January 5, 2001

The Committee that acted for the National Conference of Commissioners on Uniform State Laws in revising the Uniform Parentage Act was as follows:

HARRY L. TINDALL, 1300 Post Oak Boulevard, Suite 2200, Houston, TX 77056-3014, Chair

JACK DAVIES, 687 Woodridge Drive, Mendota Heights, MN 551118-1809

FRANK W. DAYKIN, 4745 Giles Way, Carson City, NV 89704-9158, Committee on Style

Liaison

GAIL H. HAGERTY, P.O. Box 1013, 514 E. Thayer Avenue, Bismarck, ND 58502-1013

LYLE W. HILLYARD, 175 E. 100 N., Logan, UT 84321-4688

PETER K. MUNSON, P.O. Box 1949, 123 S. Travis Street, Sherman, TX 75091-1949

JAMES C. NELSON, Montana Supreme Court, 215 N. Sanders Street, Room 425,

P.O. Box 20031, Helena, MT 59601-4522

ARTHUR H. PETERSON, 350 N. Franklin Street, Juneau, AK 99801-1148, Enactment Plan

Coordinator

ELWAINE F. POMEROY, 1415 S.W. Topeka Boulevard, Topeka, KS 66612-1818

JOHN J. SAMPSON, University of Texas Law School, 727 E. Dean Keeton Street, Austin,

TX 78705-3299, Reporter

JOHN L. McCLAUGHERTY, P.O. Box 553, Charleston, WV 25332-0533, President

ROBERT C. ROBINSON, P.O. Box 568, 12 Portland Pier, Portland, ME 04112-0568,

Division Chair

NINA VITEK, 222 E. Mason Street, 2nd Floor, Milwaukee, WI 53202-3602

FRED H. MILLER, University of Oklahoma, College of Law, 300 Timberdell Road, Norman,

OK 73019, Executive Director

WILLIAM J. PIERCE, 1505 Roxbury Road, Ann Arbor, MI 48104, Executive Director Emeritus

RICHARD K. BAYS, National Association for Public Health Statistics and Information Systems,

1100 W. 49th Street, Austin, TX 78756-3191

MARY LOUISE FELLOWS, American Law Institute, 338 Law Center, Minneapolis, MN 55455

AMI JAEGER, Bio Law Group, 7 Avenue Vista Grande, Suite 7B-205, Santa Fe, NM 87505

GEORGE C. MAHA, Laboratory Corp. of America Holdings, 1440 York Court Extension,

Burlington, NC 27215

SUSAN NOTAR, Federal Office of Child Support Enforcement, 370 L'Enfant Promenade SW,

Washington, DC 20447

WALLACE MURRAY, National District Attorneys' Association, 206 10th Avenue S.E.,

Olympia, WA 98501-1333

SUSAN F. PAIKIN, Eastern Regional Interstate Child Support Association, 13 Deer Run, Newark, DE 19711-2424

PAULA ROBERTS, Center for Law & Social Policy, 1616 P Street NW, Suite 150, Washington,

DC 20036-1492

MARILYN RAY SMITH, National Child Support Enforcement Association, 141 Portland Street,

10th Floor, Cambridge, MA 02139-1937

ELLEN A. YARRELL, American Academy of Matrimonial Lawyers, 1900 St. James Place,

Suite 850, Houston, TX 77056

SECTION 101. SHORT TITLE. 4

SECTION 102. DEFINITIONS 4

SECTION 103. SCOPE OF [ACT]; CHOICE OF LAW 10

SECTION 104. COURT OF THIS STATE 11

SECTION 105. PROTECTION OF PARTICIPANTS 12

SECTION 106. DETERMINATION OF MATERNITY 12

SECTION 201. ESTABLISHMENT OF PARENT-CHILD RELATIONSHIP 13

SECTION 202. NO DISCRIMINATION BASED ON MARITAL STATUS 14

SECTION 203. CONSEQUENCES OF ESTABLISHMENT OF PARENTAGE 15

SECTION 204. PRESUMPTION OF PATERNITY IN CONTEXT OF MARRIAGE 16

SECTION 301. ACKNOWLEDGMENT OF PATERNITY 20

SECTION 302. EXECUTION OF ACKNOWLEDGMENT OF PATERNITY 20

SECTION 303. DENIAL OF PATERNITY 22

SECTION 304. RULES FOR ACKNOWLEDGMENT AND DENIAL OF PATERNITY 23

SECTION 305. EFFECT OF ACKNOWLEDGMENT OR DENIAL OF PATERNITY 24

SECTION 306. NO FILING FEE 24

SECTION 307. PROCEEDING FOR RESCISSION 25

SECTION 308. CHALLENGE AFTER EXPIRATION OF PERIOD FOR RESCISSION 25

SECTION 309. PROCEDURE FOR RESCISSION OR CHALLENGE 26

SECTION 310. RATIFICATION BARRED 27

SECTION 311. FULL FAITH AND CREDIT 27

SECTION 312. FORMS FOR ACKNOWLEDGMENT AND DENIAL OF PATERNITY 28

SECTION 313. RELEASE OF INFORMATION 28

[SECTION 314. ADOPTION OF RULES] 29

SECTION 401. ESTABLISHMENT OF REGISTRY 31

SECTION 402. REGISTRATION FOR NOTIFICATION 31

SECTION 403. NOTICE OF PROCEEDING 33

SECTION 404. TERMINATION OF PARENTAL RIGHTS: CHILD UNDER ONE YEAR OF AGE 33

SECTION 405. TERMINATION OF PARENTAL RIGHTS: CHILD AT LEAST ONE YEAR OF

AGE 34

SECTION 411. REQUIRED FORM 35

SECTION 412. FURNISHING OF INFORMATION; CONFIDENTIALITY 36

SECTION 413. PENALTY FOR RELEASING INFORMATION 37

SECTION 414. RESCISSION OF REGISTRATION 37

SECTION 415. UNTIMELY REGISTRATION 37

SECTION 416. FEES FOR REGISTRY 37

SECTION 421. SEARCH OF APPROPRIATE REGISTRY 38

SECTION 422. CERTIFICATE OF SEARCH OF REGISTRY 38

SECTION 423. ADMISSIBILITY OF REGISTERED INFORMATION 39

SECTION 501. SCOPE OF ARTICLE 40

SECTION 502. ORDER FOR TESTING 40

SECTION 503. REQUIREMENTS FOR GENETIC TESTING 42

SECTION 504. REPORT OF GENETIC TESTING 44

SECTION 505. GENETIC TESTING RESULTS; REBUTTAL 45

SECTION 506. COSTS OF GENETIC TESTING 47

SECTION 507. ADDITIONAL GENETIC TESTING 48

SECTION 508. GENETIC TESTING WHEN SPECIMENS NOT AVAILABLE 48

SECTION 509. DECEASED INDIVIDUAL 49

SECTION 510. IDENTICAL BROTHERS 50

SECTION 511. CONFIDENTIALITY OF GENETIC TESTING 51

SECTION 601. PROCEEDING AUTHORIZED 53

SECTION 602. STANDING TO MAINTAIN PROCEEDING 54

SECTION 603. PARTIES TO PROCEEDING 55

SECTION 604. PERSONAL JURISDICTION 56

SECTION 605. VENUE 57

SECTION 606. NO LIMITATION: CHILD HAVING NO PRESUMED, ACKNOWLEDGED,

OR ADJUDICATED FATHER 57

SECTION 607. LIMITATION: CHILD HAVING PRESUMED FATHER 58

SECTION 608. AUTHORITY TO DENY MOTION FOR GENETIC TESTING 60

SECTION 609. LIMITATION: CHILD HAVING ACKNOWLEDGED OR ADJUDICATED

FATHER 62

SECTION 610. JOINDER OF PROCEEDINGS 63

SECTION 611. PROCEEDING BEFORE BIRTH 64

SECTION 612. CHILD AS PARTY; REPRESENTATION 64

SECTION 621. ADMISSIBILITY OF RESULTS OF GENETIC TESTING; EXPENSES 65

SECTION 622. CONSEQUENCES OF DECLINING GENETIC TESTING 67

SECTION 623. ADMISSION OF PATERNITY AUTHORIZED 67

SECTION 624. TEMPORARY ORDER 68

SECTION 631. RULES FOR ADJUDICATION OF PATERNITY 69

SECTION 632. JURY PROHIBITED 70

SECTION 633. HEARINGS; INSPECTION OF RECORDS 71

SECTION 634. ORDER ON DEFAULT 71

SECTION 635. DISMISSAL FOR WANT OF PROSECUTION 71

SECTION 636. ORDER ADJUDICATING PARENTAGE 72

SECTION 637. BINDING EFFECT OF DETERMINATION OF PARENTAGE 73

SECTION 701. SCOPE OF ARTICLE 77

SECTION 702. PARENTAL STATUS OF DONOR 77

SECTION 703. HUSBAND'S PATERNITY OF CHILD OF ASSISTED REPRODUCTION 78

SECTION 704. CONSENT TO ASSISTED REPRODUCTION 79

SECTION 705. LIMITATION ON HUSBAND'S DISPUTE OF PATERNITY 80

SECTION 706. EFFECT OF DISSOLUTION OF MARRIAGE 81

SECTION 707. PARENTAL STATUS OF DECEASED SPOUSE 82

SECTION 801. GESTATIONAL AGREEMENT AUTHORIZED 87

SECTION 802. REQUIREMENTS OF PETITION 89

SECTION 803. HEARING TO VALIDATE GESTATIONAL AGREEMENT 90

SECTION 804. INSPECTION OF RECORDS 93

SECTION 805. EXCLUSIVE, CONTINUING JURISDICTION 94

SECTION 806. TERMINATION OF GESTATIONAL AGREEMENT 94

SECTION 807. PARENTAGE UNDER VALIDATED GESTATIONAL AGREEMENT 96

SECTION 808. GESTATIONAL AGREEMENT: EFFECT OF SUBSEQUENT MARRIAGE 97

SECTION 809. EFFECT OF NONVALIDATED GESTATIONAL AGREEMENT] 97

SECTION 901. UNIFORMITY OF APPLICATION AND CONSTRUCTION 99

SECTION 902. SEVERABILITY CLAUSE 99

SECTION 903. TIME OF TAKING EFFECT 99

SECTION 904. REPEAL 99

SECTION 905. TRANSITIONAL PROVISION 100

APPENDIX: FEDERAL IV-D STATUTE RELATING TO PARENTAGE 101

The National Conference of Commissioners on Uniform State Laws has addressed the subject of parentage throughout the 20th Century. As early as 1922, the Conference promulgated the "Uniform Illegitimacy Act," followed by the "Uniform Blood Tests To Determine Paternity Act" in 1952, the "Uniform Paternity Act" in 1960, and certain provisions in the "Uniform Probate Code" in 1969. The "Uniform Illegitimacy Act" was withdrawn by the Conference and none of the other Acts were widely adopted. As of June 1973, the Blood Tests to Determine Paternity Act had been enacted in nine States, the "Uniform Paternity Act" in four, and the "Uniform Probate Code" in five.

