Parentage

The following is the report that was provided to the House for H.562 on February 2.  I wrote most of the report, but the Committee shared responsibility in delivering the content.  I covered chapter 1 and 2 on the House Floor and also answered questions during interrogation by House members.  It made sense to have one point person for the interrogations on all parts of this complicated bill.  The bill which is now in the Senate reflects a lot of good work by the members of the Parentage Study Committee, Legislative Council, and the House Judiciary Committee.

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H.562: An act relating to parentage proceedings is the result of the Parentage Study Committee’s work. This body enacted the Committee last session in response to the Vermont Supreme Court’s repeated request, both through testimony and case law, to provide legislative recommendations to modernize Vermont’s parentage laws in recognition of the changing nature of Vermont families.

More than thirty years ago, in 1984, the Vermont legislature enacted the “Parentage Proceedings Act”. It has not been updated since. That law was intended to allow the speedy recovery of child support, not to govern the rights of parentage for children born through alternative reproduction technologies, surrogacy, or to same-sex partners.

State law has simply not kept pace with the myriad of ways in which Vermonters become parents.

Since 1997, the Vermont Supreme Court has grappled with how to address parentage. The court has recognized that parental status can flow from the mutual agreement and action of the parents even in the absence of a marriage or a civil union between the parents or a biological connection between one of the parents and the child. The court has recognized that it is the advancement of reproductive technologies and society’s recognition of lifestyles that have produced families in which a biological and therefore a legal connection is no longer the sole organizing principal.

The court has stated that biology and marriage are not the only indicia of family formation that are worthy of judicial recognition.

Thus, the Supreme Court looked to the General Assembly, stating “Given the complex social and practical ramifications of expanding the classes of persons entitled to assert parental rights… the Legislature is better equipped to deal with the problem. Deference to the Legislature is particularly appropriate in this arena…”

The Court has continued to grapple with similar situations and has noted in numerous opinions that legislative guidance is needed on this issue. The Supreme Court in 2014 stated, “I urge the Legislature to act, and to act with some urgency so that an archaic legal system does not create uncertainty for families and children and inflict real harm on them.”

Subsequently, the Court wrote that the continuing failure to enact a real parentage act is the largest and most significant deficiency in our statutory scheme regulating the rights and responsibilities of family members where the interests of children are involved.

In 2016, another Justice stated that “New legislation concerning parentage would enable the Legislature to identify and communicate its intentions with respect to the various policy issues impacting the best interests of children, would provide clarity for courts struggling with these issues, and would ultimately benefit the children of Vermont.”

Most recently, the Supreme Court stated that “we continue to urge the Legislature to take action and hope that the study commissioned by the legislature leads to the enactment of statutory revision that render this decision and others by this court obsolete. The global perspective, consideration of extensive empirical evidence and public input and accountability of the legislative process are better suited than case-by-case adjudications to developing a coherent law of parental status.”

The House Judiciary Committee with the help of the study committee has taken such action. H.562 gives the courts a process to determine who gets to walk through the courthouse door as a legal parent to then sort out those parental rights and responsibilities. H.562 is modeled after Uniform Parentage Act, which was updated in 2017, and on the Maine Parentage Act, which went into effect on July 1, 2016.

In summary, the bill provides several ways that parentage can be established. One can become a parent by giving birth, adopting, signing a voluntary acknowledgment of parentage, admitting to parentage in a court action, being a de facto parent, a genetic parent, consenting to assisted reproduction or a gestational carrier agreement (also known as surrogacy).

I want to make clear that this bill does not address parental rights and responsibilities, such as who gets custody or visitation.

The vote in committee was 11-0.

Madam Speaker H.562 recognizes our common humanity that parentage is about love, regardless of biology.  I ask the body for its support.

Chapter 1

This chapter provides general provisions that apply to the rest of the Act.

Section 102 includes relevant definitions.

Section 103 makes clear that the bill is not about parental rights and responsibilities. Rather, the bill sets forth standards to establish who can be a legal parent. Once one knows who the legal parents are, courts turn to other provisions of Vermont law to determine parental rights and responsibilities such as custody, visitation, and child support.

Sections 104 through 110 provide procedural details regarding a judicial parentage action, including who can file a lawsuit seeking adjudication of parentage, who is to be provided notice of the proceeding, how the notice is to be provided, personal jurisdiction, venue, and joinder.

