Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Saturday, July 24, 2021

Parness: "The Constitutional Limits on Custodial and Support Parentage by Consent"

Jeffrey A. Parness (NIU) has recently posted to SSRN his paper The Constitutional Limits on Custodial and Support Parentage by Consent, 56 Idaho L. Rev. 422 (2020).  Here is the abstract:

Prompted by the National Conference of Commissioners on Uniform State Laws through its Uniform Parentage Acts, and by the American Law Institute through its Family Dissolution Principles and its Restatement Draft on Children and the Law, recently U.S. state legislators and judges have spurred a revolution in parentage laws. In particular, lawmakers have expanded parental custody opportunities and parental support obligations for those without biological (actual or presumed) or formal adoptive ties by recognizing ever-increasing forms of legal parentage by consent.

Lawmakers have revolutionized parentage in some startling ways, as by deeming women to be parents under written paternity laws (including laws on marital paternity presumptions and on voluntary paternity acknowledgements). Unfortunately, U.S. state lawmakers have not always acted in ways compatible with constitutional (federal and state) constraints.

This article is the first to review comprehensively the constitutional issues arising from the new state laws on parentage by consent, including residency/hold out parentage; spousal parentage; de facto parentage; voluntary acknowledgment parentage; and assisted reproduction parentage. These issues most often arise when forms of “presumed consent” are employed, meaning there is neither earlier actual nor apparent consent to justify impositions of shared (if not eliminated) child custody upon expecting or existing legal parents who then object, or to justify impositions of child support upon those then nonparents who then object. Presumed consent, unlike “common authority” in Fourth Amendment search cases, should not generally operate in parentage by consent settings. If it does operate, public awareness should be enhanced by education initiatives so that important Due Process interests are not lost without at least some prior notice of the revolutionary parentage laws sweeping across the United States.

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