Choosing Among Imprecise American State Parentage Laws

• Author: Jeffrey A. Parness
• Position: Professor Emeritus, Northern Illinois University College of Law. B.A., Colby College; J.D., The University of Chicago.
• Pages: 481-521

Choosing Among Imprecise American State Parentage Laws Jeffrey A. Parness * TABLE OF CONTENTS Introduction .................................................................................. 482 I. Choice of Law in Initial Parentage Proceedings ........................... 487 II. Introduction to Imprecise American State Parentage Laws .......... 492 III. Exemplary Cases Involving Respect for Earlier Parentage Determinations ............................................................................. 494 A. Respect in Home State Child Support Cases ......................... 494 B. Respect in Child Support Cases in Responding Tribunals ..... 495 C. Respect in Childcare Disputes ............................................... 495 D. Respect in Marital Parentage Presumption Cases .................. 497 E. Respect in Voluntary Paternity Acknowledgment Cases ....... 501 F. Respect in Other Initial Child Support Cases......................... 502 IV. Exemplary Cases on Choosing Which Imprecise Parentage Laws Apply .................................................................................. 503 A. Choice of Law in Initial Child Support Cases in Home State Courts ................................................................. 503 B. Choice of Law in Initial Child Support Cases in Responding Tribunals ............................................................ 503 C. Choice of Law in Initial Childcare Cases .............................. 504 D. Choice of Law in Marital Parentage Presumption Cases ....... 510 E. Choice of Law in Voluntary Paternity Acknowledgment Cases ......................................................... 512 F. Choice of Law in Other Initial Child Support Cases ............. 513 G. Choice of Law in Adoption Cases ......................................... 516 Copyright 2015, by JEFFREY A. PARNESS. * Professor Emeritus, Northern Illinois University College of Law. B.A., Colby College; J.D., The University of Chicago. Special thanks to Kelvin Kakazu for his great research assistance, and to Dave Smith, Amanda Beveroth and Kelley Cook for their research and advice. An early version of the article was presented in November of 2014 at the Fifth Loyola University of Chicago Constitutional Law Colloquium. 482 LOUISIANA LAW REVIEW [Vol. 76 V. Choosing Between Imprecise American State Laws When First Determining Parentage .............................................. 519 Conclusion .................................................................................... 519 INTRODUCTION Prompted by federal welfare assistance 1 and full-faith-and-credit statutes, 2 an American state trial court now generally exercises subject matter jurisdiction to make initial child support determinations if the forum is the “home state” of the child on the date of the commencement of the proceeding. “Home state” for a child means the last state where the child lived with a parent—or a person acting as a parent—for at least six consecutive months immediately coming before the time the plaintiff filed the initial proceeding. 3 When this jurisdiction is exercised, forum parentage law is typically employed. 4 Federal lawmakers addressed child support matters after recognizing that more and more disputes over children between parents residing in different states were occurring, state child support laws were “not 1. 42 U.S.C. § 654(20) (2012) (a state plan for child and spousal support, where the state receives federal welfare aid, must have in effect all laws in § 666); 42 U.S.C. § 666(f) (2012) (each state must have in effect the Uniform Interstate Family Support Act); UNIF. INTERSTATE FAMILY SUPPORT ACT § 102(8) (amended 2008), available at http://www.uniformlaws.org/shared/docs/interstate %20family%20support/UIFSA_2008_Final_Amended%202015_Revised%20Pr efatory%20Note%20and%20Comments.pdf [hereinafter UIFSA] (“‘Home state’ means the state or foreign country in which a child lived with a parent or a person acting as parent for at least six consecutive months immediately preceding the time of filing of a [petition] or comparable pleading for support and, if a child is less than six months old, the state or foreign country in which the child lived from birth with any of them. A period of temporary absence of any of them is counted as part of the six- month or other period.” (alternation in original)). 2. 28 U.S.C. § 1738B(b) (2012). 3. See, e.g. , 750 ILL. COMP. STAT. ANN. 36/102(7) (West 2009); IDAHO CODE ANN. § 7-1002(8) (West, Westlaw through end of 2015 First Regular and First Extraordinary Sessions of the 63rd Legislature). Where a child is less than six months old and is the subject of a child support case, the home state typically is the state of birth. See, e.g. , Ocegueda v. Perreira, 232 Cal. App. 4th 1079, 1081 (Ct. App. 2015). 