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Client Empowerment Series 1: Legal versus Presumed Parenthood

All too often we, as experts in our field, become so driven to do what we think is right or best that we forget that it is our ethical duty not to simply tell our clients what to do, but rather to educate and present options to them so that they may make those decisions themselves. It is the client who can best make the decision as to the level of legal integration that is right for him or her, and it is the client who is in charge of making that decision.

For instance, when it comes time for post-birth proceedings of a parent who is not biologically related to their child, or who is biologically related to a child being born to a surrogate, the client may only tell their attorney that they are seeking to secure parental rights. What the client may not, and often does not, know is that parental rights exist on different levels and in different forms. It is our duty to educate clients on what it means to be only a parent named on a birth certificate, versus what it means to be a legal parent, how to become a legal parent, and what it means to make the choice not to seek a determination of legal parenthood. This kind of client empowerment only happens if we, as the attorneys, take the time to have conversations with our clients and make sure all their questions are answered.

So, what is presumed parenthood?

A presumed parent is a person who is thought to be the parent of a child. This is often the person who is listed as a parent on the child’s birth certificate. It can also be: the woman who gives birth to the child, the spouse of the woman who gives birth to the child, a man who has signed an affidavit stating that he is the father of the child, and any person whose gametes contributed to the creation of the child.

Presumed parents have all the rights of legal parents. They have the right to make decisions about how the child will be raised, how the child will be educated, who may or may not be in the child’s life- to an extent. This right is not absolute because any other party can, at any time, challenge a parent’s right to act as the parent of a child and be in a child’s life in a presumed parent-child relationship. A presumed parent child relationship can be challenged by a biological parent, a biological relative of the parent or of the child, or by the state.

Can there only be one set of presumed parents at a time?

No. There can be more than one set of presumed parents at a time. This may commonly occur in situations where parents use a surrogate to carry their child. If no parentage actions are undertaken and resolved before the birth of the child, that baby will be presumed to be the child of the surrogate and her spouse (if she is married at the time), and of the biological parents. These presumptions will stand until a legal parenthood relationship has been established between the child and its biological parents.

Alright, then how is legal parenthood different?

A legal parent is a person who has been determined, by the state, to have the legal right to act as the parent of the child. Typically this occurs after the court system has heard evidence as to why this person is the parent of this child. The legal parent has the right to make decisions about how the child will be raised, how the child will be educated, who may or may not be in the child’s life, and so on. The legal parent and child also have the legal rights of inheritance under the law, and the legal right to be in each other’s life.

Once a legal parent-child relationship has been established it cannot be challenged- not by a relative, not by someone once presumed to be the parent, and not by the state. Only a court can make a change as to the rights of a parent and child by determining either that the court made an error in finding that there was a parent-child relationship, or by terminating parent rights due to abuse or neglect of the child, or via an adoption of the child by a new parent.

Can there be more than one set of legal parents at a time, like there can be more than one set of presumptive parents at a time?

No. If a court has named you the legal parent of your child, then you and you alone are the legal parent and you and you alone have all the rights and responsibilities that go along with that title. A determination that someone is the legal parent of a child will override all previous presumptions of parenthood.

How can I become the legal parent of my child?

The only way to establish legal parentage is through the court system.

Legal parenthood is frequently established via adoption, during divorce proceedings, or when a person is named the legal guardian of a child.

Legal parenthood is also commonly established when a couple who has used assisted reproductive technologies to conceive a child brings a parentage action under the uniform parentage act. In order to bring a parentage action you must have standing. So who exactly has standing? Well, the biological parents of the child have standing, as well as the woman who gives birth to the child and her spouse if she’s married at the time. The state also has standing to bring a parentage action.

Once a parentage action has been brought a judge will make a determination as to who the legal parent of the child should be, and will sign an order of parentage.

Ok. So, I’ve been named the legal parent of my child in Missouri, but we want to move to Hawaii. Do I have to go through the whole process of being named my child’s legal parent again?

No. A parentage order has full faith and credit in other states under the uniform parentage act. You could move to Hawaii or New York or Iowa or Idaho- you would still be your child’s legal parent- no questions asked.

What does it mean if I’ve never gone to court or asked a judge to name me the legal parent of my child, but my name is on their birth certificate?

All parties listed on birth certificates are the presumed parents of the child. Simply having your name listed on the birth certificate does not make you the legal parent of your child. Birth certificates are documents created by the state to establish the identity of the individual and allow for the collection of statistical information relating to a population- not to create or destroy parentage relationships.

However, the only way that a parent who does not give birth to their child (for instance, the biological parent of a child born via surrogacy) can be listed on that child’s birth certificate is through an order establishing legal parentage. So, if you’re the mother or father of a child who was born to a surrogate and your name is listed on that baby’s birth certificate, this means you have gone to court, obtained a birth order, and you are their legal parent.

What are the benefits of being named a legal parent? What are the drawbacks to seeking an order of legal parentage?

Look, the truth is that most people don’t have a legal parent-child relationship with their parent. Unless you were adopted, given a legal guardian, your parents got divorced, or your mother is not the woman who gave birth to you, chances are your parents are your presumed parents, and not your legal parents. Chances are also good that no one has ever challenged that parent-child relationship or tried to tell your mother that she can’t decide what school to send you to, or your father that he can’t put you on a lactose free diet. Most of the time, a presumed parent relationship is plenty.

However, a legal parent relationship does give you, a parent, more certainty over your ability to raise and protect your child however you see fit. A legal parent-child relationship cannot be challenged except in the limited circumstances outlined below. This may be important if there is someone else in your child’s life who thinks they have a right to that child in some way. (For example, a surrogate, or an egg donor, or a sperm donor.) If you are your child’s legal parent there is no question about it- no one can tell you how to raise them.

That doesn’t mean seeking legal parentage is not without its drawbacks. Money, being one. Court proceedings can be pricey, that’s just the way it is. Legal fees, filing fees, they add up. Court proceedings also take time, and can be stressful. For many couples, the benefits of being named their child’s legal parent outweigh these little burdens, but that is a decision that each individual couple must make.

Many attorneys feel that pursuing an order of legal parentage is the safest and best option, no matter what. Ultimately, though, that is a decision for the client to make. It is not our duty to make that decision for them. Rather, we must provide them with plenty of information, remain available for questions, and stay open to whatever the client decides will best serve their family.

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