While a parentage action is pending, section 111 provides that a Court can issue interim orders for child support. So, as the Court is figuring out who the legal parents are, the existing child support obligations will continue.

Section 112 is the first substantive pathway to parentage that the bill includes. If a case is brought in court to establish that an individual is a parent, say by requiring a genetic test of that individual, the person can simply admit parentage. The Court can then decide to issue an order adjudicating that person as a parent.

Section 114 explains what is required in a court order establishing parentage.

Section 115 establishes who is bound by the parentage determination. Under certain circumstances a child is not bound by the determination.

Section 115 also establishes how and when a person can challenge an adjudication of parentage. Of note, a person who was not a party to and did not receive notice of an adjudication can challenge it within two years of the date of the adjudication. In the interest of stability for the child, the Court can allow the challenge to proceed only if it finds that it is in the best interest of the child. This is an overriding theme of this bill – it seeks to ensure the best interest of the child, including having stability in a parent-child relationship.

So, Chapter 1 is for the most part about the procedures governing parentage adjudications. We start to get more into the substance in Chapter 2.

Chapter 2

Section 201 lists nine ways a person can legally become a parent. Some of these are further addressed later in this bill.

  1. Giving birth to a child, unless otherwise provided in chapter 8 of this title. Chapter 8 relates to a gestational carrier arrangement, or surrogacy. In other words, having someone else bare one’s child.
  2. Adoption pursuant to Title 15A, which is not further addressed in this bill.
  3. A voluntary acknowledgement of parentage, which is covered by Chapter 3 and will be discussed further.
  4. An adjudication based on an admission of parentage under section 112 – already discussed.
  5. A presumption of parentage under chapter 4. Further details about this pathway and the rest of the ways to establish parentage will be provided shortly.
  6. An adjudication of de facto parentage under chapter 5.

Briefly, what is a de facto parent?  A de facto parent is a person who has been found by a court to have assumed, on a day-to-day basis, the role of the parent, fulfilling both the child’s physical and psychological need for care and affection, and who has assumed that role for a substantial period.

  1. An adjudication of genetic parentage under chapter 6.
  2. Consent to assisted reproduction under chapter 7.
  3. Consent to a gestational carrier agreement by the intended parent.

Section 202 clearly states the public policy of Vermont that “every child has the same rights under law as any other child without regard to the marital status or gender of the parents or the circumstances of the child’s birth.”

As provided in section 203, once parentage is established in one of the myriad ways under this title, the parental rights and duties of other provisions of law apply.

Section 206 is a critical provision in the bill and is cross referenced in a number of other sections. The Court is to look to this section to sort out competing claims of parentage. And what the Court is to consider are factors for determining the best interests of the child. For example, the Court should consider:

The age of the child

Length of time during which each person assumed the role of parent of the child

The nature of the relationship between the child and each person

The harm to the child if the relationship between the child and each person is not recognized.

The basis for each person’s claim to parentage.

And other factors arising from the disruption of the relationship between the child and each person or the likelihood of other harm to the child.

If the Court finds that it would be in the best interest of the child, it can find that the child has more than two parents, meaning that more than two people could share in the parental rights and responsibilities.

A few comments about this concept.

First, a court is not required to find that there are three parents, though it has discretion to do so.

Second, the circumstances in which there can be a finding of more than two parents are relatively limited. Those circumstances will be addressed in the explanation of the relevant chapters of this title.

The bottom line. When we look to intent and conduct, instead of only biology or marriage, to create legal parent-child relationships, it becomes clear that there may be more than two people who are candidates for the legal title “parent.”   The court may find that it is sometimes in the best interest of the child for the child to have more than two legal parents. This is entirely consistent with formation of some modern families.

Chapter 3 – Voluntary Acknowledgement of Parentage

Chapter 3 deals with voluntary acknowledgements of parentage. Vermont law already has a provision related to this topic, found at 15 VSA s 307. But H.562 provides a much more detailed process than current law for establishing parentage through such acknowledgements.

Vermont enacted its Voluntary Acknowledgement of Parentage statute in 1997 as part of a larger federal mandate to stream-line the child support process. Such Acknowledgements would provide a relatively quick administrative route to parentage and child support, critical when an increasing percentage of children are born out of wedlock. Currently, over 40% of Vermont children are born out of wedlock.

