Choosing Among Imprecise American State Parentage Laws
Parness, Jeffrey A.
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Not too long ago American state laws chiefly designated parentage at precise moments in time. One became a parent upon giving birth; upon having one’s spouse give birth; upon formal adoption; upon completion of a birth certificate or a voluntary paternity acknowledgment; or upon a paternity case judgment. These parentage designations in one state would usually be respected by other states, even though certain parentage designations – as with a marital paternity presumption or a voluntary parentage acknowledgment – could later be voided, as through a rebuttal or recission occurring without a parental rights termination proceeding and at no precise moment in time. Today American state laws increasingly also allow for parentage designations to be based on conduct occurring at no precise moment in time, as with residing with and supporting a child, typically called de facto or presumed parenthood. Such designations are also sometimes voidable due to earlier conduct occurring at no precise moment in time. When conduct relevant to legal parentage occurs in one state and legal parentage is later to be initially determined in another state, the second state’s court frequently fails to respect the imprecise parentage laws of the state where the conduct occurred. Comparably, the second state’s court often fails to respect the first state’s norms on voiding legal parentage though the relevant conduct occurred there. While respect is not always due, applications by the second state’s court of its own parentage laws should not be automatic. Yet proposed uniform, as well as federal and state, statutes suggest this mandate. This paper urges that a second state’s court should explore in parentage cases whether there are conflicting, imprecise parentage laws and, if so, whether it should utilize its own choice of law rules to resolve any conflict. This may mean, as when choice of law rules compel an interest analysis, that the resolution of which state’s imprecise parentage law controls may vary depending upon context. For example, parentage law choices may differ in multistate child support and childcare cases where an alleged parent lives in the forum while the child and custodial parent live outside the forum.
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