Topic:
UNIFORM LAWS; PARENTS; FAMILIES (GENERAL); CONSTITUTIONAL LAW; MODEL LAWS;
Location:
UNIFORM AND MODEL LAWS;
Scope:
Court Cases; Federal laws/regulations; Connecticut laws/regulations;

OLR Research Report


February 15, 2000

 

2000-R-0162

PARENTAGE LAWS

 

By: Susan Price-Livingston, Research Attorney

You asked the following:

1. what the Uniform Parentage Act (UPA) is and whether such legislation has been introduced in Connecticut,

2. whether the Uniform Putative and Unknown Fathers Act (UPUFA) has been revised to reflect the increased use of DNA testing,

3. whether Connecticut's inheritance laws unconstitutionally discriminate against children born out-of-wedlock, and

4. who can dispute the paternity of a child born to a married couple.

SUMMARY

The UPA is a set of uniform rules for establishing parentage. It declares equal rights for children regardless of their parents' marital status. Originally approved by the National Conference of Commissioners of Uniform State Laws (NCCUSL) in 1973, its current revision combines the UPA, the UPUFA (1989, with revisions), and the Uniform Status of Children of Assisted Conception Act (1989, with revisions) into a single act. It includes nine sections on genetic testing. A computer search, check of the Legislative Record Index, and inquiry of Legislative Commissioners Office attorney Richard Taff found no efforts to enact the UPA in Connecticut.

Our inheritance laws appear to conform with the constitutional mandate of non-discrimination against children born to unmarried parents. And our paternity laws permit people to challenge the paternity of children born to married couples under some circumstances.

UPA

We have enclosed a copy of the NCCUSL's proposed revision of the UPA (October 1999). Each section is annotated and contains the drafters' comments. Its provisions cover

1. the parent-child relationship,

2. voluntary acknowledgments of paternity,

3. paternity registries,

4. genetic testing,

5. proceedings to determine parentage,

6. parentage based on equitable estoppel (conditions under which a person cannot deny parentage),

7. children of assisted reproduction, and

8. gestational agreements (written agreements between intended parents and a woman intending to give birth to their child).

DISCRIMINATION AGAINST CHILDREN BORN OUT OF WEDLOCK

The U.S. Constitution's 14th Amendment prohibits states from denying illegitimate children equal protection of the laws (Trimble v. Gordon, 430 US 762, 776 (1997)(holding unconstitutional Illinois' intestacy statute that permitted children born out of wedlock to inherit from mother only)). Our Supreme Court invalidated a similar inheritance restriction on the same grounds (Nagle v. Wood, 178 Conn. 180 (1979)). Connecticut's intestacy statutes currently allow such children to share equally with children born in marriage so long as there is sufficient proof of paternity (CGS 45a-438b(2)).

PATERNITY PRESUMPTION OF CHILD BORN TO MARRIED COUPLE

In Connecticut, a child born in wedlock is presumed to be the child of the mother and her husband, even if conceived prior to the marriage (Weidenbacher v. Duclos, 234 Conn. 51, 69 (1995), copy enclosed)). But this presumption can be overcome by a person, including a man claiming to be the child's biological father, who presents clear, convincing, and satisfactory evidence that the mother's husband is not the child's biological father (Id., p. 70).

One basis for the Weidenbacher court's decision was the accuracy of scientific procedures, including DNA testing, in determining a child's parentage. A second was the court's recognition of the constitutional right of an unwed father to maintain a relationship with his child. In this instance, our Supreme Court appears to have given such fathers greater rights than the U.S. Supreme Court (cf Michael F. v. Gerald D, 491 US 110, 130(1989) (state's irrebuttable presumption of legitimacy of child born to married couple does not offend U.S. Constitution)).

Our courts have imposed some limits on such paternity challenges. A person claiming to be the biological father of a child born to a married couple must offer proof at a preliminary evidentiary hearing before the case can go forward. The Weidenbacher court specified that judges must decide on a case-by-case basis whether he has offered enough evidence. It suggested two possible tests: (1) whether the putative father and child have developed a substantial parent-child relationship or (2) whether it is in the child's best interest to allow someone outside the present family to bring a paternity action.

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