Saturday, December 8, 2018
Jeffrey A. Parness has posted to SSRN his paper Faithful Parents: Choice of Childcare Parentage Laws, Mercer Law Review (forthcoming 2019). Here is the abstract:
In July 2017, the National Conference of Commissioners on Uniform State Laws (NCCUSL) approved and recommended for enactment in all U.S. states a new Uniform Parentage Act (2017 UPA). This act follows the 1973 and 2000 UPAs which have been widely adopted. While all three UPAs recognize forms of childcare parentage beyond biological ties (in and outside of marital births) and formal adoptions, the 2017 UPA is quite expansive in its provisions on such forms, including de facto parentage, voluntary acknowledgment parentage, and intended parentage of children born of assisted reproduction. These expanded forms of childcare parentage, relevant to child custody, visitation and support, are chiefly dependent on childcare agreements and/or parental-like acts rather than on blood ties or formal adoptions.
This article focuses on the choice of law problems arising with these expanded forms of childcare parentage. First, it reviews the UPA sections on choice of law and on the expansive forms of childcare parentage. Second, it demonstrates the challenging choice of law issues when childcare parentage disputes arise only after interstate moves, but depend upon premove behavior which is not precise (like giving birth) or which occurs at no particular time (like marriage to a birth mother at the time of birth). Third, the article posits that notwithstanding the UPA declarations that forum laws apply when adjudicating parentage, state courts should expressly recognize that sometimes forum laws include their own choice of law rules. Such a recognition should be also included in an amended 2017 UPA. This approach follows precedents on choosing between conflicting state laws in and outside of family law settings. It also honors reasonable expectations, lessens forum shopping, and avoids Full Faith and Credit difficulties where there are parentage-related “public acts,” as with voluntary parentage acknowledgments.
Finally, the article further posits that the 2017 UPA and state courts should establish some special choice of law rules. Special rules should operate, for example, when courts hear challenges to voluntary parentage acknowledgments (VAPs). Here, the VAP challenge laws of the state where the VAP was filed should be applied.