Module 2 Discussion Problem
Traynae
Child_Protection_--_final_Module_2.pptDefining the Child – Parent Relationship
Establishing Paternity and Maternity
The Importance of Marriage – Historical Background on Children Born to Unmarried Parents
Historically, children born to unmarried parents were labeled “bastards” or “illegitimate,” and had fewer rights and opportunities than children born to married people.
Illegitimate children are, “persons who are begotten and born out of wedlock”.
Civil and Canon law legitimized the child by the subsequent marriage of the parents.
Protecting children from ‘illegitimacy,” remains a strong justification for the legal presumption that any child born to a married couple is the child of the husband and a legitimate product of the marriage.
Defining the Child – Parent Relationship, cont.
Surnames
Traditionally, children born to married couples are given the father’s surname.
At common law, a child born to unmarried parents was considered the child of no one and had no surname at birth.
The law began to give nonmarital children a right to inherit from their mothers and gave their mothers custody, these children began to receive their mothers surnames, which gradually moved from custom to law (text p. 129)
Gubernat v. Deremer – the court held that the surname selected by the custodial parent, that is the parent that makes the decisions in the best interest of the child’s life, is able to give the child their surname. Note: This rule applies for children under the age of 6 years
Defining the Child – Parent Relationship, cont.
Huffman v. Fisher – the court held that for children between the ages of 6-14, the court should make a determination concerning the child’s ability to state a preference which would keep in line with the best interest of the child
Factors to consider
The length of time that the child has used his or her current name
The name by which the child has customarily been called
Whether a name change will cause insecurity or identity confusion
The motivation of the parents in changing the child’s name
Any embarrassment, discomfort, or inconvenience that may result if the child’s surname differs from that of a custodial parent
Defining the Child – Parent Relationship, cont.
Unmarried Parents: The Contemporary Context
Constitutional and Statutory Reform
Levy v. Louisiana – The Supreme Court held for the first time that children born to unmarried parents are “persons” within the Fourteenth Amendment’s Equal Protection Clause.
The Uniform Parentage Act (UPA) Section 202 states, “a child born to parents who are not married to each other has the same rights under the law as a child born to parents who are married to each other.”
Establishing Paternity
The PRWORA [Personal Responsibility and Work Opportunity Reconciliation Act of 1966] resulted in three developments for the establishment of paternity
A change in social perspective
During the 1980’s, there was a growing focus on poverty and other societal problems often associated with single parenthood.
In-Hospital Paternity Establishment
80% of unmarried fathers was in the hospital at birth took an active role in the beginning of the life of the child
Advancement in genetic testing
Advancement in scientific testing for paternity, especially the use of DNA made the identification of fathers a near certainty. (text p. 140)
Establishing Paternity, cont.
PRWORA compelled changes in state laws and procedures in the area of child support enforcement through mandates imposed on states
It expands in-hospital paternity establishment programs
States are required to provide that a voluntary acknowledgement of paternity is considered legally binding
Both parents must be given notice of the legal ramifications of paternity acknowledgement
The name of the father can be included on the birth record only if both parents signed a voluntary paternity acknowledgement
Establishing Paternity, cont.
Changes in the Paternity Establishment Process
Upfront Genetic testing – In order to get upfront genetic testing:
First, the state must provide authority for the state child support agency to order genetic tests “without the necessity of obtaining an order from any judicial or administrative tribunal”
States must have procedures which require parties in contested paternity proceedings to submit a genetic test if the request is supported by a sworn statement setting forth facts establishing a reasonable possibility of the requisite sexual contact between the parties.
State agencies must also pay the costs of the tests
Florida Statute Chapter 742 Determination of Parentage
Pursuant to Fla.. Stat. 742.011 (2005), any woman or any man who has reason to believe that he or she is the parent of a child may bring proceedings to establish paternity in the circuit court.