The most important Uniform Act addressing the special needs of the nonmarital child was the Uniform Parentage Act approved in 1973 [hereafter referred to as UPA (1973)]. As of December, 2000, UPA (1973) is in effect in 19 States stretching from Delaware to California; in addition, many other States have enacted significant portions of it. Among the many notable features of this landmark Act is the declaration of equality for all children without regard to marital status of the parents of a particular child. In addition, the Act established a set of rules for presumption of parentage, shunned the term "illegitimate," and chose instead to employ the term "child with no presumed father." The Act has contributed much to bring about a more enlightened approach to sensitive issues that can divide people of goodwill.

UPA (1973) had its genesis in a law review article, Harry D. Krause, A Proposed Uniform Act on Legitimacy, 44 Tex. L. Rev. 829 (1966). Professor Krause followed with a pathfinding book, Illegitimacy: Law and Social Policy (1971), and then went on to serve as the reporter for UPA (1973). When work on the Act began, the notion of substantive legal equality of children regardless of the marital status of their parents seemed revolutionary. See Krause, Equal Protection for the Illegitimate, 65 Mich. L. Rev. 477 (1967). Even though the Conference had put itself on record in favor of equal rights of support and inheritance in the Paternity Act and the Probate Code, the law of many States continued to differentiate very significantly in the legal treatment of marital and nonmarital children. When UPA (1973) was promulgated, the States needed new legislation on this subject because the bulk of then-current law on the subject of children born out of wedlock had already been declared to be unconstitutional by the United States Supreme Court or was subject to grave constitutional doubt.

Case law has not always reached consistent results in construing UPA (1973). Moreover, widely differing treatment on subjects not dealt with by the Act has been common. For example, California courts have held that a nonmarital father does not have standing to sue an intact family to assert his rights of fatherhood. Another UPA (1973) State, Colorado, has declared that under its state constitution the father may not be denied such rights. Texas, which has adopted many of the provisions of UPA (1973), reached a similar conclusion. Similarly, a judgment's binding effect on the child or on others seeking to claim a benefit of the judgment or to attack the judgment collaterally is confused in the case law. Adding to the confusion is the fact that UPA (1973) is entirely silent regarding the relationship between a divorce and a determination of parentage. Finally, the incredible scientific advances in parentage testing since 1973 warrant a thoroughgoing revision of the Act.

Beginning in the 1980s, States began to adopt paternity registries in an attempt to deal with the risk of a man's subsequent claim of paternity after the mother relinquishes a child for adoption. The Conference adopted the Uniform Putative and Unknown Fathers Act in 1988 to deal with the rights of such men, but UPUFA has not been enacted by any State.

In addition, in 1988, the Conference also adopted the Uniform Status of Children of Assisted Conception Act. Assisted reproduction and gestational agreements became commonplace in the 1990s, long after the promulgation of UPA (1973). The USCACA resembled a Model Act more than a Uniform Act because it provided two opposing options regarding "gestational agreements." To date, only two States have enacted USCACA, each choosing a different option.

With the promulgation of the Uniform Parentage Act (2000), all of the earlier Uniform Acts dealing with parentage have been withdrawn by the Conference, leaving the Uniform Parentage Act (2000) as the single product of the Conference dealing with the subject. In brief outline, UPA (2000) is structured as follows:

Article 1, General Provisions, adds many new definitions to clarify this complex subject and adapt the Act to scientific developments. Article 2, Parent-Child Relationship, will look familiar to past users of UPA (1973) because it continues a number of provisions with little or no change. Article 3, Voluntary Acknowledgment of Paternity, is entirely new and is driven by federal mandates that States adopt nonjudicial means to achieve early determination of paternity. Article 4, Registry of Paternity, is entirely new and incorporates a tightly integrated registry law to deal with the rights of a man who is neither an acknowledged, presumed or adjudicated father. Article 5, Genetic Testing, comprehensively covers that subject in ten separate sections [UPA (1973) had one section on the subject]. Article 6, Proceeding to Adjudicate Parentage, is the traditional litigation section. Article 7, Child of Assisted Reproduction, recodifies USCACA (1988) without substantial change. Article 8, Gestational Agreement, also follows USCACA (1988) in large part.

UPA (1973) contained a wide variety of other substantive provisions, such as those for setting the level of support, the enforcement of judgments, and deals with related issues such as custody. These subjects have been left out of UPA (2000) because other state law adequately provides for such matters.

Finally, Uniform Parentage Act (2000) is drafted to be consistent with the provisions of two other Uniform Acts of great significance, namely the Uniform Interstate Family Support Act [UIFSA (1996)] and the Uniform Child Custody Jurisdiction and Enforcement Act [UCCJEA (1997)].

SECTION 101. SHORT TITLE

SECTION 102. DEFINITIONS

SECTION 103. SCOPE OF [ACT]; CHOICE OF LAW

SECTION 104. COURT OF THIS STATE

SECTION 105. PROTECTION OF PARTICIPANTS

SECTION 106. DETERMINATION OF MATERNITY

SECTION 101. SHORT TITLE. This [Act] may be cited as the Uniform Parentage Act.

SECTION 102. DEFINITIONS. In this [Act]:

(1) "Acknowledged father" means a man who has established a father-child relationship under [Article] 3.

(2) "Adjudicated father" means a man who has been adjudicated by a court of competent jurisdiction to be the father of a child.

(3) "Alleged father" means a man who alleges himself to be, or is alleged to be, the genetic father or a possible genetic father of a child, but whose paternity has not been determined. The term does not include:

(A) a presumed father;

(B) a man whose parental rights have been terminated or declared not to exist; or

(C) a male donor.

(4) "Assisted reproduction" means a method of causing pregnancy other than sexual intercourse. The term includes:

(A) intrauterine insemination;

(B) donation of eggs;

(C) donation of embryos;

(D) in-vitro fertilization and transfer of embryos; and

(E) intracytoplasmic sperm injection.

(5) "Child" means an individual of any age whose parentage may be determined under this [Act].

(6) "Commence" means to file the initial pleading seeking an adjudication of parentage in [the appropriate court] of this State.

(7) "Determination of parentage" means the establishment of the parent-child relationship by the signing of a valid acknowledgment of paternity under [Article] 3 or adjudication by the court.

(8) "Donor" means an individual who produces eggs or sperm used for assisted reproduction, whether or not for consideration. The term does not include:

(A) a husband who provides sperm, or a wife who provides eggs, to be used for assisted reproduction by the wife; or

(B) a woman who gives birth to a child by means of assisted reproduction [, except as otherwise provided in [Article] 8].

(9) "Ethnic or racial group" means, for purposes of genetic testing, a recognized group that an individual identifies as all or part of the individual's ancestry or that is so identified by other information.

(10) "Genetic testing" means an analysis of genetic markers to exclude or identify a man as the father or a woman as the mother of a child. The term includes an analysis of one or a combination of the following:

(A) deoxyribonucleic acid; and

(B) blood-group antigens, red-cell antigens, human-leukocyte antigens, serum enzymes, serum proteins, or red-cell enzymes.

[(11) "Gestational mother" means a woman who gives birth to a child under a gestational agreement.]

(12) "Intended parents" means individuals who enter into an agreement providing that they will be the parents of a child born to a gestational mother by means of assisted reproduction, whether or not either of them has a genetic relationship with the child.

(13) "Man" means a male individual of any age.

(14) "Parent" means an individual who has established a parent-child relationship under Section 201.

(15) "Parent-child relationship" means the legal relationship between a child and a parent of the child. The term includes the mother-child relationship and the father-child relationship.

(16) "Paternity index" means the likelihood of paternity calculated by computing the ratio between:

(A) the likelihood that the tested man is the father, based on the genetic markers of the tested man, mother, and child, conditioned on the hypothesis that the tested man is the father of the child; and

(B) the likelihood that the tested man is not the father, based on the genetic markers of the tested man, mother, and child, conditioned on the hypothesis that the tested man is not the father of the child and that the father is of the same ethnic or racial group as the tested man.

(17) "Presumed father" means a man who, by operation of law under Section 204, is recognized as the father of a child until that status is rebutted or confirmed in a judicial proceeding.

(18) "Probability of paternity" means the measure, for the ethnic or racial group to which the alleged father belongs, of the probability that the man in question is the father of the child, compared with a random, unrelated man of the same ethnic or racial group, expressed as a percentage incorporating the paternity index and a prior probability.

(19) "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

(20) "Signatory" means an individual who authenticates a record and is bound by its terms.

(21) "State" means a State of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.

(22) "Support-enforcement agency" means a public official or agency authorized to seek:

(A) enforcement of support orders or laws relating to the duty of support;

(B) establishment or modification of child support;

(C) determination of parentage; or

(D) location of child-support obligors and their income and assets.

Subsection (1) responds to a 1996 federal mandate encouraging States to adopt nonjudicial means to achieve an early determination of paternity. The term "acknowledged father" is given a relatively narrow meaning, rather than that previously accorded the term. Only a man who acknowledges paternity of a child in accordance with the formal requirements established in Article 3 qualifies as an "acknowledged father," which is the equivalent of an adjudication of paternity. A man who asserts paternity in an informal matter is an "alleged father" as defined in subsection (3), which is derived from the UPUFA § 1(2).

Subsection (3) is derived from the UPUFA § 1(1), although much of the terminology has been changed. Specifically, the term "putative father" has been replaced by the broader term "alleged father." According to Webster's, "putative" means "commonly accepted or supposed." Clearly, many "alleged fathers" do not fit that definition. Further, UPUFA chose the term "biological father" over more ambiguous "natural father." Because one woman may be the genetic mother of a child while another woman is the gestational mother, for consistency the term "genetic father" was substituted for "biological." No definition is supplied for "unknown father," the term being self-defining.

Subsection (6) is derived from the UCCJEA (1997) § 102(5).

Subsection (9) defines the "ethnic or racial group" of the individual being tested only for purposes of the genetic testing. The genetic tests themselves do not determine the race or ethnic group of the individual; rather, for the individual who is not excluded, the race or ethnic group provided is used in the paternity calculations. This is done because the use of the race or ethnic group of the tested individual gives the most conservative calculations, that is, those most favoring non-paternity.

