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Formal Declarations of Intended Childcare Parentage

18 Pages Posted: 10 Nov 2016 Last revised: 11 Apr 2017

Jeffrey A. Parness

Northern Illinois University - College of Law

Date Written: November 8, 2016

Abstract

Legal parentage for childcare purposes under American state laws is significantly and rapidly expanding, with the new norms growing increasingly imprecise. No longer is childcare parentage, that is, parentage carrying the superior right to the “care, custody, and control” of a child, only defined at precise moments in time, as by giving birth; having biological ties; marriage to the birth mother; name placement on a birth certificate; or, formal adoption. In increasing numbers, both men and women are now becoming childcare parents where the time of the actions prompting legal parentage is imprecise. Here, parentage typically depends on assessing earlier parental-like acts, like providing financial support or the holding out of a child as one’s own. Here, an earlier intent to be a parent, and not simply be a child caretaker, also is often key.

Both precise and imprecise forms of establishing childcare parentage are now also increasingly overridden under new imprecise disestablishment norms. Whether labeled as rebuttals or rescissions, parentage disestablishments today are frequently dependent on assessing earlier conduct occurring at no precise time, like the failure of a biological father to establish a bonded and dependent familial relationship with his child.

Judicial inquiries into imprecise childcare parentage in both establishment and disestablishment settings would be greatly facilitated if American state lawmakers created new mechanisms for personal declarations of earlier assumed and/or now intended parental acts. As intent to parent often is quite relevant, these declarations would be quite helpful, though not controlling, when courts assess earlier actions while determining imprecise childcare parentage issues. Before suggesting new mechanisms for formal declarations of intended childcare parentage, the paper first reviews current American state imprecise childcare parentage laws and the importance of parental intentions in such laws.

New legal mechanisms could aid courts in their inquiries into earlier parental-like acts in imprecise parental childcare cases if clear indications of childcare intentions were earlier expressed by existing legal parents and/or by those looking forward to (further) pursuing a parental role. Voluntary paternity acknowledgements do not now, and should not ever, cover such expressions. They were meant, and should remain, for alleged biological fathers of children born of consensual sex. States having imprecise parentage laws should facilitate later judicial inquiries into parental-like acts by establishing new mechanisms for formal declarations of assumed and/or intended parentage. Such declarations would not control courts making childcare parentage determinations. Rather, they would guide, helping courts apply their states’ imprecise childcare parentage laws that depend upon earlier actions and intentions of parents and of nonparents regarding the continuing or future care and support of children. New state mechanisms for formal declarations of assumed and/or intended childcare parentage should be developed after imprecise childcare parent laws are established, as through statutes or court decisions abiding by premarital or midmarriage childcare pacts (dealing, e.g., with assumed and/or intended stepparent childcare) or by cohabitation pacts between single parents and their significant others.

Keywords: Parentage, Presumed Parent, Equitable Parent, de facto Parent, Contract Parent, Troxel, Lehr, Michael H., Parentage by Estoppel, Informal Parent, Biological Parent, Adoptive Parent, Adoption, Intended Parent

Suggested Citation

Parness, Jeffrey A., Formal Declarations of Intended Childcare Parentage (November 8, 2016). Notre Dame Law Review, Online Supplement, Vol. 92, (March 20, 2017). Available at SSRN: https://ssrn.com/abstract=2866693

Jeffrey Parness (Contact Author)

Northern Illinois University - College of Law ( email )

Swen Parson Hall
DeKalb, IL 60115
United States

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