Under current law, Voluntary Acknowledgements of Parentage forms signed by unwed biological parents have the legal effect of a judicial determination of parentage.

H.562 modifies current law in important ways. It provides, in section 301 that the following persons may sign an acknowledgement of parentage:

1) a person giving birth to the child

2) a person who is alleged to be the genetic parent of the child

3) a person who is an intended parent pursuant to chapter 7 or 8 (more on that later)

4) a presumed parent pursuant to chapter 4 of this title.

The first two categories are the biological parents – the traditional unwed parent scenario.

Number 3 involves individuals using artificial reproductive technologies or surrogacy.

Number 4 allowing presumed parents to sign Acknowledgements could involve situations where a signatory is not a biological parent. For example, a person who is not a biological parent can be deemed a presumed parent if married to the birth parent at the time of the child’s conception or birth. More on presumed parents when we get to Chapter 4 of this title.

In an effort to avoid confusion over who is and isn’t a parent, section 303 provides that a person who is a presumed parent or alleged genetic parent can sign a denial of parentage under certain conditions.

Section 305 confirms that a signed Voluntary Acknowledgement of Parentage is enough to establish legal parentage, without the necessity of a judicial adjudication.

It is a quick administrative route to parentage. It requires filling out a form to establish parentage of children by agreement outside the court system. In short, the Voluntary Acknowledgement of Parentage acts as an adjudication of parentage.

There are, however, some ways to get out of a signed Acknowledgement or denial or to challenge an Acknowledgement. Under section 307, a signatory can rescind an acknowledgement or denial within 60 days after the effective date of the acknowledgement or denial.

After the rescission period, under section 308, a signatory can challenge the Acknowledgement or Denial within a year if it was based on fraud, duress, coercion, threat of harm, or material mistake of fact.

Under the same section, a person who is not a signatory can challenge the acknowledgement within two years of the effective date of the acknowledgement or within two years of discovery of the person’s potential parentage.

Procedures for rescissions or challenges are specified in section 309, and the content of the Acknowledgement and Denial forms are set forth in section 310.

Chapter 4 – Presumed Parentage

More and more, the Vermont courts have been facing situations in which a couple is unmarried and do not sign a Voluntary Acknowledgement of Parentage. Both adults live with the child, care for and support the child, and hold the child out as their own. They then break up and have a dispute over parentage and parental rights and responsibilities. Under current law, the courts have been prevented from bestowing the status of parent on the non-birth, non-adoptive parent. As a result, the child, who has come to love and rely on this adult, is denied the care and support of this parent figure.

Chapter 4 modernizes Vermont’s parentage laws to address these kinds of situations. Section 401 provides that a person is presumed to be a parent of a child if one of four situations exists:

(1) the person is married to the birth parent at the time of birth,

(2) the person was married to the birth parent at the time of conception,

(3) the person married the birth parent after the child was born and is named on the birth certificate, or

(4) the person resided in the same household with the child for the first two years of the child’s life, and the person and another parent of the child openly held out the child as the person’s child.

This last category of Section 401 ensures protection and recognition for the children of nonmarital couples who have jointly planned for and parented those children.

The presumption of parentage is rebuttable under section 402. It can be invalidated in certain situations.

For example, in a situation where a person is married to the birth parent at the time of birth, that person is a presumed parent. But, let’s say that the child was conceived in an extra-marital affair. That other genetic parent could challenge the presumption within two years of finding out about the child’s birth.   If the Court finds that the person is the genetic parent of the child, it is not allowed to disestablish the presumed parent. In this situation, there could be more than two legal parents.

Unfortunately there are situations where an individual who is abusive to the birth parent or the child can be deemed a presumed parent under the fourth category of presumed parentage (a person who resided in the same household with the child for the first two years of the child’s life and the child was openly held out as the person’s child). To address such a situation, section 402 allows a parent to challenge the presumption of parentage at any time if duress, coercion, or threat of harm caused the parent to hold out the child as the other person’s child.

One final point about presumptive parents. As section 403 provides, if more than one presumption arises, a Court looks to section 206 to address the competing claims of parentage by analyzing the best interest of the child. The Court in that situation may find that there are more than two legal parents.