Subsection (10) contemplates that the genetic testing used in paternity testing is broad and includes all of the traditional genetic tests, such as blood types and HLA (Human Leukocyte Antigen), as well as newer DNA technologies. In the past the term "blood test" was commonly applied to paternity testing. However, this usage actually referred to the sample collected; in fact, the tests were genetic tests performed on blood samples. The Act uses the scientific term "deoxyribonucleic acid." This is to accommodate the changes in technology used to evaluate the DNA. Early DNA testing involved RFLP technology (Restriction Fragment Length Polymorphism), followed by PCR techniques (Polymerase Chain Reaction); these may be replaced by newer technology, such as SNP (Single Nucleotide Polymorphisms). The type of DNA technology to be employed is best left to scientific bodies, such as accreditation agencies, see Section 503(a), infra.

Subsection (11) is derived from USCACA (1988) § 1(4), which employed the now-discarded term "surrogate" to define the same factual circumstances dealt with in Article 8, Gestational Agreement, infra. For purposes of this Act, a woman giving birth to a child, a.k.a. "birth mother," is distinguished from a "gestational mother." The latter is narrowly defined to restrict the term to situations in which a gestational agreement is validated under Article 8. If Article 8 not enacted, this definition should be omitted.

Subsection (12) is derived from the USCACA (1988) § 1(3). The term "intended parents" appears in two widely separated portions of the Act. Article 8, Gestational Agreement, is entirely bracketed to inform state legislatures that enactment of the article is optional insofar as the recommendation of the Conference is concerned. This article spells out in significant detail the rights and obligations of the intended parents stemming from a gestational agreement. If a State decides not to enact Article 8, it should enact § 103(d), infra. That bracketed provision deals with the status of intended parents in the absence of Article 8.

Subsection (13) is derived from the UPUFA § 1(1). Defining "man" to include all male humans eliminates the connotation of adulthood, thereby satisfying the obvious need for the Act to cover under-age progenitors as well as adults. Although objection to calling a 14-year-old father a "man" was raised when UPUFA was considered by the Conference, for purposes of procreation such an individual is a man.

Subsection (15) is derived from the UPA (1973) § 1. A wide variety of the rights and duties flowing to and from parents and children are found in many other laws of this State.

Subsection (16) defines a complex concept, the "paternity index." Note that the definition includes statistical measures of the mother and tested man. The tested man may be an alleged father, or any other potential biological father. In fact, under appropriate circumstances Article 5 provides for testing without samples from the mother or the alleged father. In these cases the expert statistically reconstructs the missing potential mother or biological father from genetic testing of samples from their relatives. Therefore the definition is correct even in cases involving a missing parent.

Subsection (19) is derived from the Uniform Electronic Transfer Act § 102(13), which establishes a standard for either paper or electronic record keeping.

SECTION 103. SCOPE OF [ACT]; CHOICE OF LAW.

(a) This [Act] governs every determination of parentage in this State.

(b) The court shall apply the law of this State to adjudicate the parent-child relationship. The applicable law does not depend on:

(1) the place of birth of the child; or

(2) the past or present residence of the child.

(c) This [Act] does not create, enlarge, or diminish parental rights or duties under other law of this State.

[(d) This [Act] does not authorize or prohibit an agreement between a woman and intended parents in which the woman relinquishes all rights as a parent of a child conceived by means of assisted reproduction, and which provides that the intended parents become the parents of the child. If a birth results under such an agreement and the agreement is unenforceable under [the law of this State], the parent-child relationship is determined as provided in [Article] 2.]

UPA (2000), in its entirety, is drafted to conform to the mandate of 42 U.S.C. § 666(a)(5)(A), which requires States to provide for parentage proceedings at any time before a child attains 18 years of age on penalty of forfeiture of federal funds that subsidize child support enforcement by the State, see Appendix: Federal IV-D Statute Relating to Parentage, infra.

Subsection (b) is derived from the UIFSA (1996) § 303 and UPA (1973) § 8(b). This section simplifies choice of law principles; the local court is directed to apply local law. If in fact this State is an inappropriate forum, dismissal for forum non-conveniens may be appropriate.

Subsection (d) is bracketed. If a State enacts Article 8, this subsection should be omitted. If a State does not enact Article 8, this subsection should be included to make clear that this Act does not affect other law of the jurisdiction on the subject.

SECTION 104. COURT OF THIS STATE. The [designate] court is authorized to adjudicate parentage under this [Act].

Source: Uniform Parentage Act § 8(a).

The court having jurisdiction over parentage proceedings under this Act should be identified here. Although a proceeding to determine parentage is most often associated with an action to establish a child support order, the Act departs from the choice made by the UIFSA (1996) § 102, which allows for the establishment of a child support order by an administrative agency. Insofar as establishment of parentage is concerned, UPA (2000) makes the deliberate decision to require a judicial proceeding. This decision is consistent with the practice of most States; in fact, very few States provide for the resolution of disputed paternity through administrative processes. The use of the term "tribunal, as found in UIFSA, was deliberately rejected. Joinder of a parentage proceeding with an action for divorce, annulment, separate maintenance, or child support and custody is left to state law. This might be considered in choosing the court which is to be given jurisdiction over proceedings under this Act

SECTION 105. PROTECTION OF PARTICIPANTS. Proceedings under this [Act] are subject to other law of this State governing the health, safety, privacy, and liberty of a child or other individual who could be jeopardized by disclosure of identifying information, including address, telephone number, place of employment, social security number, and the child's day-care facility and school.

Source: UCCJEA (1997) § 209(e).

SECTION 106. DETERMINATION OF MATERNITY. Provisions of this [Act] relating to determination of paternity apply to determinations of maternity.

Source: UPA (1973) § 21.

This section provides for a determination of the mother-child relationship if that issue is in dispute. Except in circumstances involving immigration, cases involving disputed maternity are extraordinarily rare. Therefore, UPA (2000) is otherwise written in terms applicable to the determination of paternity. While certain provisions found in the balance of the Act do not apply in a proceeding to establish maternity. The Act continues the decision made in UPA (1973) not to burden these already complex provisions with unnecessary references to the ascertainment of maternity. Section 201(a) is the sole provision in the Act specifically relating to the mother-child relationship. In any given case, a judge facing a claim for the determination of the mother-child relationship should have little difficulty deciding which portions of the Act should be applied.

SECTION 201. ESTABLISHMENT OF PARENT-CHILD RELATIONSHIP

SECTION 202. NO DISCRIMINATION BASED ON MARITAL STATUS

SECTION 203. CONSEQUENCES OF ESTABLISHMENT OF PARENTAGE

SECTION 204. PRESUMPTION OF PATERNITY IN CONTEXT OF MARRIAGE

SECTION 201. ESTABLISHMENT OF PARENT-CHILD RELATIONSHIP.

(a) The mother-child relationship is established between a woman and a child by:

(1) the woman's having given birth to the child [, except as otherwise provided in [Article] 8];

(2) an adjudication of the woman's maternity; [or]

(3) adoption of the child by the woman [; or

(4) an adjudication confirming the woman as a parent of a child born to a gestational mother if the agreement was validated under [Article] 8 or is enforceable under other law].

(b) The father-child relationship is established between a man and a child by:

(1) an unrebutted presumption of the man's paternity of the child under Section 204;

(2) an effective acknowledgment of paternity by the man under [Article] 3, unless the acknowledgment has been rescinded or successfully challenged;

(3) an adjudication of the man's paternity;

(4) adoption of the child by the man; [or]

(5) the man's having consented to assisted reproduction by his wife under [Article] 7 which resulted in the birth of the child [; or

(6) an adjudication confirming the man as a parent of a child born to a gestational mother if the agreement was validated under [Article] 8 or is enforceable under other law].

Source: UPA (1973), § 4; expanded to include all possible bases of the parent-child relationship

Subsections (a)(4) and (b)(6) are bracketed. If a State enacts Article 8, Gestational Agreement, the brackets should be removed. If a State does not enact Article 8, the bracketed subsections should be omitted.

SECTION 202. NO DISCRIMINATION BASED ON MARITAL STATUS. 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.

Source: UPA (1973) § 2 and Massachusetts Gen. Laws ch. 209C, § 1.

From a legal and social policy perspective, this is one of the most significant substantive provisions of the Act, reaffirming the principle that regardless of the marital status of the parents, children and parents have equal rights with respect to each other. As discussed in the Prefatory Note, U.S. Supreme Court decisions and lower federal and state court decisions require equality of treatment for a child without a presumed father with regard to most areas of substantive law.

The broad statement according equal treatment to a nonmarital child regarding his or her parents is not to be construed as eliminating all possible distinctions in all aspects of the lives of the nonmarital child and parents. For example, Uniform Probate Code (1993) § 2-705(b), states that "in construing a dispositive provision of a transferor who is not a natural parent, an individual born to the natural parent is not considered a child of that parent unless the individual while a minor lived as a regular member of the household of that parent or of that parent's parent, brother, sister, spouse, or surviving spouse." In short, the UPC (1993) provides that an individual is presumed not to be included in a class gift from someone other than the child's parent unless that individual lived as a member of the parent's family during childhood. This presumed intent of the donor is rebuttable. Although this provision probably has a disproportionate effect on nonmarital children, the disparity is not based on the circumstances of birth, but rather on post-birth living conditions.

SECTION 203. CONSEQUENCES OF ESTABLISHMENT OF PARENTAGE. Unless parental rights are terminated, a parent-child relationship established under this [Act] applies for all purposes, except as otherwise specifically provided by other law of this State.

Source: USCACA (1988) § 10.

This section may seem to state the obvious, but both the statement and the qualifier are necessary because without this explanation a literal reading of §§ 201-203 could lead to erroneous statutory constructions. The basic purpose of the section is to make clear that a mother, as defined in § 201(a), is not a parent once her parental rights have been terminated. Similarly, a man whose paternity has been established by acknowledgment or by court adjudication may subsequently have his parental rights terminated.

The qualifier, "as otherwise provided by other law of this State," is necessary because other statutes may restrict rights of a parent. For example, UPC (1993) § 2-114(c) precludes a parent of a child (and the parent's family) from inheriting from the child by intestate succession "unless that natural parent has openly treated the child as his [or hers] and has not refused to support the child." Similarly, as discussed in the preceding Comment, UPC (1993) § 2-705(b) affects the right of the child to take under class gifts from persons who are not the parents of the child.

SECTION 204. PRESUMPTION OF PATERNITY IN CONTEXT OF MARRIAGE.

