The below is the abstract of “The Constitutional Limits on Custodial and Support Parentage by Consent,” featured in the Idaho Law Review.

Prompted by the National Conference of Commissioners on Uniform State Laws through its Uniform Parentage Acts, and by the American Law Institute through its Family Dissolution Principles and its Restatement Draft on Children and the Law, recently U.S. state legislators and judges have spurred a revolution in parentage laws. In particular, lawmakers have expanded parental custody opportunities and parental support obligations for those without biological (actual or presumed) or formal adoptive ties by recognizing ever-increasing forms of legal parentage by consent.

Lawmakers have revolutionized parentage in some startling ways, as by deeming women to be parents under written paternity laws (including laws on marital paternity presumptions and on voluntary paternity acknowledgements). Unfortunately, U.S. state lawmakers have not always acted in ways compatible with constitutional (federal and state) constraints.

This article is the first to review comprehensively the constitutional issues arising from the new state laws on parentage by consent, including residency/hold out parentage; spousal parentage; de facto parentage; voluntary acknowledgment parentage; and assisted reproduction parentage. These issues most often arise when forms of “presumed consent” are employed, meaning there is neither earlier actual nor apparent consent to justify impositions of shared (if not eliminated) child custody upon expecting or existing legal parents who then object, or to justify impositions of child support upon those then nonparents who then object. Presumed consent, unlike “common authority” in Fourth Amendment search cases, should not generally operate in parentage by consent settings. If it does operate, public awareness should be enhanced by education initiatives so that important Due Process interests are not lost without at least some prior notice of the revolutionary parentage laws sweeping across the United States.

Available for download on SSRN.

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Jeffrey A. Parness

Northern Illinois University College of Law

Jeffrey Parness teaches a variety of civil procedure courses as well as administrative law. He taught for six years at the University of Akron School of Law prior to arriving at Northern Illinois University in 1982. His primary areas of scholarship include federal and state civil procedure laws, maternity and paternity laws, the legal status of the unborn, state constitutional equality laws, crime victim restitution, witness abuse in civil litigation, and judicial rulemaking.

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