If the mother of any child born out of wedlock and the reputed father shall at any time after its birth intermarry, the child shall in all respects be deemed and held to be a child of the husband and wife as though bron within wedlock. Fla. Stat. 742.091 (2005)
Scientific testing is are generally acceptable to determine paternity and shall be ordered by the court where appropriate. Fla. Stat. 742.12 (2005)
D.H.R.S. v. Privette (617 So.2d 305)
In the State of Florida, a child born during the course of a valid marriage has the right and presumption of being treated as a product of the marriage. But, what happens when the husband (legal father) is separated from the wife and she becomes pregnant and gives birth to a child that is not her husband’s biological child?
The answer can be found in Privette. The State must comply with the rules set forth in Privette to overcome the strong presumption of paternity on behalf of the legal father.
Florida Statute Chapter 61 Dissolution of Marriage; Support and Custody
Chapter 61 provides the statutory framework for the resolution of child custody and visitation disputes in addition to the mathematical formulation for calculating child support obligations.
The substantive factors found in Fla. Stat. 61.13 are utilized for resolution of custodial disputes even when those disputes arise under the Fla. Stat. Chapter 742.
Chapter 61 is also applied for purposes of calculating child support obligations that arise under other Chapters of the Florida Statutes.
Florida Statute Chapter 61 Dissolution of Marriage; Support and Custody
Pursuant to Chapter 61.13, shared parental responsibility is presumptively in the child’s best interest unless the court finds that shared parental responsibility would be detrimental to the child.
Shared parental responsibility permits a parent (as a matter of law) to participate in the major decision making effecting the child. This concept is sometime referred to as “legal custody” or the right to make legally binding decisions for the child.
Florida Statute Chapter 61 Dissolution of Marriage; Support and Custody
Chapter 61 also authorizes an award of sole parental responsibility when it would be detrimental to the child for a parent to participate in the decision making process for some specified reason.
Primary physical custody is where the child primarily resides; where the child spends the majority of the overnights.
Visitation is also referred to as physical custody and it incorporates the right to have the child in one’s physical custody.
Florida Statute Chapter 61 Dissolution of Marriage; Support and Custody
Courts must apply the statutory factors found in 61.13(3) in order to resolve underlying custody and visitation disputes. This laundry list of factors guides the court in search to determine what is in the “child’s best interest”. Florida courts may order that the child’s primary residence be shared between the parties granting shared primary residential custody of the child. This arrangement is most effective in cases where the parents have a proven ability to communicate and where conflict between them is minimal.
Florida Statute Chapter 61- Part II
The Uniform Child Custody Jurisdiction Act (UCCJEA)
The court must have jurisdiction (judicial authority) to enter a binding order on the subject of the litigation. For children, this judicial authority is found in the UCCJEA. Conceptually, the Act requires that each state should resolve custodial disputes within the geographical territory where the dispute arose by applying the law of that jurisdiction. This concept recognizes and respects the sovereign right of each state to resolve disputes that arise within it’s state boundaries.
Florida Statute Chapter 61- Part II
The Uniform Child Custody Jurisdiction Act (UCCJEA)
“Home State” jurisdiction is the primary jurisdictional basis under which a trial court could exercise jurisdiction pursuant to the UCCJEA and it is defined as:
“the state in which a child lived with a parent or a person acting as a parent for at least 6 consecutive months immediately before the commencement of a child custody proceeding.” For children under the age of 6 months of age, the term means where the child has lived from birth. (see Fla. Stat. 61.514 (2005))
Florida Statute Chapter 61- Part II
The Uniform Child Custody Jurisdiction Act (UCCJEA)
There are some exceptions to the 6 month residency requirement but those exceptions are narrowly construed.
The UCCJEA has other jurisdictional protocols to address situations that do not meet the home state rule.
Every complaint filed in court that involves a child must have an accompanying UCCJEA affidavit attached to explain where the child has lived prior to the initiation of the litigation. Compliance with the UCCJEA is a mandatory perquisite for the court to exercise jurisdiction.
