Below is the abstract for “Choosing Parentage Laws in Multistate Conduct Cases,” available for download on SSRN.
The (r)evolution in U.S. state parentage laws in the last half century presents significant, and to date generally unrecognized, challenges when parentage issues arise in multistate conduct settings, whether involving childcare (i.e., care, custody and control) or nonchildcare (i.e., support, torts, or probate) issues. The challenges chiefly result from parentage law expansions which go beyond biological ties, marriages, and adoptions. The (r)evolution in state childcare parentage laws has been uneven. Only some states now broadly embrace de facto parenthood and intended assisted reproduction parenthood. These states frequently follow the proposals of the Uniform Law Commission (ULC) in the 2017 Uniform Parentage Act (UPA) or the 2002 Principles of the Law of Family Dissolution of the American Law Institute (ALI Principles). Other states veer less dramatically from childcare parentage founded on biology, marriage, and formal adoption, often following the proposals in the earlier 1973 or 2000 UPAs.
While the (r)evolution in childcare parentage has crept into nonchildcare parentage cases, the creep is slow. The creep should remain slow because legal parenthood has always been contextual, in that it is dependent upon the individual state policy in each parenthood context. One who is not a parent for one purpose (i.e., childcare) may be a parent for another purpose (i.e., child support). Careful analysis is required. These analyses require time. Unfortunately, sometimes there is no connection made between the two contexts where there should be due to similar public policies. And, sometimes there is a connection made where there should not be because the public policies differ.
When unraveling the mysteries of one state’s parentage law in one context, lawyers, judges, and litigants in one state sometimes must also utilize another state’s substantive law due to nonforum conduct and policy. This is challenging because parentage law issues can be either procedural or substantive in nature. Where a true conflict of substantive laws exists, a choice of law determination must be made.
This paper explores choosing parentage laws in multistate conduct cases in varying contexts, including cases involving parentage for childcare and nonchildcare purposes. Choice of law may be compelled by Full Faith and Credit. Where there is no such compulsion, the forum choice of law rules will apply. These rules can vary in a single state between contexts, as with parenthood in childcare and in probate settings. These rules can also vary between states in a single context, as with parentage in tort settings. The paper seeks to provide guidance to those who face challenging choice of parentage law issues in multistate conduct cases.
Before examining choice of law norms, the paper first demonstrates the ever-expanding approaches to legal parentage by reviewing the many forms of childcare parentage set forth by the ULC and ALI. Unlike parentage via biological ties, marriage or adoption, these forms are imprecise in that they depend upon assessments of parental-like acts and/or of private agreements on intended parenthood. In the childcare setting, the ULC has propounded three different UPAs. It has also proposed the widely enacted Uniform Interstate Family Support Act (UIFSA) and Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). These proposals have been far more influential than the ALI’s 2002 Principles.
Following this survey, the paper explores choice of law precedents involving parentage disputes in cases with multistate conduct. The paper reviews disputes involving child custody, probate, torts and child support.