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Chapter 7:                         Parenthood                                  12                  Family Law for the Para...
LEARNING OBJECTIVES  After this lecture, you should be able to:7.1               Identify the three parties most intereste...
LEARNING OBJECTIVES  After this lecture, you should be able to:7.4               Explain what paternity fraud is and how p...
LEARNING OBJECTIVES  After this lecture, you should be able to:7.7               Describe the role of the paralegal in cas...
Learning ObjectiveAfter this lecture, you should be able to:               Identify the three parties most7.1            i...
Who are the three parties most interested in7.1           parentage determinations?  •   The child: knowing his or her par...
Learning ObjectiveAfter this lecture, you should be able to:               Identify the most common ways7.2            in ...
What are the most common ways in which          legal parentage is established?•   The marital presumption: the presumptio...
Learning ObjectiveAfter this lecture, you should be able to:               Describe the basic process for7.3            ad...
What are some of the threshold7.3       issues in paternity actions?  •   Mothers, fathers, and IV-D agencies are the comm...
What is the basic process for7.3           adjudicating paternity? •    Complaint drafted (See Exhibit 7.3 on page 219) • ...
Learning ObjectiveAfter this lecture, you should be able to:               Explain what paternity fraud is7.4            a...
7.4              What is paternity fraud?  •    Paternity fraud is a fraud in which a mother       intentionally misleads ...
7.4       How is paternity disestablished?  •    Disestablishment of paternity refers to the situation in       which a co...
Learning ObjectiveAfter this lecture, you should be able to:               Identify various applications of7.5            ...
What is Assisted Reproductive7.5            Technology (ART)?  •    ART refers to treatments or procedures designed to    ...
What is Assisted Reproductive7.5       Technology (ART)? (cont.)  •   In vitro fertilization (IVF): the fertilization of a...
Learning ObjectiveAfter this lecture, you should be able to:               Discuss some of the ways in which courts       ...
How have legislatures and courts addressed7.6              surrogacy arrangements?  •     Surrogacy law is unsettled and s...
How have legislatures and courts addressed7.6      cases involving cryopreserved embryos?  •    The courts will increasing...
7.6        How do the legislatures and courts deal with the            disposition of frozen embryos upon divorce?  •    A...
7.6        How do the legislatures and courts deal with cases                 involving posthumous reproduction?  •     Th...
How do the legislatures and courts deal with7.6        cases involving children born to same-sex                     coupl...
Learning ObjectiveAfter this lecture, you should be able to:               Describe the role of the7.7            paralega...
What is the role of the paralegal in cases7.7          involving determinations of parentage?•     The paralegal’s role is...
Chapter Summary7.1               Identify the three parties most interested in     12                  parentage determina...
Chapter Summary7.4               Explain what paternity fraud is and how paternity         12                  may be dise...
Chapter Summary7.7               Describe the role of the paralegal in cases   12                  involving determination...
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Parenthood

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Parenthood

  1. 1. Chapter 7: Parenthood 12 Family Law for the Paralegal 2nd Edition WilsonClass NameInstructor NameDate, Semester
  2. 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 legal7.2 parentage is established. Describe the basic process for adjudicating7.3 paternity. Class Name Instructor Name Date, Semester Cont.
  3. 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 assisted7.5 reproductive technology. Discuss some of the ways in which courts and legislatures are7.6 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. 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. 5. Learning ObjectiveAfter this lecture, you should be able to: Identify the three parties most7.1 interested in parentage determinations.
  6. 6. Who are the three parties most interested in7.1 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. 7. Learning ObjectiveAfter this lecture, you should be able to: Identify the most common ways7.2 in which legal parentage is established.
  8. 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. 9. Learning ObjectiveAfter this lecture, you should be able to: Describe the basic process for7.3 adjudicating paternity.
  10. 10. What are some of the threshold7.3 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. 11. What is the basic process for7.3 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. 12. Learning ObjectiveAfter this lecture, you should be able to: Explain what paternity fraud is7.4 and how paternity may be disestablished.
  13. 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. 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. 15. Learning ObjectiveAfter this lecture, you should be able to: Identify various applications of7.5 assisted reproductive technology.
  16. 16. What is Assisted Reproductive7.5 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. 17. What is Assisted Reproductive7.5 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. 18. Learning ObjectiveAfter this lecture, you should be able to: Discuss some of the ways in which courts and legislatures are addressing surrogacy7.6 arrangements, cryopreserved embryos, posthumous conception, and the uses of assisted reproductive technology by same- sex couples.
  19. 19. How have legislatures and courts addressed7.6 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. 20. How have legislatures and courts addressed7.6 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. 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. 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. 23. How do the legislatures and courts deal with7.6 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. 24. Learning ObjectiveAfter this lecture, you should be able to: Describe the role of the7.7 paralegal in cases involving determination of parentage.
  25. 25. What is the role of the paralegal in cases7.7 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. 26. Chapter Summary7.1 Identify the three parties most interested in 12 parentage determinations. Identify the most common ways in which legal7.2 parentage is established. Describe the basic process for adjudicating7.3 paternity. Class Name Instructor Name Date, Semester Cont.
  27. 27. Chapter Summary7.4 Explain what paternity fraud is and how paternity 12 may be disestablished. Identify various applications of assisted7.5 reproductive technology. Discuss some of the ways in which courts and legislatures are7.6 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. 28. Chapter Summary7.7 Describe the role of the paralegal in cases 12 involving determination of parentage. Class Name Instructor Name Date, Semester

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