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Modern Families in Child Support

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

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  1. Modern Families in Child Support Mark J. Ponsolle Assistant Ramsey County Attorney Tuesday, May 20, 2014

  2. Overview Who are we? What is a parent? Who are we to be? Conclusion.

  3. 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?

  4. 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?

  5. 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

  6. 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

  7. Parent • Parent: • one who begets or brings forth, offspring (Webster,1913) • a guardian; a protector (Webster II,1994) • caretaker; biological; surrogacy; adoptive (Wikipedia, 2014)

  8. The Dilemma Recent Past in Minnesota • Parenthood determined by: • Paternity Statute • Biological • Not best parents • Marriage Presumption

  9. The Dilemma Recent Past in Minnesota • Divorce • Adoption • Quality of parent

  10. Modern Families • Paternity • Adoption • Statutory • Cultural • Marriage and Divorce • Statutory • Cultural • Same Sex • Artificial Reproductive Technology

  11. Paternity • Natural Father and Mother • Biological Father and Mother • Presumptions • Role of man • Societal interests • Lack of science

  12. Adoption • Best Interests of Child • Cultural/Equitable Adoptions

  13. 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)

  14. 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

  15. 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.

  16. Marriage and Dissolution • Marriage • Statutory-one man and one woman • Cultural • Dissolution

  17. Prior to 2013-Marriage Marriage Presumption Minn. Stat. § 257.55

  18. 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

  19. 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.

  20. 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

  21. ART Case law • Minnesota Courts looked at cases through the lens of: • Paternity Law • Adoption law • Marriage law • Divorce law

  22. 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

  23. 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

  24. 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

  25. 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

  26. 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

  27. 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

  28. 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

  29. 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

  30. 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

  31. 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.

  32. Crossroads • Unclear Parentage Laws and limited Artificial Reproductive Technology Laws and • Same Sex Marriage Law with gender neutral provision mandates

  33. New Lens Societal Changes and Old and New Laws Not Fully Integrated

  34. 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?

  35. 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.

  36. Conclusion Life is messy and Minnesota law lags behind life

  37. The Future More to Come!

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