CHOICE OF LAW & PATERNITY

Professor William ReynoldsUniversity of Maryland School of Law

• Uniform Parentage Act, adopted in 18 states, has been officially superseded by the Uniform Parentage Act, adopted in 9 states.

• The 1973 Act is based on traditional notions—“natural” and “adoptive” parents (Sec. 3); age-old presumptions of paternity (Sec.4). The 2002 Act is much more state- of-the-art.

The 1973 Act does not address choice of law.

The 2002 Act provides that: “(b) The court shall apply the law of this State

to adjudicate the parent-child relationship. The applicable law does not depend on:

(1) the place of birth of the child; or (2) the past or present residence of the

child.”

That seems pretty clear: Forum law controls paternity issues, and we don’t care where the child was born or where she now lives.

But there are some questions . . . .

But what if the case is brought in a state that has not adopted the 2002 Act?

-- Does forum have a strong interest in the problem?

-- Does another state have a stronger interest?

-- Forum non conveniens?

An acknowledged father seeks to disestablish his paternity in a state different from that where the acknowledgement took place.

Does Sec. 103 of the 2002 Act apply to disestablishment questions? Is disestablishment a “proceeding to adjudicate the parent-child relation”?

What if the forum is in a state different from where paternity was acknowledged/adjudicated?

DISESTABLISHMENT

A child is born to a same-sex couple in a state where the marriage is legal and they are the presumed parents under the law of that state. One parent and the child move to a state that does not recognize same-sex marriage; does the presumption still hold?

SAME-SEX MARRIAGE

A “gestational” contract is entered into in a state where it is legal. The gestational mother decides to keep the child and moves to a state where the agreement is illegal. The “intended parents” sue to establish paternity.

-- Is there a judicially “validated agreement” under Sec. 801 of the 2002 Act?

-- If not, is the gestational mom the mother” under Sec. 201(a)(1), and is the intended dad (if sperm donor) the father under Sec. 201 (b) if paternity is adjudicated?

GESTATIONAL CONTRACTS