1. Chapter 7:
Parenthood
12
Family Law for the Paralegal
2nd Edition
Wilson
Class Name
Instructor Name
Date, Semester

2. LEARNING OBJECTIVES
After this lecture, you should be able to:
7.1 Identify the three parties most interested in 12
parentage determinations.
Identify the most common ways in which legal
7.2 parentage is established.
Describe the basic process for adjudicating
7.3 paternity.
Class Name
Instructor Name
Date, Semester
Cont.

3. LEARNING OBJECTIVES
After this lecture, you should be able to:
7.4 Explain what paternity fraud is and how paternity 12
may be disestablished.
Identify various applications of assisted
7.5 reproductive technology.
Discuss some of the ways in which courts and legislatures are
7.6 addressing surrogacy arrangements, cryopreserved embryos,
posthumous conception, and the uses of assisted reproductive
technology by same-sex couples.
Class Name
Instructor Name
Date, Semester
Cont.

4. LEARNING OBJECTIVES
After this lecture, you should be able to:
7.7 Describe the role of the paralegal in cases 12
involving determination of parentage.
Class Name
Instructor Name
Date, Semester

5. Learning Objective
After this lecture, you should be able to:
Identify the three parties most
7.1 interested in parentage
determinations.

6. Who are the three parties most interested in
7.1 parentage determinations?
• The child: knowing his or her parentage has
many emotional, social, economic, medical,
and legal advantages for a child
• The parents: although being a parent triggers
economic obligations it also brings with it the
satisfactions of raising children
• The government: its interest is primarily
economic given the need to control the cost of
public assistance
6

7. Learning Objective
After this lecture, you should be able to:
Identify the most common ways
7.2 in which legal parentage is
established.

8. What are the most common ways in which
legal parentage is established?
• The marital presumption: the presumption that when
a woman gives birth to a child while married or
within 300 days of termination of the marriage, her
husband is presumed to be the child’s father
• Acknowledgment of parentage: the parents
voluntarily acknowledge parentage by completing
an appropriate notarized acknowledgment,
stipulation, or affidavit
• Adjudication of parentage: usually a civil action
commonly brought by a mother or a IV-D agency
seeking child support in which the court determines
parentage (typically paternity) of a child based on
evidence presented
8

9. Learning Objective
After this lecture, you should be able to:
Describe the basic process for
7.3 adjudicating paternity.

10. What are some of the threshold
7.3 issues in paternity actions?
• Mothers, fathers, and IV-D agencies are the common claimants
• Subject matter jurisdiction may be concurrent in multiple courts
• The court must have personal jurisdiction over the defendant
• Venue is usually proper where the child resides
• Statutes of limitation for bringing paternity actions vary by state and
federal law
• The burden of proving paternity is on the petitioner and the standard
of proof is usually by a preponderance of the evidence
• Paternity judgments are binding on the parties but not necessarily
on the child
• DNA testing is evidence but is not necessarily determinative (See
Case 7.1 A.J. v. I.J. (2002) on pages 222-224)
10

11. What is the basic process for
7.3 adjudicating paternity?
• Complaint drafted (See Exhibit 7.3 on page 219)
• Care and Custody Disclosure Form prepared
• If receiving public assistance or otherwise unable to pay, Affidavit
of Indigency completed by plaintiff
• Plaintiff files the above and the court assigns a docket number
• Summons completed and served
• Defendant answers the complaint admitting or denying paternity
(a default judgment may be entered if defendant fails to respond)
• Financial statements filed
• Motions for temporary orders relating to the child may be filed and
heard
• If paternity is disputed, genetic testing may be ordered (See
Exhibits 7.4 and 7.5 on pages 220-221)
• Discovery completed
• Customary pretrial steps are completed
• Trial is held
• Case is dismissed or judgment entered
11

12. Learning Objective
After this lecture, you should be able to:
Explain what paternity fraud is
7.4 and how paternity may be
disestablished.

13. 7.4 What is paternity fraud?
• Paternity fraud is a fraud in which a mother
intentionally misleads a man into believing he is the
father of a child to whom he is genetically unrelated.
• Some examples:
– The mother may have been raped and not want contact with
the father
– There may be a history of abuse and she fears for the safety
of herself and the child
– She may be married and not want to jeopardize her
marriage
– She may lie because she has to identify a father in order to
receive public assistance
• See Case 7.2 Doran v. Doran (2003) on pages 227-
230 of the text.
13

14. 7.4 How is paternity disestablished?
• Disestablishment of paternity refers to the situation in
which a court issues an order vacating an earlier
paternity judgment or acknowledgment of paternity
based on evidence the man is not the child’s father,
in effect disestablishing a previously existing father-
child relationship.
• The states have taken 3 positions on this issue:
– A number of states have determined by statute or case law
that, in the interest of fairness, a father who has been
defrauded should be permitted to seek an order vacating an
earlier paternity judgment.
– Some states have expressly not permitted disestablishment
petitions viewing the child rather than the father as the
victim.
– The remaining states weigh the relative benefits of
knowledge of the truth against disruption in the child’s life.
14

15. Learning Objective
After this lecture, you should be able to:
Identify various applications of
7.5 assisted reproductive
technology.

