Choosing Among Imprecise American State Parentage Laws

AuthorJeffrey A. Parness
PositionProfessor Emeritus, Northern Illinois University College of Law. B.A., Colby College; J.D., The University of Chicago.
Pages481-521
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 Kelv in 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 assistance1 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 FAM ILY 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)).
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).

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT