PATERNITY DISESTABLISHMENT IN THE IV-D WORLD

1. PATERNITY DISESTABLISHMENT IN THE IV-DWORLD Coessa Kenney Patrick Quinn Nicholas Palos

2. Presenters Coessa A. Kenney Child Support Paralegal Calhoun County (MI) Prosecutor’s Office Patrick Quinn Administrator, Family Court Allegheny County, PA Honorable Nicholas Palos Support Magistrate Kings County (Brooklyn, NY) Family Court

3. Workshop Objectives This CLE Workshop will • Explore the different ways the States allow challenges to a final determination of paternity • Inform the attendee how state agencies and tribunals may respond to these challenges • Advance some strategies to enter orders that will limit the risk of a challenge to a IV-D determination of paternity

4. Workshop Methodology • The panelists will begin with a brief discussion of the ways paternity is legally recognized in the States, followed by a listing of the issues involved when one seeks to disestablish paternity • A series of fact patterns will then be offered for discussion by the panel and the attendees.

5. CAUTION: PARTICIPANT FAILURE TO ENGAGE IN THE DISCUSSION OF THE ISSUES PRESENTED MAY BRING ABOUT LAW SCHOOL FLASHBACKS . . . . “VOLUNTEERS WILL BE CHOSEN”

6. WHO ARE YOU? • Attorney • Judicial Officer (Judge, Magistrate, Special Master, etc.) • Non-Legal Court Staff • Case Worker • Supervisor • Academic • Parent

7. ESTABLISHING PATERNITY • Several vehicles used to legally recognize an individual as the father of a child • Presumption • Biological • Legal • Voluntary Acknowledgement • Paternity Judgment • Adoption • Paternity by Estoppel

8. ESTABLISHING PATERNITY

9. ESTABLISHING PATERNITY • Presumptive Fatherhood • A presumption is a rule of law that requires a particular inference be drawn from particular facts unless the opponent introduces contrary evidence • A presumption may be • Rebuttable • Other party may provide evidence to show a different conclusion should be drawn • Conclusive • Opponent may not offer any evidence to show a different conclusion should be drawn

10. ESTABLISHING PATERNITY • Presumptive Fatherhood • Each State has different presumptions regarding when an individual will be presumed to be the father of a child: • A presumption of fatherhood may arise when: • Child conceived and/or born during a marriage • Affidavit of parentage executed • Parties complete genetic testing but no formal order determining paternity is entered • Father’s name appears on the child’s birth certificate

11. ESTABLISHING PATERNITY • Presumptive Fatherhood • The most common presumption is the “Presumption of Legitimacy” • One of the oldest and strongest in American Law • May be rebuttable or conclusive • N.Y Fam. Ct. Act §417 (rebuttable presumption) • N.Y. Domestic Relations Law §24(1) (rebuttable presumption) • N.Y. Domestic Relations Law §73 (irrebuttable presumption)

12. ESTABLISHING PATERNITY • Voluntary Acknowledgement of Paternity • Basis is contract law • Parties to the acknowledgement agree that the person is the father of the child • Subject to same concepts as contract law • Rescission rules • Automatic within statutory time limits • May be available due to fraud, duress or material mistake of fact • Minors cannot validly execute an acknowledgement, but may ratify one executed during their minority • Void if executed by a married woman

13. ESTABLISHING PATERNITY • Legal Adoption • Judicial Determination of Paternity • May be difficult if putative father is not alive at time application is made • May involve resolving issues which arose because another means of establishing paternity has been employed • Paternity by estoppel • Parent-child relationship makes biology irrelevant

14. DISESTABLISHING PATERNITY

15. Presumption of Paternity • Children born within 300 days of the termination of the marriage. • Attempted marriage • Holding one’s self out to be the father • Cohabitation and poor man’s adoption

16. Rescission of Voluntary Acknowledgment • 60 days to rescind • or until the first action that addresses child related issues. • Judicial challenge no time frame • Disestablishment by completing a form.

17. Judicial Challenge • Paternity disestablishment is by judicial challenge only • After timeframes expire for rescission.

18. Timeframes • Average timeframe is three years from the DOB. • or knowledge that he is not the father. • No timeframe for duress, fraud or mistake of fact.

19. Reason For Challenge • Fraud, duress or mistake of fact • Genetic Testing • Affidavit of non parentage by mother &/or acknowledgment of legal father.

20. Level of Proof • Clear and Convincing Evidence • Genetic Testing

21. Scenario 1: Brenda and Eddie Brenda and Eddie were high school sweethearts. They married in New York in 2000. Over the next three years, Brenda had three children, Eddie Jr., Diane and Lily. Two years later, the family moved to New Jersey, where Joseph was born. One year later, Brenda and Eddie separated. Brenda then moved to Delaware with the children, while Eddie stayed in New Jersey, where he was a guest of the Garden State. After one year, Brenda filed for divorce in Delaware and an uncontested divorce was granted. One year later, Brenda comes into the office seeking to establish support for all four children. She brings a copy of her divorce decree, which is silent regarding the status of the children, as the Delaware court only terminated the marriage as personal jurisdiction was an issue. Brenda also tells you that she is pretty sure Eddie is the father of Eddie Jr. and Lily. She says she is absolutely certain that Eddie’s partner Roger Rake is the father of Diane, as Eddie was in jail during the time Diane was conceived, and she also produces the Acknowledgement of Paternity form she and Roger executed and filed for her when the she was born. Finally, she states she is not sure who Joseph’s father is, as they had attended some pretty wild parties round the time he was conceived.

22. PRESUMPTION OF PATERNITY VARIES FROM STATE BY STATE Some states by case law. Some states By statute. Constantly evolving law…

23. Preserve the marriage and intact family • and • Protect children from • suffering the emotional trauma • of discovering that the husband • is not the father. The basis of the presumption of paternity is to:

24. Presumption applies against the mother & father (wife & husband) until a party attempts to disestablish paternity. Genetic test results - Are they admissible to rebut or disestablish paternity, if the presumption of paternity is applicable?

25. Two part test: • Does the presumption of • paternity apply (within a • marriage & an intact family)? • IF YES: Has it been rebutted • (non-access or impotency) • or is it inapplicable (no • Longer intact family) 2. If presumption has been rebutted or is inapplicable, does paternity by estoppel apply? Paternity by Estoppel: The legal determination that a person’s (i.e. mother/father/putative father) prior conduct precludes that person from denying, disestablishing, or seeking support from a third party for the child regardless of genetic test results. Brinkley v. King

26. Continued Developments in Case Law… …have not altered these traditional paternity doctrines, but may be a factor in a paternity disestablishment proceeding. • A person must provide the required proof to avoid the application of estoppel. • A person who relied on a misrepresentation of paternity should not be permitted to suffer harm because of the estoppel doctrine. • The person must then prove that the estoppel of paternity doctrine does not apply because either there was never a parental relationship with the child and/or the mother committed fraud in establishing paternity.

27. PARTIES to disestablishment action in marriage presumption cases: • HUSBAND/ • PRESUMED FATHER • MOTHER/ • WIFE • PUTATIVE • FATHER ANY ONE OF THE THREE CAN CHALLENGE THE PRESUMPTION

28. Handling Cases When the Parties Agree Husband is Not the Father • The legal rationale behind the requirement that the mother file a case against the • husband is the presumption of paternity. • Even though the mother and the husband agree that the husband is not the father of Baby Doe, the presumption of paternity has to be addressed. • Ultimately, a judicial determination on the presumed paternity will be made based upon the specific facts, of the case. Mother v. the Husband:

29. Mother v. the Husband: (cont.) • Because the mother and the husband agree that the husband is not the father of Baby Doe, there would likely be a determination by the Court disestablishing the paternity of Baby Doe by declaring that the presumption of paternity does not apply. • Consideration of best interest of the child? • The Court may render a decision based upon the testimony or may order genetic paternity tests.

30. GENETIC TESTING…PIQ -03-01 (April 28, 2003) • Services NOT required, however, • IV-D funding is available if IV-D agency • Provides services in challenge. • Federal funding available for • genetic test costs in IV-D cases. STATE LAW OR LOCAL PROCEDURE DETERMINES WHO PAYS

31. Scenario 2: Jack and Jill Jack and Jill are two fifteen year olds. They attend high school in New York. A few weeks after the homecoming dance, Jill told Jack she was pregnant. After the typical teenaged reaction, Jack finally accepted the situation and he attended the last prenatal appointments with Jill. Jack was present in the delivery room when the Jason was born. Jack and Jill, now sixteen and fifteen respectively, executed an Acknowledgement of Paternity in accordance New York law before leaving the hospital, and they filed the acknowledgement with the appropriate authority. Two years later, Jack is living in Ohio and is working as a plumber’s apprentice. Jill lives in New York and working part-time in a local pizza shop. The child is enrolled in Medicare. She files a petition in her local family court seeking an order of support for Jason. In response, Jack files a petition to rescind the acknowledgement of paternity. He states he wants to have DNA testing performed because he does not believe Jason is his son. He further tells the presiding Magistrate that testing is completed he will not pay a penny. He states that he is sure this can’t be his child because he knew Jill was also seeing his cousin and the child looks more like him, as the child has blonde hair and both he and Jill have black hair.

32. FEDERAL LAW PERMITS STATES TO “CHOOSE” IF PATERNITY ACKNOWLEGDMENT CONSTITUTES: • Rebuttable Presumption • of paternity B. Conclusive evidence of paternity 42 U.S.C. §666(a)(5)(E) 45 CFR 302.70(a)(5)

33. Rescission of the Voluntary Acknowledgment of Paternity • Either parent who signs a voluntary Acknowledgment of Paternity (PA/CS 611) form can rescind the voluntary acknowledgment within the earlier of the following: • Sixty days of the original signing; or: • The date of an administrative or judicial proceeding relating to the child, including a conference or a similar proceeding to establish a support order to which the parent is a party (42 U.S.C § 666(a)(5)(D)(ii)).

