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Modern Families in Child Support. Mark J. Ponsolle Assistant Ramsey County Attorney Tuesday, May 20, 2014. Overview. Who are we? What is a parent? Who are we to be? Conclusion. Who are we?. What is the role of the Child Support Program in determining parentage?
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Modern Families in Child Support Mark J. Ponsolle Assistant Ramsey County Attorney Tuesday, May 20, 2014
Overview Who are we? What is a parent? Who are we to be? Conclusion.
Who are we? • What is the role of the Child Support Program in determining parentage? • What is the goal of the Child Support Program in determining parentage?
What is the goal of establishing parentage? • Child support? • Parentage, in and of itself? • Child support from the responsible parents? • Who are the responsible parents?
Parentage • Basic emotional, social, and economic ties between a father and a child, such as: • Child support • Inheritance • Social security • Veteran’s benefits Handbook on Child Support Enforcement U.S. Department of Health and Human Services
Parentage • As important: • Relationship with father • Sense of identity and connection to the other half of his or her family • Medical history of father for health of child Handbook on Child Support Enforcement U.S. Department of Health and Human Services
Parent • Parent: • one who begets or brings forth, offspring (Webster,1913) • a guardian; a protector (Webster II,1994) • caretaker; biological; surrogacy; adoptive (Wikipedia, 2014)
The Dilemma Recent Past in Minnesota • Parenthood determined by: • Paternity Statute • Biological • Not best parents • Marriage Presumption
The Dilemma Recent Past in Minnesota • Divorce • Adoption • Quality of parent
Modern Families • Paternity • Adoption • Statutory • Cultural • Marriage and Divorce • Statutory • Cultural • Same Sex • Artificial Reproductive Technology
Paternity • Natural Father and Mother • Biological Father and Mother • Presumptions • Role of man • Societal interests • Lack of science
Adoption • Best Interests of Child • Cultural/Equitable Adoptions
PARENT CHILD RELATIONSHIP* • Minn. Stat.§ 257.54 provides that: The parent and child relationship between a child and: (a) the biological mother may be established by proof of her having given birth to the child, or under sections 257.51 to 257.74 [the Parentage Act] or 257.75 [Recognition of Paternity]; or *Uniform Parentage Act (plus)
PARENT CHILD RELATIONSHIP • Minn. Stat.§ 257.54 provides that: The parent and child relationship between a child and: (b) the biological father may be established under sections 257.51 to 257.74 [the Parentage Act] or 257.75 [Recognition of Paternity]; or (c) the adoptive parent may be established by proof of adoption.* (Emphasis added). *Minn. Stat. Ch. 259
Cultural/Equitable Adoptions Ramsey County v. Yee Lee 770 N.W.2d 572 (Minn. Ct. App. 2009) • If an adoption is valid under the laws of a nation in which it occurred, it will be recognized as valid in Minnesota for the purpose of determining a child support obligation. • The doctrine of equitable adoption applies only when determining inheritance rights.
Marriage and Dissolution • Marriage • Statutory-one man and one woman • Cultural • Dissolution
Prior to 2013-Marriage Marriage Presumption Minn. Stat. § 257.55
Prior to 2013-Marriage Cultural Marriage The validity of a marriage normally is determined by the law of the place where the marriage is contracted…. unless it violates a strong public policy…. Ramsey County v. Lee, citing the Minnesota Supreme Court
Prior to 2013-Dissolution • A Dissolution Petition must name the children of the parties. Minn. Stat. § 518.10 • But, if you could not be married you could not be divorced.
Artificial Reproductive Technology(ART) • 1980 - Minimal Statutory Scheme • 2002 - Minnesota Uniform Parentage Act Task Force - We like our law just fine • 2003 - Failed attempt to add to the paternity statute • 2013 - Failed attempt to amend the paternity statute
ART Case law • Minnesota Courts looked at cases through the lens of: • Paternity Law • Adoption law • Marriage law • Divorce law
LaChepelle v. Mitten607 N.W.2d 151 (Minn. Ct. App. 2000) • F1-F2 and M1-M2 agree M1 to provide sperm • F1 provides egg and carries child • F1-F2 Adopt • F1-F2 Split • M1 wants visitation • F-2 wants custody Key: F1 = Father one; F2 = Father two; M1 = Mother 1; M2 = Mother 2
LaChepelle v. Mitten607 N.W.2d 151 (Minn. Ct. App. 2000) • Court: • F-1 gets sole physical and joint legal custody • F-2 gets third party joint legal custody • Adoption vacated based upon fraud • M-1 is father and gets involvement in child’s life
Paternity and Custody of Baby Boy A v. JMA2007 WL 4304448 (Minn. Unpublished) • Gestational Surrogacy Agreement (GSA) • M supplies sperm (anonymous egg donor) • JMA carries child and wants to keep child • Argues GSA against public policy
Paternity and Custody of Baby Boy A v. JMA2007 WL 4304448 (Minn. Unpublished) • Court: • M adjudicated father • JMA not biological mother and therefore denied parental rights • No MN legislative or judicial prohibition of GSA
ALS v EAG2010 WL 4181449 (Minn. Unpublished) • Surrogacy Agreement • M-1 and M-2 in committed relationship • F agrees to supply egg and to carry child • F changes mind and wants child • F adjudicated mother
ALS v EAG2010 WL 4181449 (Minn. Unpublished) • M-1 is adjudicated father • M-1 is given sole legal and physical custody • M-2 is not father • Based upon the MN Parentage Act • Declined to address public policy concerning Surrogacy Agreement
In re Adoption of TAM and EJM v LAM791 N.W.2d 573 (Minn. Ct. App. 2010) • F1-F2 • F1 egg and carries/M1 sperm • F2 adopts • F1-F2 split • F1 wants to vacate adoption
In re Adoption of TAM and EJM v LAM791 N.W.2d 573 (Minn. Ct. App. 2010) • F-1 argues MN law does not allow same sex adoption or adoptions by unmarried persons • F-2 argued F-1 frivolous and asked for attorneys fees
In re Adoption of TAM and EJM v LAM791 N.W.2d 573 (Minn. Ct. App. 2010) • Court: • Denies vacation of Adoption as being untimely • Attorney Fees • Court declines to address whether same sex adoptions are lawful
Same Sex Marriage • In 2013 Minnesota amended Minn. Stat. § 517.01 to provide that a civil marriage is a civil contract between two persons. • Minn. Stat. § 517.201 was added to require gender specific words to be interpreted gender neutral for marriage and paternity.
Crossroads • Unclear Parentage Laws and limited Artificial Reproductive Technology Laws and • Same Sex Marriage Law with gender neutral provision mandates
New Lens Societal Changes and Old and New Laws Not Fully Integrated
We need to decide who are we to be? • What should the role of the Child Support Program be in determining parentage? and • What should the goal of the Child Support Program be in determining parentage?
The real question is: who should be the responsible parents? • In many ways we are trying to shoe-horn the new faces of families into statutory schemes which had different goals.
Conclusion Life is messy and Minnesota law lags behind life
The Future More to Come!