(a) A man is presumed to be the father of a child if:

(1) he and the mother of the child are married to each other and the child is born during the marriage;

(2) he and the mother of the child were married to each other and the child is born within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce [, or after a decree of separation];

(3) before the birth of the child, he and the mother of the child married each other in apparent compliance with law, even if the attempted marriage is or could be declared invalid, and the child is born during the invalid marriage or within 300 days after its termination by death, annulment, declaration of invalidity, or divorce [, or after a decree of separation]; or

(4) after the birth of the child, he and the mother of the child married each other in apparent compliance with law, whether or not the marriage is or could be declared invalid, and he voluntarily asserted his paternity of the child, and:

(A) the assertion is in a record filed with [state agency maintaining birth records];

(B) he agreed to be and is named as the child's father on the child's birth certificate; or

(C) he promised in a record to support the child as his own.

(b) A presumption of paternity established under this section may be rebutted only by an adjudication under [Article] 6.

Source: UPA (1973) § 4.

A network of presumptions was established by UPA (1973) for application to cases in which proof of external circumstances indicate a particular man to be the probable father. The simplest of these is also the best known - birth of a child during the marriage between the mother and a man. When promulgated in 1973 the contemporaneous commentary noted that:

perhaps no one state now includes all these presumptions in its law, the presumptions are based on existing presumptions of 'legitimacy' in state laws and do not represent a serious departure. Novel is that they have been collected under one roof. All presumptions of paternity are rebuttable in appropriate circumstances.

After some minor revision of language, UPA (2000) retains all of the original presumptions that relate to marriage. Subsection (1) deals with a child born during a marriage; subsection (2) deals with a child conceived during marriage but born after its termination; subsection (3) deals with a child conceived or born during an invalid marriage; and, subsection (4) deals with a child born before a valid or invalid marriage, accompanied by other facts indicating the husband is the father.

But, two presumptions found in UPA (1973) are not repeated in UPA (2000). Former subsection 4(4) created a presumption of paternity if a man "receives the child into his home and openly holds out the child as his natural child . . .  ." This presumption was not carried forward because genetic testing is a far better means of determining paternity. Former subsection 4(5) created a presumption of paternity if the man "acknowledges his paternity of the child in a writing filed with [named agency] [and] . . . the mother . . . does not dispute the acknowledgment within a reasonable time . . .  ." This presumption was eliminated because it conflicts with Article 3, Voluntary Acknowledgment of Paternity, under which a valid acknowledgment establishes paternity rather than a presumption of paternity.

Finally, UPA (1973) § 4(b) has been substantially rewritten. The requirement that a presumption "may be rebutted . . . only by clear and convincing evidence" was eliminated from the Act. The same fate was accorded the statement that "If two or more presumptions arise which conflict with each other, the presumption which on the facts is founded on the weightier considerations of policy and logic controls. The existence of modern genetic testing obviates this old approach to the problem of conflicting presumptions when a court is to determine paternity.

SECTION 301. ACKNOWLEDGMENT OF PATERNITY

SECTION 302. EXECUTION OF ACKNOWLEDGMENT OF PATERNITY

SECTION 303. DENIAL OF PATERNITY

SECTION 304. RULES FOR ACKNOWLEDGMENT AND DENIAL OF PATERNITY

SECTION 305. EFFECT OF ACKNOWLEDGMENT OR DENIAL OF PATERNITY

SECTION 306. NO FILING FEE

SECTION 307. PROCEEDING FOR RESCISSION

SECTION 308. CHALLENGE AFTER EXPIRATION OF PERIOD FOR RESCISSION

SECTION 309. PROCEDURE FOR RESCISSION OR CHALLENGE

SECTION 310. RATIFICATION BARRED

SECTION 311. FULL FAITH AND CREDIT

SECTION 312. FORMS FOR ACKNOWLEDGMENT AND DENIAL OF PATERNITY

SECTION 313. RELEASE OF INFORMATION

SECTION 314. ADOPTION OF RULES

Voluntary acknowledgment of paternity has long been an alternative to a contested paternity suit. Under UPA (1973) § 4, the inclusion of a man's name on the child's birth certificate created a presumption of paternity, which could be rebutted. A relatively recent enactment of the U.S. Congress has made necessary a fundamental change in the acknowledgment procedure. In the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA, also known as the Welfare Reform Act) Congress conditioned federal child support enforcement funds on a requirement that a State enact laws that greatly strengthen the effect of a man's voluntary acknowledgment of paternity, 42 U.S.C. § 666(a)(5)(C). This statute is reproduced in Appendix: Federal IV-D Statute Relating to Parentage, infra. In brief, a valid, unrescinded, unchallenged acknowledgment of paternity is to be considered equivalent to a judicial determination of paternity.

A comprehensive approach to comply with the congressional mandate is required because the federal act is nonspecific in many respects. Primary among the issues that Congress did not take into account was the fact that a mother who, in cooperation with the actual father of a child, seeks to have that man acknowledge paternity of the child may, in fact, be married to another man. By virtue of parentage laws that are in universal effect, including UPA (2000), the husband of the mother is the presumed father of the child, see § 204, supra. By ignoring the real possibility that there will be both an acknowledged father and a presumed father, Congress left it to the States to sort out the difficulties inherent in such a fact situation.

Further, PRWORA does not mention that a person acknowledging parentage asserts genetic parentage of the child. Section 301 is designed to prevent circumvention of adoption laws by demanding a sworn assertion of actual parentage of the child through sexual intercourse in support of an acknowledgment under this article.

Sections 302-305 clarify that if a child who is the subject of an acknowledgment also has a presumed father, that man must cooperate by filing a denial of paternity in conjunction with the acknowledgment; if not, the document is void. If the presumed father is unwilling to cooperate, or his whereabouts are unknown, a court proceeding is necessary to resolve the issue of parentage.

Congress also directed that the acknowledgment can be "rescinded" within a particular timeframe, and subsequently can be "challenged"- without stating a timeframe. These procedures are dealt with in Sections 307-309.

SECTION 301. ACKNOWLEDGMENT OF PATERNITY. The mother of a child and a man claiming to be the father of the child conceived as the result of his sexual intercourse with the mother may sign an acknowledgment of paternity with intent to establish the man's paternity.

Source: 42 U.S.C. § 666(a)(5)(C), see preceding Comment and Appendix: Federal IV-D Statute Relating to Parentage, infra.

PRWORA does not explicitly require that a man acknowledging parentage necessarily is asserting his genetic parentage of the child. In contrast, § 301 prevents circumvention of adoption laws by requiring a sworn assertion of actual parentage of the child through sexual intercourse in support of an acknowledgment under this article.

SECTION 302. EXECUTION OF ACKNOWLEDGMENT OF PATERNITY.

(a) An acknowledgment of paternity must:

(1) be in a record;

(2) be signed, or otherwise authenticated, under penalty of perjury by the mother and by the man seeking to establish his paternity;

(3) state that the child whose paternity is being acknowledged:

(A) does not have a presumed father, or has a presumed father whose full name is stated; and

(B) does not have another acknowledged or adjudicated father;

(4) state whether there has been genetic testing and, if so, that the acknowledging man's claim of paternity is consistent with the results of the testing; and

(5) state that the signatories understand that the acknowledgment is the equivalent of a judicial adjudication of paternity of the child and that a challenge to the acknowledgment is permitted only under limited circumstances and is barred after two years.

(b) An acknowledgment of paternity is void if it:

(1) states that another man is a presumed father, unless a denial of paternity signed or otherwise authenticated by the presumed father is filed with the [agency maintaining birth records];

(2) states that another man is an acknowledged or adjudicated father; or

(3) falsely denies the existence of a presumed, acknowledged, or adjudicated father of the child.

(c) A presumed father may sign or otherwise authenticate an acknowledgment of paternity.

Source: 42 U.S.C. § 666(a)(5)(C), see Appendix: Federal IV-D Statute Relating to Parentage, infra.

The federal statute cited above declares that receipt by a State of the federal subsidy for its child support enforcement program is dependent on state law providing specific procedures for voluntary acknowledgment of paternity. The principle was simple to mandate; but the application is quite complicated.

Problems most notably include fact situations in which the mother of the child is married to someone other than the man who intends to acknowledge his paternity. With an acknowledgment the child would then have both an acknowledged father and a presumed father. To deal with this circumstance, many States have passed laws allowing the presumed father to sign a denial of paternity, which must be filed as part of the acknowledgment. This Act adopts this common sense solution; otherwise the acknowledgment would have no legal consequence because it cannot affect the legal rights of the presumed father.

At least two other provisions of this section warrant special emphasis. Subsection (a)(2) requires that the acknowledgment be "signed, or otherwise authenticated, under penalty of perjury," just as income tax returns and many other government documents require. Clearly, the potential punishment for false swearing is substantial, and the benefits from avoiding the complication of requiring witnesses and a notary are significant in this context. Mandating greater formality would greatly discourage the in-hospital signatures so earnestly desired in 42 U.S.C. § 666(a)(5)(C)(ii), see Appendix: Federal IV-D Statute Relating to Parentage, infra.

Similarly, in an attempt to assure full disclosure and avoid false swearing, subsection (a)(4) requires information regarding whether there has been genetic testing, and if so, confirmation of the fact that the acknowledgment is consistent with the results of that testing. This provision is designed to avoid a possible subversion of the requirements for an adoption. A would-be "father" whose parentage of a child has been excluded by genetic testing may not validly sign an acknowledgment after that fact has been established.

SECTION 303. DENIAL OF PATERNITY. A presumed father may sign a denial of his paternity. The denial is valid only if:

(1) an acknowledgment of paternity signed, or otherwise authenticated, by another man is filed pursuant to Section 305;

(2) the denial is in a record, and is signed, or otherwise authenticated, under penalty of perjury; and

(3) the presumed father has not previously:

(A) acknowledged his paternity, unless the previous acknowledgment has been rescinded pursuant to Section 307 or successfully challenged pursuant to Section 308; or

(B) been adjudicated to be the father of the child.

SECTION 304. RULES FOR ACKNOWLEDGMENT AND DENIAL OF PATERNITY.

(a) An acknowledgment of paternity and a denial of paternity may be contained in a single document or may be signed in counterparts, and may be filed separately or simultaneously. If the acknowledgement and denial are both necessary, neither is valid until both are filed.

(b) An acknowledgment of paternity or a denial of paternity may be signed before the birth of the child.

(c) Subject to subsection (a), an acknowledgment of paternity or denial of paternity takes effect on the birth of the child or the filing of the document with the [agency maintaining birth records], whichever occurs later.

(d) An acknowledgment of paternity or denial of paternity signed by a minor is valid if it is otherwise in compliance with this [Act].