Chapter 5

Chapter 5 provides another significant improvement to current Vermont parentage law. It allows a person to be adjudicated a parent if the person shows by clear and convincing evidence that he or she has “undertaken a permanent, unequivocal, committed, and responsible parental role,” in the child’s life and that it is in the child’s best interest to declare this person to be a parent of the child.

Being able to establish de facto parentage to a court ensures that a child can maintain a parent/child relationship with a person who has functioned as the child’s parent. This Chapter balances the needs of children and adults. On the one hand, it provides safeguards for existing legal parents by imposing heightened standing and proof requirements to gain de facto parent status. On the other hand, it allows courts to protect children from the termination of an important adult relationship when those requirements are met.

There are two situations that the Chapter addresses:

First, in the case where there is only one recognized legal parent, a person seeking to establish de facto parentage has two hurdles to overcome. As provided in section 502, the person must first show standing to petition the court for de facto parentage status.   If standing is established, the person has to establish by clear and convincing evidence the long list of requirements in section 501.

Second, in the case where there are two recognized legal parents and a third person is seeking to establish de facto parentage, three hurdles must be cleared: the standing requirement of section 502, the factors listed in section 501, AND the best interest of the child factors listed in section 206. In this scenario, the Court in its analysis under section 206 may find that it is in the best interest of the child to have more than two legal parents.

In both these scenarios, there may be a need to protect against a perpetrator of abuse establishing de facto parentage. Thus, Section 501(a)(2) provides that a parent may show that any fostering or bonding of a dependent relationship occurred because of duress, coercion, or threat of harm. If that showing is made, the Court would reject the petition to become a de facto parent.

Other states have recognized some form of de facto parents, including Massachusetts, New Hampshire, Texas, North and South Carolina, California, Colorado, Kansas, and New Mexico. Most recently, Delaware and Maine have created a de facto parentage status by enacting a version of the Uniform Parentage Act.

Chapter 6

Chapter 6 governs genetic testing to establish parentage. It is a more detailed replacement of current Vermont law, which is found at 15 VSA s 304.

As with current law, the subchapter identifies who can request genetic testing, who pays for it, how the results are to be used in court, the standards for adjudicating parentage based on genetic tests, and the circumstances under which the court can deny a request for genetic testing.

Chapter 7 – Parentage by Assisted Reproduction

It is becoming more and more common for Vermonters to use assisted reproduction to help them have a child. Since the birth of the first in vitro fertilization baby in 1978, exponential advances in reproductive medicine have made parenthood possible for people who would otherwise be unable to achieve pregnancy. Northeastern Reproductive Medicine in Colchester, Vermont, has employed Assisted Reproductive Technologies to help Vermont families achieve more than 470 pregnancies in the last three years alone. These numbers do not include families who utilize the University of Vermont Medical Center, and Vermont citizens who travel out of state for fertility treatments.

The use of such technologies, including the use of third parties such as sperm and egg donors, and gestational carriers, has created a host of legal issues that need to be addressed by the legislature. Vermont’s statutes have not been updated to address parentage in the age of assisted reproduction. H.562 fills this void.

Chapter 7 recognizes families formed using Assisted Reproductive Technologies. It addresses the rights of the intended parents and the “donor” (a person who provides gametes or embryos). It also provides for what happens if the intended parents divorce or one of them dies while the procedure is underway.

The chapter also allows for the intended parents to obtain a birth order, either before or after the child’s birth, declaring the intended parents to be the legal parents of the child.

Chapter 8 – Parentage by Gestational Carrier Agreement

Chapter 8 addresses a modern method of becoming parents: agreements between intended parents and a gestational carrier – that is, a person who agrees to carry an embryo to term for intended parents, sometimes referred to as a surrogate.

This Chapter contains provisions to protect the rights of children, gestational carriers, and intended parents. It spells out the requirements for eligibility to be a gestational carrier and an intended parent, as well as the necessary elements for an enforceable gestational carrier agreement. It also provides for the intended parents to obtain a pre-birth order of parentage, effective upon the birth of the child.

The Chapter allows for the gestational carrier to be paid a reasonable consideration in addition to reasonable expenses. It also clearly ensures that the gestational carrier has total control over her body.

Finally, the Chapter provides an avenue for consideration of genetic testing results if there is a basis for believing that the child might be genetically related to the surrogate.

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