By Washington State Family Law Attorney Scott T. Ashby of Ashby Law, PLLC.
The Uniform Laws Commission (ULC) has released its updated version of the Uniform Parentage Act. The 2002 version of this Act had been adopted by 11 states in the Union; however, that version of the law used gendered pronouns and took the approach that marriage was only between one man and one woman.
The Supreme Court’s decision, along with advances in reproductive technology, led the ULC to make several changes to the Act.
Washington State adopted the 2002 Act and has since become the first state to enact the revised version. The primary changes are:
Removal of Language Assuming Marriage Only Between Men and Women
“The previous law used gendered pronouns – man and woman, she and he – because the law at the time indicated that marriage was between a woman and a man, and therefore all of the laws related to parentage assumed one man and one woman would be parents,” said Scott T. Ashby, a divorce attorney with Ashby Law, a Washington State law firm. “With the Supreme Court ruling any law that bars same sex marriages unconstitutional, laws like this are likely unconstitutional as well.”
The ULC, Ashby said, decided that it needed to update the act to ensure states had a corrected version that would not run afoul of the Constitution. However, Ashby added, “it is still up to the states to adopt the updated version.”
Creation of de facto Parentage
Most states recognize the existence of certain parental rights in individuals who are not the biological parents, including rights to shared custody and visitation. However, there is little consistency between application of these rights from state to state.
“The updated version of the UPA [Uniform Parentage Act] allows a person to petition the court for recognition as a parent of a child,” Ashby said. “This might seem like it opens the door to spurious claims of parentage, but the UPA is pretty specific in outlining the items that a person must show to be granted those parentage rights. It is not at all that easy,” he said. What it does do, said Ashby, is give people an opportunity to legally establish parent-child rights between an adult and a child that clearly have that connection, “biologically or not.”
Right of Mother of Child Conceived Through Rape to Petition for Termination of Parental Rights of Biological Father
The revised UPA gives mothers whose child or children were conceived through rape the right to petition the court to terminate the parental rights of the rapist. The mother need only show clear and convincing evidence of rape for the court to issue the order.
“This change is in line with a law passed by the U.S. Congress in 2015, which incentivized states to adopt laws like this,” said Ashby. “Unfortunately, the law may be well intended, but it still puts the burden of proving rape on the woman and sets a high evidentiary bar — clear and convincing — which will almost certainly require some prior finding that rape occurred.”
Right of Children Conceived Artificially to Access Information on Genetic Donors
One other big change comes in response to the growing field of genetic testing and assisted reproduction.
“The revised UPA creates an affirmative duty for agencies that gather genetic material for reproductive assistance to ask donors if they wish to have their identifying information withheld,” said Ashby.
If donors request that their information not be released, it must be honored; however, it does impose a good faith requirement on the agency to disclose non-identifying genetic information.
There are other changes in the law, Ashby said, so families need to be aware of how their specific situation could be affected.