34. REVOCATION OF THE Affidavit of Parentage or Acknowledgement of Paternity • Federal law requires all states • to have laws which permit: 1. Recession within 60 days 2. Beyond 60 days challenge must be on basis of fraud, duress or material mistake of fact. • Process controlled by State law • IV-D funding for genetic tests available in IV-D cases. 42 U.S.C. § 466 (a)(5)(D)

35. Rescission of the Voluntary Acknowledgment of Paternity • New York recently added §516-a(b)(ii) to the Family Court Act, which provides procedures to be applied where a minor is a signatory to the Acknowledgement of Paternity (LDSS-4418). • Up to sixty days after the signatory’s eighteenth birthday; or: • Sixty days after the date on which the respondent is required to answer a petition relating to the child in which the signatory is a party.

36. JUDICIAL RECISSION Court can overturn based only on: • FRAUD • DURESS • MISTAKE OF FACT DEFINED BY CASE LAW IN STATES PROCESS DEFINED BY STATE LAW.

37. Scenario 3: William, Henry and Anne Henry and Anne were dating for two years. Soon after breaking up with Henry, Anne began to date William. About a week later, Anne discovered she was pregnant. When she tried to tell Henry about it, he would have nothing to do with her and banned her from his premises. At the same time, William became closer to Anne, and she told him she was pregnant with Henry’s baby. She also told him that Henry was the father. William and Anne had not had sexual relations up to this point, but he promised to support her. William attended all prenatal visits with Anne and was present in the delivery room. William and Anne then executed an Acknowledgement of Paternity for the William Jr. and filed it with the appropriate authorities. Eight months later, Henry has second thoughts and contacts Anne, asking to see the child. As Henry was Anne’s great love, she soon began contacting him regularly. William began to seethe and moved out of the home. Anne applied for TANF for William, Jr. and provided the Acknowledgement as part of the paperwork. She tells her worker that Henry is actually the father of William Jr. as he was conceived just prior to her starting to date William. In court, William also states he is not the father and seeks to rescind the acknowledgement.

38. COMPETING FATHERS • ACKNOWLEDGMENTS SIGNED BY • BIOLOGICAL FATHER WHEN A LEGAL • FATHER EXISTS. • ACKNOWLEDGMENTS SIGNED BY • NON-BIOLOGICAL FATHER WHEN THE • BIOLOGICAL FATHER IS KNOWN TO MOTHER • STATE LAW AND PROCESS • CONTROLS

39. Scenario 4: David and Tracy David and Tracy were married in 2004. Jane was born in 2009. David filed for a divorce in March, 2011, and the parties were divorced in June 2011. As part of the divorce, David and Tracy agreed to joint legal and physical custody of Jane. Tracy filed a motion in 2013 to reopen the divorce proceeding seeking to terminate the custody arrangements and a judicial finding that Jane was born out of wedlock. In December 2012,, Jane had a DNA test done which determined that Oscar, her current husband, was, in fact, Jane’s father. This test result was attached to the moving papers which were submitted to the court

40. Scenario 5: Fred, Wilma and Barney After five years of marriage, Fred left Wilma. Wilma moved to a upstate New York. Several months later, after they moved in together. Soon after, Barney was sentenced to eighteen months in jail. Fred reappeared and moved in with Wilma. Wilma discovered she was pregnant. They decided to give their marriage another try and she told him she was pregnant. Time passed and Wilma gave birth to a daughter, Penny. Fred was at the hospital for the birth. As he was married to Wilma, the birth certificate named him as the father. A months later, Wilma leaves Fred. Barney is released and joins Wilma in Wisconsin. It is clear to her that Barney is really Penny’s dad. When Barney leaves, she sought assistance in obtaining support for Penny, at which time she told her caseworker that Barney, her former boyfriend, and not Fred, her husband, is the father of the child. Ms. Slate, a new caseworker commences a proceeding to establish Barney as Penny’s father. Based on Wilma’s statement, notice is sent to Fred in Ohio but returned by the post office as undeliverable. Barney was served in Georgia and defaulted, at which time an Order of Filiation and an Order of Support was entered. This order has been enforced for the last five years. Fred is finally located in Michigan. Ms. Slate then sends the matter to Michigan seeking to have the Michigan tribunal exclude Fred as Penny’s father.

41. Questions??? Comments???

42. CONTACT INFORMATION • Coessa Kenney: ckenney@calhouncountymi.gov • Patrick Quinn: PatrickQuinn@PACSES.com • Nicholas Palos: npalos@courts.state.ny.us