Source: 42 U.S.C. § 666(a)(5)(C)(i), requiring a "simple civil process" for voluntary acknowledgment of paternity, see Appendix: Federal IV-D Statute Relating to Parentage, infra.

SECTION 305. EFFECT OF ACKNOWLEDGMENT OR DENIAL OF PATERNITY.

(a) Except as otherwise provided in Sections 307 and 308, a valid acknowledgment of paternity filed with the [agency maintaining birth records] is equivalent to an adjudication of paternity of a child and confers upon the acknowledged father all of the rights and duties of a parent.

(b) Except as otherwise provided in Sections 307 and 308, a valid denial of paternity by a presumed father filed with the [agency maintaining birth records] in conjunction with a valid acknowledgment of paternity is equivalent to an adjudication of the nonpaternity of the presumed father and discharges the presumed father from all rights and duties of a parent.

Source: 42 U.S.C. § 666(a)(5)(D)(ii), requiring that an acknowledgment of paternity be "a legal finding of Paternity," and 42 U.S.C. § 666(a)(5)(M), directing that acknowledgments be "filed with the State registry of birth records . . ."; see Appendix: Federal IV-D Statute Relating to Parentage, infra.

SECTION 306. NO FILING FEE. The [agency maintaining birth records] may not charge for filing an acknowledgment of paternity or denial of paternity.

SECTION 307. PROCEEDING FOR RESCISSION. A signatory may rescind an acknowledgment of paternity or denial of paternity by commencing a proceeding to rescind before the earlier of:

(1) 60 days after the effective date of the acknowledgment or denial, as provided in Section 304; or

(2) the date of the first hearing, in a proceeding to which the signatory is a party, before a court to adjudicate an issue relating to the child, including a proceeding that establishes support.

This section reflects a decision to require a judicial adjudicatory process to rescind a voluntary acknowledgment of paternity. A federal statute, 42 U.S.C. § 666(a)(5)(c)(D)(ii), mandates that in order to retain the federal child support subsidy, state law must provide signatories with a right of rescission of an acknowledgment of paternity. However, the federal statute does not prescribe the method for the rescission, see Appendix: Federal IV-D Statute Relating to Parentage, infra.

SECTION 308. CHALLENGE AFTER EXPIRATION OF PERIOD FOR RESCISSION.

(a) After the period for rescission under Section 307 has expired, a signatory of an acknowledgment of paternity or denial of paternity may commence a proceeding to challenge the acknowledgment or denial only:

(1) on the basis of fraud, duress, or material mistake of fact; and

(2) within two years after the acknowledgment or denial is filed with the [agency maintaining birth records].

(b) A party challenging an acknowledgment of paternity or denial of paternity has the burden of proof.

Congress also added a provision for a "challenge" of an acknowledgment of paternity after the period for rescission of a voluntary acknowledgment of paternity has elapsed. Such a collateral attack is to be limited to a challenge based on alleged "fraud, duress, or material mistake of fact," and according to 42 U.S.C. § 666(a)(5)(c)(D)(iii), must be made "in court," see Appendix: Federal IV-D Statute Relating to Parentage, infra.

SECTION 309. PROCEDURE FOR RESCISSION OR CHALLENGE.

(a) Every signatory to an acknowledgment of paternity and any related denial of paternity must be made a party to a proceeding to rescind or challenge the acknowledgment or denial.

(b) For the purpose of rescission of, or challenge to, an acknowledgment of paternity or denial of paternity, a signatory submits to personal jurisdiction of this State by signing the acknowledgment or denial, effective upon the filing of the document with the [agency maintaining birth records].

(c) Except for good cause shown, during the pendency of a proceeding to rescind or challenge an acknowledgment of paternity or denial of paternity, the court may not suspend the legal responsibilities of a signatory arising from the acknowledgment, including the duty to pay child support.

(d) A proceeding to rescind or to challenge an acknowledgment of paternity or denial of paternity must be conducted in the same manner as a proceeding to adjudicate parentage under [Article] 6.

(e) At the conclusion of a proceeding to rescind or challenge an acknowledgment of paternity or denial of paternity, the court shall order the [agency maintaining birth records] to amend the birth record of the child, if appropriate.

Although the federal statute does not prescribe the method for "rescission" of an acknowledgment of paternity, it does require a proceeding in court for a subsequent "challenge." Overturning an acknowledgment of paternity is an act of significant legal consequence under either of the prescribed methods allowed. Thus, either method to dispute a prior acknowledgment should require a formal procedure because it may void an otherwise valid legal determination of the child's parentage. A procedure that allows a signatory of an acknowledgment of paternity merely to file a rescission with the state bureau of vital statistics would be an unwise policy choice. Many jurisdictions have come to the same conclusion.

SECTION 310. RATIFICATION BARRED. A court or administrative agency conducting a judicial or administrative proceeding is not required or permitted to ratify an unchallenged acknowledgment of paternity.

Source: 42 U.S.C. § 666(a)(5)(E), see Appendix: Federal IV-D Statute Relating to Parentage, infra.

SECTION 311. FULL FAITH AND CREDIT. A court of this State shall give full faith and credit to an acknowledgment of paternity or denial of paternity effective in another State if the acknowledgment or denial has been signed and is otherwise in compliance with the law of the other State.

Source: 42 U.S.C. § 666(a)(5)(C)(iv).

PRWORA requires states "to give full faith and credit to such an affidavit [of acknowledgment of paternity] signed in any other state according to its procedures." Id. And, subsection (a)(5)(D)(ii) provides that a "signed voluntary acknowledgment is considered a legal finding of paternity . . .  . In sum, federal law requires that an acknowledgment of paternity has the same status as a "judgment," 28 U.S.C. § 1738, a "child custody determination," 28 U.S.C. § 1738A, and a "child support order," 28 U.S.C. § 1738B. This section implements these mandates.

SECTION 312. FORMS FOR ACKNOWLEDGMENT AND DENIAL OF PATERNITY.

(a) To facilitate compliance with this [article], the [agency maintaining birth records] shall prescribe forms for the acknowledgment of paternity and the denial of paternity.

(b) A valid acknowledgment of paternity or denial of paternity is not affected by a later modification of the prescribed form.

Source: 42 U.S.C. § 666(a)(5)C)(i),(iv), see Appendix: Federal IV-D Statute Relating to Parentage, infra.

The federal Office of Child Support Enforcement has issued an Action Transmittal to all IV-D agencies specifying how to insure that the forms comply with PRWORA, OCSE-AT-98-02, Required Data Elements for Paternity Acknowledgment Affidavits, http://www.acf.dhhs.gov/programs/cse/1998-at.htm.

SECTION 313. RELEASE OF INFORMATION. The [agency maintaining birth records] may release information relating to the acknowledgment of paternity or denial of paternity to a signatory of the acknowledgment or denial and to courts and [appropriate state or federal agencies] of this or another State.

[SECTION 314. ADOPTION OF RULES. The [agency maintaining birth records] may adopt rules to implement this [article].]

This section is bracketed to account for situations in which it may conflict with other rulemaking limitations in a particular State. States will implement voluntary acknowledgment of paternity procedures in a variety of ways, depending on local practice. This grant of rulemaking authority to carry out the provisions of this article may include electronic transmission of birth and acknowledgment data to the designated state agency.

SECTION 401. ESTABLISHMENT OF REGISTRY

SECTION 402. REGISTRATION FOR NOTIFICATION

SECTION 403. NOTICE OF PROCEEDING

SECTION 404. TERMINATION OF PARENTAL RIGHTS: CHILD UNDER ONE YEAR OF

AGE

SECTION 405. TERMINATION OF PARENTAL RIGHTS: CHILD AT LEAST ONE YEAR OF

AGE

SECTION 411. REQUIRED FORM

SECTION 412. FURNISHING OF INFORMATION; CONFIDENTIALITY

SECTION 413. PENALTY FOR RELEASING INFORMATION

SECTION 414. RESCISSION OF REGISTRATION

SECTION 415. UNTIMELY REGISTRATION

SECTION 416. FEES FOR REGISTRY

SECTION 421. SEARCH OF APPROPRIATE REGISTRY

SECTION 422. CERTIFICATE OF SEARCH OF REGISTRY

SECTION 423. ADMISSIBILITY OF REGISTERED INFORMATION

In Stanley v. Illinois, 405 U.S. 645 (1972), the United States Supreme Court held that an unwed father was entitled to a hearing on his fitness as a parent before his children could be taken from him in a dependency proceeding instituted by the State upon the death of the children's mother. That case on its face presented a fairly stable, although unwed, family situation, although the court did not cite that factor as the basis for its decision. The following year, the Conference promulgated the UPA (1973), §§ 24-25 of which dealt with notice of adoption proceedings and proceedings to terminate parental rights in a way that satisfies the Stanley requirements.

In Lehr v. Robertson, 463 U.S. 248 (1983), the Supreme Court upheld the constitutionality of a New York "putative father registry". The New York statute requires fathers of children born out-of-wedlock to register if they wish to be notified of a termination of parental rights or adoption proceeding. Following a series of well-publicized adoption cases wherein nonmarital fathers had not been given proper notice, legislatures began responding by enacting paternity registries similar to the New York statute. As of May, 2000, at least 28 States had enacted legislation creating paternity registries.

In the view of many commentators, the Lehr opinion undercut the rationale of Stanley by requiring affirmative action by an alleged father before he would be entitled to notice of a proceeding to terminate his parental rights. UPA (2000) takes a different approach by accepting the importance and utility of a parentage registry to facilitate infant adoptions. Under circumstances in which the mother agrees that her infant child should be adopted, time is of the essence in placing an infant with the adoptive parents. Therefore, resort to the constitutionally approved registry system is appropriate. But, the Act limits the effect of the registry cases in which a child is less than one year of age at the time of the court hearing, see Section 405, infra. This recognizes the need to expedite infant adoptions, while properly protecting the rights of those nonmarital fathers who may not have registered, but instead have established some relationship with the child following birth. This gives the nonmarital father the opportunity to step forward to accept the responsibilities of parenthood, while not derailing infant adoptions. Requiring notification to the alleged father of a proceeding when the child has reached one year of age or more will not unduly delay the placement of an older child. Further, this Act excepts from registration a man who timely initiates a proceeding for paternity, notwithstanding his failure to register.

SECTION 401. ESTABLISHMENT OF REGISTRY. A registry of paternity is established in the [agency maintaining the registry].

SECTION 402. REGISTRATION FOR NOTIFICATION.

(a) Except as otherwise provided in subsection (b) or Section 405, a man who desires to be notified of a proceeding for adoption of, or termination of parental rights regarding, a child that he may have fathered must register in the registry of paternity before the birth of the child or within 30 days after the birth.