4. UIFSA, supra note 1, § 303 & cmt. (“Historically states have insisted that forum law be applied to support cases whenever possible. This continues to be a key principle of UIFSA.”); 28 U.S.C. § 1738B(h)(1) (providing that in a proceeding to establish a child support order, the forum state’s law generally applies). State laws founded on the Uniform Reciprocal Enforcement of Support Act (“URESA”), which the Revised Uniform Reciprocal Enforcement Support Act (“RURESA”) amended in 1968, preceded the UIFSA. See , e.g. , Colorado ex rel. R.L.H., 942 P.2d 1386, 1387 (Colo. App. 1997). 2015] IMPRECISE STATE PARENTAGE LAWS 483 uniform,” and noncustodial parents often moved away to avoid the jurisdiction of the children’s home states over child support matters. 5 Federal legislators sought “to establish national standards under which courts of the various states shall determine their jurisdiction to issue a child support order.” 6 The federal laws mitigated forum shopping, leading to multiple—and often conflicting—child support orders. 7 Under this newly enacted law, where the respondent in an initial child support proceeding is not subject to personal jurisdiction in the child’s home state, a home state residential parent or person acting as a parent may nevertheless initiate a child support proceeding in the home state. 8 The court then forwards this proceeding to a state court in a state that can exercise personal jurisdiction over the respondent, typically the respondent’s state of residence. 9 In a forwarded proceeding, the responding tribunal usually applies its own state laws. 10 Obviously, parentage is key to the imposition of a child support order. In seeking to limit harm to children and their custodians, as well as to facilitate governmental recoveries of child welfare payments from parents, Congress enacted the Uniform Interstate Family Support Act (“UIFSA”) at a time when defining legal parentage was typically straightforward. Parentage under state law was usually determined by giving birth, by marriage to the birth mother, by designation on a birth certificate—usually arising from a paternity lawsuit or a voluntary acknowledgment of 5. Full Faith and Credit for Child Support Orders Act, Pub. L. No. 103-383, 108 Stat. 4063 (1994). 6. Id. § 2(b). Such nationwide child support jurisdiction standards do not, however, mean that there are comparable nationwide jurisdiction standards for parentage, or even that there are nationwide standards on defining parentage in child support settings. 7. See, e.g. , In re Schneider, 268 P.3d 215, 218 (Wash. 2011) (en banc) (“This potential for competing child support orders, with varying terms and duration depending on the issuing jurisdiction, resulted in a proliferation of litigation. . . . The UIFSA addressed this ‘chaos’ by establishing a ‘one-order’ system for child support orders by providing that one state would have continuing exclusive jurisdiction over the order.” (citation omitted)). 8. UIFSA, supra note 1, § 301(b). 9. Id. § 304(a). The child support petitioner typically can agree to the responding tribunal’s exercise of subject matter jurisdiction on issues of custody, parenting time, and the like. See, e.g. , In re Paternity of J.G., 19 N.E.3d 278 (Ind. Ct. App. 2014). 10. UIFSA, supra note 1, § 303; 28 U.S.C. § 1738B(h)(1) (2012). On occasion, a custodial parent will be sued in a nonresidential state on the issue of the resident petitioner’s parentage, even though the custodial parent cannot be pursued there on child support or child custody matters. See, e.g. , DeWitt v. Lechuga, 393 S.W.3d 113, 119 (Mo. Ct. App. 2013). 484 LOUISIANA LAW REVIEW [Vol. 76 paternity—or by a formal adoption undertaken with judicial oversight. 11 In each setting, parentage arose at a distinct moment in time. Since Congress acted, however, many states have redefined legal parentage in ways, as with de facto parenthood and equitable adoption, that have no precise moment of origination. 12 New imprecise forms of parentage emerged because family structures changed; today, more same-sex marriages, as well as more unwed same- and opposite-sex couples, are raising children together. 13 Similar to the establishment of parentage, states have created new, imprecise forms of disestablishing initial parentage designations since Congress enacted the UIFSA. This change includes rebuttals of marital paternity presumptions and rescissions of voluntary paternity acknowledgements. 14 New imprecise forms of parentage disestablishment emerged for several reasons, including better and more widely available genetic testing and the increasing numbers of births to unwed mothers that have prompted more rescindable paternity acknowledgments. Because parentage is not defined clearly, courts must look back in time to decide whether certain acts, like household residence or a parental-like relationship, occurred. Many state courts exercising non-forwarded and forwarded home-state jurisdiction in initial child support cases are now choosing to apply their own imprecise parentage laws when examining acts occurring elsewhere. 15 When states differ in these new imprecise forms of...