal parentage in one setting often is inapplicable in other settings. Parentage under law is frequently contextual. Thus, a father for child support purposes often is not a father for childcare purposes.

Further, lawyers and judges are now challenged both in proceedings first establishing and later overriding legal parentage. Legal parentage increasingly can be overridden via imprecise norms, including standards on waivers, forfeitures, rebuttals, and rescissions. The numbers of disestablished parents are growing due to reliable and inexpensive genetic testing, births during marriage resulting from adultery, and greater use of assisted reproduction.

Moreover, lawyers and judges investigating both the establishment and disestablishment of legal parentage are challenged due to significant interstate variations. As one distinguished commentator observed: “The relative importance of biology, intent, contract, and parental function varies tremendously by jurisdiction and even by case, adding confusion and unpredictability to a determination of critical importance.” Because parents and their children are quite mobile, in resolving parentage disputes, choices increasingly must be made between competing and quite different imprecise American state parentage laws.

This article examines the challenges for lawyers and judges investigating parentage. First, it will survey varying American state imprecise parentage laws. Then, it will examine the investigative norms guiding parentage inquiries. In conclusion, it will review the possible results of failed inquiries and offer suggestions to lawyers and judges who must contend with an array of differing fluid, imprecise, and contextual American state parentage laws.

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