(b) A man is not required to register if [:

(1)] a father-child relationship between the man and the child has been established under this [Act] or other law [; or

(2) the man commences a proceeding to adjudicate his paternity before the court has terminated his parental rights].

(c) A registrant shall promptly notify the registry in a record of any change in the information registered. The [agency maintaining the registry] shall incorporate all new information received into its records but need not affirmatively seek to obtain current information for incorporation in the registry.

A registry of paternity protects a claim of paternity from summary termination, but the primary advantage of such a registry is to facilitate infant adoptions through licensed agencies. By registering, a registrant insures that he will receive notice of the possible adoption of a child that he may have fathered if the birth occurs in the State of registration. In this manner, a man may seek to protect his right to assert parentage.

Limiting the consequence of a failure to register with a registry of paternity only to termination of paternal rights in cases of infant adoption seems appropriate. If an adoption is not consummated in the first year of the child's life, the nonmarital father and the mother remain responsible for support and eligible for custody or visitation throughout the minority of the child in the absence of an adoption or termination after notice to the alleged father. The latter fact situation distinguishes it from an infant adoption in which both parents lose those right and duties for the benefit of the child.

If a State chooses to enact subsection (b)(2), one of the major criticisms of Lehr v. Robertson, supra, will be eliminated. In Lehr, although the genetic father did not avail himself of the New York putative fathers registry, he had filed a "visitation and paternity" petition in another local court. The trial judge in the adoption proceeding knew the identity of the biological father, where he could be located, and that he was seeking to establish his paternity in another court. Nonetheless, the court granted the adoption and terminated the genetic father's parental rights without notice to him. Subsection (b)(2) exempts an alleged father from the requirement of registration if the man "commences a proceeding to adjudicate his paternity before the court has terminated his parental rights."

The act of registration submits the man to the personal jurisdiction of the tribunals of the State of registration, see UIFSA (1996) § 201(7).

Bracketed subsection (b)(2) may be omitted by those States that do not decide termination and adoption separately, but rather combine the termination of parental rights with the adoption. Under optional subsection (b) [enacted without the bracketed (2)], the alleged father may establish his father-child relationship before an adoption can be completed.

SECTION 403. NOTICE OF PROCEEDING. Notice of a proceeding for the adoption of, or termination of parental rights regarding, a child must be given to a registrant who has timely registered. Notice must be given in a manner prescribed for service of process in a civil action.

This section is the logical conclusion to the legal rationale for establishing a paternity registry. In an adoption of a child or termination of parental rights proceeding, the registry provides a clear procedure for resolving whether a nonmarital father intends to assert his rights with regard to the child. If he registers, termination of his rights and adoption of his child may not proceed without notice to him; this affords him the opportunity to assert his paternity and his claims for custody or visitation.

SECTION 404. TERMINATION OF PARENTAL RIGHTS: CHILD UNDER ONE YEAR OF AGE. The parental rights of a man who may be the father of a child may be terminated without notice if:

(1) the child has not attained one year of age at the time of the termination of parental rights;

(2) the man did not register timely with the [agency maintaining the registry]; and

(3) the man is not exempt from registration under Section 402.

This section is the obverse logical conclusion to the legal rationale for establishing a paternity registry. In an infant adoption or termination of the genetic father's parental rights, the registry provides a clear procedure for resolving that a man does not intend to assert parental rights with regard to the infant. Although the registry protects a man's right to notice in a termination or adoption proceeding, his failure to register waives those rights. Thus, the registry is both a first step for claiming parental rights and the end of those rights for those individuals who do not register. If a man fails to register with the paternity registry, a termination and adoption may proceed without fear of a belated claim, most particularly a claim coming after adoptive parents have received custody of the infant. This expedited procedure greatly facilitates infant adoption, which in truth explains the existence - and popularity - of the registries and their strong support by the adoption community.

SECTION 405. TERMINATION OF PARENTAL RIGHTS: CHILD AT LEAST ONE YEAR OF AGE.

(a) If a child has attained one year of age, notice of a proceeding for adoption of, or termination of parental rights regarding, the child must be given to every alleged father of the child, whether or not he has registered with the [agency maintaining the registry].

(b) Notice must be given in a manner prescribed for service of process in a civil action.

Source: UPA (1973) § 25, and UPUFA (1988) § 3.

With the exception of infant adoptions (children under one year of age) as provided in the preceding section, this provision is solidly based on the Supreme Court's decision in Lehr v. Robertson, supra, while affirming the basic principle of Stanley v. Illinois, supra, and its progeny by requiring notice to the nonmarital father of an adoption of his child or a termination of parental rights proceeding against him. This protects those fathers who may have had some nonlegal relationship with the child or mother for some time and prevents unilateral action to adversely affect the father's rights.

SECTION 411. REQUIRED FORM. The [agency maintaining the registry] shall prepare a form for registering with the agency. The form must require the signature of the registrant. The form must state that the form is signed under penalty of perjury. The form must also state that:

(1) a timely registration entitles the registrant to notice of a proceeding for adoption of the child or termination of the registrant's parental rights;

(2) a timely registration does not commence a proceeding to establish paternity;

(3) the information disclosed on the form may be used against the registrant to establish paternity;

(4) services to assist in establishing paternity are available to the registrant through the support-enforcement agency;

(5) the registrant should also register in another State if conception or birth of the child occurred in the other State;

(6) information on registries of other States is available from [appropriate state agency or agencies]; and

(7) procedures exist to rescind the registration of a claim of paternity.

SECTION 412. FURNISHING OF INFORMATION; CONFIDENTIALITY.

(a) The [agency maintaining the registry] need not seek to locate the mother of a child who is the subject of a registration, but the [agency maintaining the registry] shall send a copy of the notice of registration to a mother if she has provided an address.

(b) Information contained in the registry is confidential and may be released on request only to:

(1) a court or a person designated by the court;

(2) the mother of the child who is the subject of the registration;

(3) an agency authorized by other law to receive the information;

(4) a licensed child-placing agency;

(5) a support-enforcement agency;

(6) a party or the party's attorney of record in a proceeding under this [Act] or in a proceeding for adoption of, or for termination of parental rights regarding, a child who is the subject of the registration; and

(7) the registry of paternity in another State.

SECTION 413. PENALTY FOR RELEASING INFORMATION. An individual commits a [appropriate level misdemeanor] if the individual intentionally releases information from the registry to another individual or agency not authorized to receive the information under Section 412.

SECTION 414. RESCISSION OF REGISTRATION. A registrant may rescind his registration at any time by sending to the registry a rescission in a record signed or otherwise authenticated by him, and witnessed or notarized.

SECTION 415. UNTIMELY REGISTRATION. If a man registers more than 30 days after the birth of the child, the [agency] shall notify the registrant that on its face his registration was not filed timely.

SECTION 416. FEES FOR REGISTRY.

(a) A fee may not be charged for filing a registration or a rescission of registration.

(b) [Except as otherwise provided in subsection (c), the] [The] [agency maintaining the registry] may charge a reasonable fee for making a search of the registry and for furnishing a certificate.

[(c) A support-enforcement agency [is] [and other appropriate agencies, if any, are] not required to pay a fee authorized by subsection (b).]

SECTION 421. SEARCH OF APPROPRIATE REGISTRY.

(a) If a father-child relationship has not been established under this [Act] for a child under one year of age, a [petitioner] for adoption of, or termination of parental rights regarding, the child, must obtain a certificate of search of the registry of paternity.

(b) If a [petitioner] for adoption of, or termination of parental rights regarding, a child has reason to believe that the conception or birth of the child may have occurred in another State, the [petitioner] must also obtain a certificate of search from the registry of paternity, if any, in that State.

SECTION 422. CERTIFICATE OF SEARCH OF REGISTRY.

(a) The [agency maintaining the registry] shall furnish to the requester a certificate of search of the registry on request of an individual, court, or agency identified in Section 412.

(b) A certificate provided by the [agency maintaining the registry] must be signed on behalf of the [agency] and state that:

(1) a search has been made of the registry; and

(2) a registration containing the information required to identify the registrant:

(A) has been found and is attached to the certificate of search; or

(B) has not been found.

(c) A [petitioner] must file the certificate of search with the court before a proceeding for adoption of, or termination of parental rights regarding, a child may be concluded.

SECTION 423. ADMISSIBILITY OF REGISTERED INFORMATION. A certificate of search of the registry of paternity in this or another State is admissible in a proceeding for adoption of, or termination of parental rights regarding, a child and, if relevant, in other legal proceedings.

SECTION 501. SCOPE OF ARTICLE

SECTION 502. ORDER FOR TESTING

SECTION 503. REQUIREMENTS FOR GENETIC TESTING

SECTION 504. REPORT OF GENETIC TESTING

SECTION 505. GENETIC TESTING RESULTS; REBUTTAL

SECTION 506. COSTS OF GENETIC TESTING

SECTION 507. ADDITIONAL GENETIC TESTING

SECTION 508. GENETIC TESTING WHEN SPECIMENS NOT AVAILABLE

SECTION 509. DECEASED INDIVIDUAL

SECTION 510. IDENTICAL BROTHERS

SECTION 511. CONFIDENTIALITY OF GENETIC TESTING

SECTION 501. SCOPE OF ARTICLE. This [article] governs genetic testing of an individual to determine parentage, whether the individual:

(1) voluntarily submits to testing; or

(2) is tested pursuant to an order of the court or a support-enforcement agency.

This section is intended to avoid problems with regard to the admissibility of the result of voluntary genetic testing. Testing is often agreed upon to avoid the cost and delay engendered by requiring a proceeding be filed before the result of a genetic testing can be admitted as evidence. If the test excludes the man's paternity, an unnecessary step has been avoided.

SECTION 502. ORDER FOR TESTING.

(a) Except as otherwise provided in this [article] and [Article] 6, the court shall order the child and other designated individuals to submit to genetic testing if the request for testing is supported by the sworn statement of a party to the proceeding:

(1) alleging paternity and stating facts establishing a reasonable probability of the requisite sexual contact between the individuals; or

(2) denying paternity and stating facts establishing a possibility that sexual contact between the individuals, if any, did not result in the conception of the child.

(b) A support-enforcement agency may order genetic testing only if there is no presumed, acknowledged, or adjudicated father.

(c) If a request for genetic testing of a child is made before birth, the court or support-enforcement agency may not order in-utero testing.

(d) If two or more men are subject to court-ordered genetic testing, the testing may be ordered concurrently or sequentially.