16. What is Assisted Reproductive
7.5 Technology (ART)?
• ART refers to treatments or procedures designed to
make parenthood possible for persons with fertility
problems or individuals who are otherwise unable or
personally unwilling to reproduce.
• Some of the more common methods include the
following:
– Artificial insemination: involves insertion of the sperm of a
donor into a female’s reproductive organs by a means other
than sexual intercourse
– Cryopreservation: the freezing of gametes (eggs and sperm)
or embryos to preserve them for use at a later date
– Embryo adoption: two or more embryo donors give an
embryo to a recipient with the intention that the recipient
become pregnant and subsequently adopt the resulting
child post birth
16

17. What is Assisted Reproductive
7.5 Technology (ART)? (cont.)
• In vitro fertilization (IVF): the fertilization of an egg by
sperm outside of the womb with the intention that
the resulting zygote be available for implantation,
cryopreservation, donation, or research
• Posthumous reproduction: reproduction that occurs
after the death of one or both of the gamete
contributors
• Surrogacy: in a surrogacy arrangement, a woman
agrees to conceive a child through natural or
artificial insemination or to implantation of an
embryo and to relinquish her parental rights to the
resulting child post birth; the surrogate mother may
or may not be genetically related to the child
17

18. Learning Objective
After this lecture, you should be able to:
Discuss some of the ways in which courts
and legislatures are addressing surrogacy
7.6 arrangements, cryopreserved embryos,
posthumous conception, and the uses of
assisted reproductive technology by same-
sex couples.

19. How have legislatures and courts addressed
7.6 surrogacy arrangements?
• Surrogacy law is unsettled and some states have no
controlling statutory or case law. Some states ban
surrogacy agreements entirely and others regulate them
to varying degrees.
• When disputes about parentage arise in the surrogacy
context, the courts generally apply one of four standards:
– Genetic test: individuals who contribute the child’s genetic material
should be the legal parents
– Gestational test: the woman who carries and gives birth to a child
should be the child’s legal mother
– Best interests of the child test: the legal parents should be the
persons best able to meet the child’s needs
– Intent test: the legal parents should be the persons who put the
procreative process in motion with the intention of being the child’s
parents (See Case 7.3 Johnson v. Calvert (1993) on pages 234-236)
19

20. How have legislatures and courts addressed
7.6 cases involving cryopreserved embryos?
• The courts will increasingly be called upon to
address these cases as there are already
hundreds of thousands of unused embryos in
cryopreservation.
• The unused embryos may be stored for use at a
later date, donation, research, or ultimately
destruction.
• There are two contexts in which this topic is most
likely to arise:
– Disposition of frozen embryos upon divorce
– Posthumously conceived children
20

21. 7.6 How do the legislatures and courts deal with the
disposition of frozen embryos upon divorce?
• A limited number of states have enacted legislation
relating to the use, storage, and disposition of
preserved embryos.
• The courts have applied five approaches when
addressing this topic:
– In the absence of an agreement, the majority favor the party
seeking to avoid forced parenthood
– Enforce the agreement
– Enforce agreements but allow parties to change their minds
up until implantation or destruction of the embryos
– Enforce agreements but not for nonreproductive use unless
permitted by state law
– Refuse to enforce agreements based on state law, public
policy, or other considerations
21

22. 7.6 How do the legislatures and courts deal with cases
involving posthumous reproduction?
• Thus far, most disputes involving posthumous
reproduction arise in connection with:
– Probate matters: Several states identify the intestate
inheritance rights of posthumously conceived children by
statute. Some provide, along with other conditions, that
the intended parents and treating physician must have
signed an agreement regarding disposition of
cryopreserved eggs, sperm, and embryos in the event of
the death of one or both of the spouses.
– Claims for Social Security Survivor Benefits: Posthumously
conceived children may be eligible for Social Security
Survivor benefits if the child is entitled to inherit under the
intestacy law in the state where the decedent was
domiciled at death.
22

23. How do the legislatures and courts deal with
7.6 cases involving children born to same-sex
couples through ART?
• Initially, the courts generally determined that only
the birth parent was a legal parent to a child born to
a lesbian couple that had a child together through
artificial insemination.
• However, there is an increasing trend toward
recognizing parental rights and responsibilities of
same-sex partners in some circumstances:
– The co-parent participated in the decision to have a child
– The co-parent lived with the child since birth
– The co-parent had an agreement with the child’s legal
parent to share parental rights and responsibilities
– The co-parent held himself out to others as the child’s
parent
– Recognizing the co-parent as a legal parent will be in the
child’s best interest
23

24. Learning Objective
After this lecture, you should be able to:
Describe the role of the
7.7 paralegal in cases involving
determination of parentage.

25. What is the role of the paralegal in cases
7.7 involving determinations of parentage?
• The paralegal’s role is determined by:
– The extent to which the firm handles cases involving parentage
determinations
– The prevailing law in the jurisdiction where the paralegal is employed
• The tasks most commonly performed include the following:
– Locating controlling statutes and case law
– Researching related jurisdictional issues
– Gathering information in preparation for drafting pleadings, motions,
discovery requests, etc.
– Maintaining a list of reputable DNA test banks and arranging for
testing when directed
– Drafting agreements such as surrogacy agreements (See Paralegal
Application 7.5 Assisted Reproduction Documents on pages 238-239
of the text)
– Drafting affidavits, exhibits, memoranda, correspondence, etc as
assigned
25

26. Chapter Summary
7.1 Identify the three parties most interested in 12
parentage determinations.
Identify the most common ways in which legal
7.2 parentage is established.
Describe the basic process for adjudicating
7.3 paternity.
Class Name
Instructor Name
Date, Semester
Cont.

27. Chapter Summary
7.4 Explain what paternity fraud is and how paternity 12
may be disestablished.
Identify various applications of assisted
7.5 reproductive technology.
Discuss some of the ways in which courts and legislatures are
7.6 addressing surrogacy arrangements, cryopreserved
embryos, posthumous conception, and the uses of assisted
reproductive technology by same-sex couples.
Class Name
Instructor Name
Date, Semester
Cont.

28. Chapter Summary
7.7 Describe the role of the paralegal in cases 12
involving determination of parentage.
Class Name
Instructor Name
Date, Semester