Source: UPA (1973) § 11; 42 U.S.C. § 666(a)(5)(B)(i) requiring genetic testing in certain cases, see Appendix: Federal IV-D Statute Relating to Parentage, infra.

The progress that science has made in understanding molecular genetics since the promulgation of UPA (1973) is phenomenal. Subsection (a) speaks to testing of a "designated individual" other than of the "mother, and alleged or presumed father" to take into account the fact that testing for paternity may proceed without testing the mother. Further, testing may also proceed without testing the alleged father by testing close relatives of that man. Moreover, the right of the court to order testing is not absolute; Sections 607-609 place limitations on genetic testing if the child has a presumed, acknowledged, or adjudicated father.

Subsection (c) is intended to prevent the court from ordering the mother to undergo prenatal testing, such as through amniocentesis or other in utero collection method. These procedures have a measurable risk to the life and health of both the fetus and the mother. If the mother volunteers for such testing, she may undergo prenatal sample collection for parentage determination.

Subsection (d) recognizes that multiple men may be participating in the establishment process. The laboratories prefer to evaluate all persons concurrently, as concurrent testing may prevent multiple sample collections from the child and in rare cases (such as evaluating two non-identical siblings) the laboratory can continue testing until one or both of the tested men are excluded. However, sequential testing is also acceptable.

SECTION 503. REQUIREMENTS FOR GENETIC TESTING.

(a) Genetic testing must be of a type reasonably relied upon by experts in the field of genetic testing and performed in a testing laboratory accredited by:

(1) the American Association of Blood Banks, or a successor to its functions;

(2) the American Society for Histocompatibility and Immunogenetics, or a successor to its functions; or

(3) an accrediting body designated by the federal Secretary of Health and Human Services.

(b) A specimen used in genetic testing may consist of one or more samples, or a combination of samples, of blood, buccal cells, bone, hair, or other body tissue or fluid. The specimen used in the testing need not be of the same kind for each individual undergoing genetic testing.

(c) Based on the ethnic or racial group of an individual, the testing laboratory shall determine the databases from which to select frequencies for use in calculation of the probability of paternity. If there is disagreement as to the testing laboratory's choice, the following rules apply:

(1) The individual objecting may require the testing laboratory, within 30 days after receipt of the report of the test, to recalculate the probability of paternity using an ethnic or racial group different from that used by the laboratory.

(2) The individual objecting to the testing laboratory's initial choice shall:

(A) if the frequencies are not available to the testing laboratory for the ethnic or racial group requested, provide the requested frequencies compiled in a manner recognized by accrediting bodies; or

(B) engage another testing laboratory to perform the calculations.

(3) The testing laboratory may use its own statistical estimate if there is a question regarding which ethnic or racial group is appropriate. If available, the testing laboratory shall calculate the frequencies using statistics for any other ethnic or racial group requested.

(d) If, after recalculation using a different ethnic or racial group, genetic testing does not rebuttably identify a man as the father of a child under Section 505, an individual who has been tested may be required to submit to additional genetic testing.

Source: 42 U.S.C. § 666(a)(5)(B)(i)(I)(II) and § 666(a)(5)(F)(i)(I)(II), see Appendix: Federal IV-D Statute Relating to Parentage, infra.

As of December 2000, the Secretary of Health and Human Services has not officially designated any accreditation bodies as referenced in subsection (b)(3). But, Information Memorandum O.C.S.E.-IM-97-03, April 10, 1997, from the Deputy Director of the Office of Child Support Enforcement identifies the American Association of Blood Banks and American Society for Histocompatibility and Immunogenetics as meeting this requirement. The accreditation requirement assures that the testing will "be of a type reasonably relied upon by experts in the field of genetic testing."

Subsection (b) clarifies that a "specimen" suitable for genetic testing may be composed from one of a wide variety of constituent elements of "body tissue and fluids." This conforms the statutory language to biological terminology to assure common understanding between the scientific community and the legal profession. In States with statutes employing only the broad terms, bench and bar have evidenced confusion about the fact that blood, buccal cells, bone, hair, etc. are "body tissues."

Subsections (c) and (d) are designed to clarify the use of "race or ethnic group" in the paternity calculations. Generally, the individual tested provides the information regarding the ethnic or racial group to use in the calculations. These sections are designed to avoid last minute changes in the racial designation, a scientific version of "forum shopping", and to easily correct any misunderstanding about which race should be used.

SECTION 504. REPORT OF GENETIC TESTING.

(a) A report of genetic testing must be in a record and signed under penalty of perjury by a designee of the testing laboratory. A report made under the requirements of this [article] is self-authenticating.

(b) Documentation from the testing laboratory of the following information is sufficient to establish a reliable chain of custody that allows the results of genetic testing to be admissible without testimony:

(1) the names and photographs of the individuals whose specimens have been taken;

(2) the names of the individuals who collected the specimens;

(3) the places and dates the specimens were collected;

(4) the names of the individuals who received the specimens in the testing laboratory; and

(5) the dates the specimens were received.

Source: 42 U.S.C. § 666(a)(5)(F) requiring genetic testing in certain cases, see Appendix: Federal IV-D Statute Relating to Parentage, infra.

Subsection (b) is designed to indicate that in civil trials only a minimal showing of reliability of the chain of custody is needed. This avoids evidentiary problems, such as arguments modeled on criminal cases in which the chain of evidence is crucial. If an element of the chain is missing, such a defect may be corrected by affidavit or other testimony as to the reliability of the sample. For example, samples from a deceased individual may be obtained from a coroner's office and a picture of the individual need not be taken. In this case, proof of the chain of custody of the body maintained by the coroner may be provided.

SECTION 505. GENETIC TESTING RESULTS; REBUTTAL.

(a) Under this [Act], a man is rebuttably identified as the father of a child if the genetic testing complies with this [article] and the results disclose that:

(1) the man has at least a 99 percent probability of paternity, using a prior probability of 0.50, as calculated by using the combined paternity index obtained in the testing; and

(2) a combined paternity index of at least 100 to 1.

(b) A man identified under subsection (a) as the father of the child may rebut the genetic testing results only by other genetic testing satisfying the requirements of this [article] which:

(1) excludes the man as a genetic father of the child; or

(2) identifies another man as the possible father of the child.

(c) Except as otherwise provided in Section 510, if more than one man is identified by genetic testing as the possible father of the child, the court shall order them to submit to further genetic testing to identify the genetic father.

Source: 42 U.S.C. § 666(a)(5)(G) requiring genetic testing in certain cases, see Appendix: Federal IV-D Statute Relating to Parentage, infra.

The selection of a probability of paternity of 99.0% and a combined paternity index of 100 to 1 as the rebuttably identified man as father of the child is consistent with the year 2000 standard of practice in the genetic-testing community. Accrediting agencies require the reporting of both of these numbers. As of December, 2000, 27 States have established a presumption at less than this level. However, for several years the standard of practice in the scientific community has been 99.0%. Therefore, raising the genetic presumption to the 99.0% level should have no impact on those States. This number represents a reasonable level of testing, given the breadth of the Act and potential difficulty of working with some specimens in a probate case. It is not intended as a standard of practice for the laboratories, but as a legal presumption to satisfy the legal standard of proof. Given the rapid progress of science, it is likely that accrediting standards will rise over time. If the standard of practice becomes more strict, the newer standards will be made routine by the requirement that laboratories be accredited in order to perform testing under the Act. But, the legal significance of the genetic presumption stated in this section will be unaffected.

Genetic testing results will usually exceed the statutory minimum. During the drafting of UPA (2000) several statutory presumptions were considered, i.e., 95%, 99%, 99.9% and 99.99%. Genetic testing laboratory representatives presented quite persuasive arguments for a variety of choices. The Drafting Committee ultimately chose to settle on the 99% standard because:

(1) the 99% standard reflects the current standard of the American Association of Blood Banks (Standards for Parentage Testing Laboratories, 4th Edition 1999), and the proposed standards (5th Edition, 2001);

(2) the standards promulgated by the various accrediting bodies (American Association of Blood Banks and the American Society for Histocompatibility and Immunogenetics) will, in reality, set the benchmark for genetic testing;

(3) the 99% standard is consistent with the standards of the plurality of American jurisdictions as of December, 2000;

(4) a standard higher than 99% could cause evidentiary problems in probate proceedings because of degraded specimens. Similarly, that problem may arise in cases involving one or more missing individuals, e.g., the mother is not available, but the child and alleged father are available;

(5) the percentage is an evidentiary presumption that the respondent may always challenge by requesting a second test under Section 507; and

(6) a proceeding to adjudicate paternity is a civil action based on a preponderance of the evidence, not a criminal action based on evidence beyond reasonable doubt.

SECTION 506. COSTS OF GENETIC TESTING.

(a) Subject to assessment of costs under [Article] 6, the cost of initial genetic testing must be advanced:

(1) by a support-enforcement agency in a proceeding in which the support-enforcement agency is providing services;

(2) by the individual who made the request;

(3) as agreed by the parties; or

(4) as ordered by the court.

(b) In cases in which the cost is advanced by the support-enforcement agency, the agency may seek reimbursement from a man who is rebuttably identified as the father.

Source: UPA (1973) § 11; 42 U.S.C. § 666(a)(5)(B)(ii)(I), see Appendix: Federal IV-D Statute Relating to Parentage, infra; Little v. Streater, 454 U.S. 1, (1981).

In general, the party seeking relief from a court must bear the cost of the initial genetic testing. The federal law mandates that the support enforcement agency pay the cost of testing, subject to recoupment. Subsection (a)(3) does present the possibility that a court might order a respondent to pay the initial cost.

SECTION 507. ADDITIONAL GENETIC TESTING. The court or the support-enforcement agency shall order additional genetic testing upon the request of a party who contests the result of the original testing. If the previous genetic testing identified a man as the father of the child under Section 505, the court or agency may not order additional testing unless the party provides advance payment for the testing.

Source: UPA (1973) § 11; 42 U.S.C. § 666(a)(5)(B)(ii)(II).

Obviously the opportunity for additional testing should be provided if the original testing is contested in good faith, see Appendix: Federal IV-D Statute Relating to Parentage, infra. The requirement that the contestant provide advance payment if prior testing has identified a man as the father is intended to discourage spurious contests. This section provides the most important mechanism for determining the accuracy of a paternity test. While extremely rare, even after initial tests indicate a probability of paternity greater than 99.99% it is theoretically possible that additional testing can result in exclusion of the tested man. Likewise, if there is an error in the chain of custody or testing procedures, exclusion is the expected outcome. The only way to reliably determine whether an error occurred is to obtain a second test.

SECTION 508. GENETIC TESTING WHEN SPECIMENS NOT AVAILABLE.

(a) Subject to subsection (b), if a genetic-testing specimen is not available from a man who may be the father of a child, for good cause and under circumstances the court considers to be just, the court may order the following individuals to submit specimens for genetic testing:

(1) the parents of the man;

(2) brothers and sisters of the man;

(3) other children of the man and their mothers; and

(4) other relatives of the man necessary to complete genetic testing.

(b) Issuance of an order under this section requires a finding that a need for genetic testing outweighs the legitimate interests of the individual sought to be tested.

In some cases, the alleged father may be unavailable for testing. Subsection (a) accommodates those cases by providing for testing of the man's relatives to establish his paternity or nonpaternity of a child. Depending on the proceeding, some of the individuals listed for testing in subsection (a) will be parties to the paternity proceeding and others will not. If an individual does not volunteer to participate in the testing and is not a party, in the absence of this provision the court would be required to decide whether it has the authority to order the testing and whether testing the objecting individual is necessary. This provision resolves the issues. Given the fact that genetic testing in the modern age is not invasive - use of the buccal swab method means that the intrusion into the privacy of the individual is relatively slight compared to the right of the child to have parentage established. Moreover, the alleged parent also has a right to have that fact determined.

Note that no provision is explicitly made for court-ordered testing of maternal relatives because the establishment of paternity by genetic testing is in no way dependent on testing the mother of the child. However, if maternity is at issue, § 106, Determination of Maternity, directs that this section be construed to test the relatives of the mother.

SECTION 509. DECEASED INDIVIDUAL. For good cause shown, the court may order genetic testing of a deceased individual.

In some States, the court with jurisdiction to adjudicate parentage may lack authority to order disinterment of a deceased individual. If so, that authority is provided by this section.

SECTION 510. IDENTICAL BROTHERS.

(a) The court may order genetic testing of a brother of a man identified as the father of a child if the man is commonly believed to have an identical brother and evidence suggests that the brother may be the genetic father of the child.

(b) If each brother satisfies the requirements as the identified father of the child under Section 505 without consideration of another identical brother being identified as the father of the child, the court may rely on nongenetic evidence to adjudicate which brother is the father of the child.

This section refers to "identical brothers" rather than "identical twins" to account for the possibility of identical triplets, etc. In some cases, non-identical brothers (and even other related men) will not be excluded after initial genetic testing. This section should not be used to resolve those cases because more sophisticated genetic testing can differentiate between non-identical siblings. If a case occurs in which, after initial testing, two men are not excluded, both men should be ordered to submit to additional testing as provided in Section 505(c) to determine which is the father. In the extremely rare case in which a competent laboratory exhausts all of its in-house testing and still cannot determine which non-identical sibling is excluded, the common practice is to provide the genetic material to another laboratory for more extensive testing to resolve the case.

Contrasting identical brothers with non-identical brothers, identical brothers can never be differentiated by additional genetic testing. This creates a completely different situation for the court. This section resolves the identical-brother conundrum as much as possible, and is designed to prevent the court from simply dismissing the case.

SECTION 511. CONFIDENTIALITY OF GENETIC TESTING.

(a) Release of the report of genetic testing for parentage is controlled by [applicable state law].

(b) An individual who intentionally releases an identifiable specimen of another individual for any purpose other than that relevant to the proceeding regarding parentage without a court order or the written permission of the individual who furnished the specimen commits a [appropriate level misdemeanor].

This section seeks to protect the privacy rights of persons who are tested for a parentage determination. Although the Drafting Committee was not informed of an instance in which a paternity-testing laboratory had released samples or performed unauthorized testing, several States have proposed or passed laws regulating the "genetic privacy" of paternity tests. This section is intended to provide some guidance in this area. The term "identifiable specimen" is included, as there are beneficial uses of samples for anonymous research purposes. For example, the frequency tables used to make calculations are compiled from anonymous data and provide a more precise calculation for all persons involved in paternity testing. On occasion, a court may order the laboratory to release samples. For instance, a man who had been tested in one paternity proceeding and then dies may have his samples utilized in another paternity proceeding if a court orders testing in the second action. Courts have also ordered the release of samples when the tested man has allegedly engaged in criminal conduct. This has occurred when the alleged father has sent an imposter for sample collection. If the State pursues criminal charges, a court might order the laboratory to release the samples to a state crime laboratory for further identification and possible criminal prosecution.

The Drafting Committee was informed that in one case, a grand jury brought indictments for multiple counts of a scheme to defraud, tampering with physical evidence and perjury against the alleged father and the imposter. The results of genetic testing for paternity purposes appear to have no medical or predictive value in any other context. Thus, regulation of the paternity-test results is left to the States. In some States, the records of paternity proceedings are open, thus allowing anyone to obtain the results. A more comprehensive treatment on this subject must necessarily be left to other laws.

The control of the records is left to other state law. In some States paternity records are open to the public, and a fundamental change in handling of the records is beyond the scope of this Act. The accreditation agencies provide guidance on this subject. For example, the American Association of Blood Banks requires that accredited laboratories maintain records for at least five years. Because a laboratory performing testing under this Act should be accredited, see Section 503(a), supra, protection is thus provided to the tested person's records under the accreditation standards.

SECTION 601. PROCEEDING AUTHORIZED

SECTION 602. STANDING TO MAINTAIN PROCEEDING

SECTION 603. PARTIES TO PROCEEDING

SECTION 604. PERSONAL JURISDICTION

SECTION 605. VENUE

SECTION 606. NO LIMITATION: CHILD HAVING NO PRESUMED, ACKNOWLEDGED, OR

ADJUDICATED FATHER

SECTION 607. LIMITATION: CHILD HAVING PRESUMED FATHER

SECTION 608. AUTHORITY TO DENY MOTION FOR GENETIC TESTING

SECTION 609. LIMITATION: CHILD HAVING ACKNOWLEDGED OR ADJUDICATED

FATHER

SECTION 610. JOINDER OF PROCEEDINGS

SECTION 611. PROCEEDING BEFORE BIRTH

SECTION 612. CHILD AS PARTY; REPRESENTATION

SECTION 621. ADMISSIBILITY OF RESULTS OF GENETIC TESTING; EXPENSES

SECTION 622. CONSEQUENCES OF DECLINING GENETIC TESTING

SECTION 623. ADMISSION OF PATERNITY AUTHORIZED

SECTION 624. TEMPORARY ORDER

SECTION 631. RULES FOR ADJUDICATION OF PATERNITY

SECTION 632. JURY PROHIBITED

SECTION 633. HEARINGS; INSPECTION OF RECORDS

SECTION 634. ORDER ON DEFAULT

SECTION 635. DISMISSAL FOR WANT OF PROSECUTION

SECTION 636 . ORDER ADJUDICATING PARENTAGE

SECTION 637. BINDING EFFECT OF DETERMINATION OF PARENTAGE

SECTION 601. PROCEEDING AUTHORIZED. A civil proceeding may be maintained to adjudicate the parentage of a child. The proceeding is governed by the [rules of civil procedure].

Source: UPA (1973) § 14.

A determination of paternity is governed by the ordinary rules of civil procedure. The party seeking to establish paternity is entitled to full discovery, to compel the testimony of all witnesses, and to have the case tried by a preponderance of the evidence. "The equipoise of the private interests that are at stake in a paternity proceeding supports the conclusion that the standard of proof normally applied in private litigation is also appropriate for these cases." Rivera v. Minnich, 483 U.S. 574, 581 (1987).

A corresponding amendment to UPC § 2-114 was not made until the major revision of 1990 (as further revised in 1993). By that time, it had been recognized as illogical and unjust to impose discriminatory burdens on children born out-of-wedlock who were seeking paternal inheritance. It also had been ruled unconstitutional by application of the intermediate scrutiny test formulated under the 14th Amendment. Reed v. Campbell, 476 U.S. 852 (1986). Moreover, by 1990 the preponderance of the evidence standard had been widely applied to determinations of paternity and probate proceedings. Against this background, UPC (1993) abandoned the clear and convincing evidence alternative for determining paternal relationships.

SECTION 602. STANDING TO MAINTAIN PROCEEDING. Subject to [Article] 3 and Sections 607 and 609, a proceeding to adjudicate parentage may be maintained by:

(1) the child;

(2) the mother of the child;

(3) a man whose paternity of the child is to be adjudicated;

(4) the support-enforcement agency [or other governmental agency authorized by other law];

(5) an authorized adoption agency or licensed child-placing agency; [or]

(6) a representative authorized by law to act for an individual who would otherwise be entitled to maintain a proceeding but who is deceased, incapacitated, or a minor [; or

(7) an intended parent under [Article] 8].

Source: UPA (1973) § 6.

This section grants standing to a broad range of individuals and agencies to bring a parentage proceeding. But, several limitations on standing to sue are contained within the Act. Article 3 details the procedures involved in a voluntary acknowledgment of parentage. Sections 607 and 609 establish the ground rules for proceedings involving children with, and without, a presumed father. Article 8 regulates parentage determinations arising from a gestational agreement.

SECTION 603. PARTIES TO PROCEEDING. The following individuals must be joined as parties in a proceeding to adjudicate parentage:

(1) the mother of the child; and

(2) a man whose paternity of the child is to be adjudicated.

Source: UPA (1973) § 9.

This section partially follows and partially rejects the UPA (1973) requirements regarding who must be named as parties in a parentage proceeding. First, contra to UPA (1973), the child is not a necessary party. Few States require children as necessary parties. Further, with the widespread use of DNA testing, such a requirement has outlived its usefulness. On the other hand, failure to join a child as a party may later result in a child's successful collateral attack on the original determination of paternity to be filed by the child. This subject is discussed more fully in the Comment to Section 637, infra.

Second, as far as can be determined, no State requires the children born to a woman during marriage to be named as parties in every divorce proceeding; and, those decrees generally serve as res judicata if a later attack on a earlier determination is mounted. Id.

SECTION 604. PERSONAL JURISDICTION.

(a) An individual may not be adjudicated to be a parent unless the court has personal jurisdiction over the individual.

(b) A court of this State having jurisdiction to adjudicate parentage may exercise personal jurisdiction over a nonresident individual, or the guardian or conservator of the individual, if the conditions prescribed in [Section 201 of the Uniform Interstate Family Support Act] are fulfilled.

(c) Lack of jurisdiction over one individual does not preclude the court from making an adjudication of parentage binding on another individual over whom the court has personal jurisdiction.

Source: UPA (1973) § 6(b).

Although custody and visitation proceedings are considered to be status adjudications, and therefore do not require personal jurisdiction over both parents, subsection (a) confirms the long-standing view that paternity proceedings require personal jurisdiction.