17: Introduction to Parentage of Children
- Page ID
- 121703
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\(\newcommand{\avec}{\mathbf a}\) \(\newcommand{\bvec}{\mathbf b}\) \(\newcommand{\cvec}{\mathbf c}\) \(\newcommand{\dvec}{\mathbf d}\) \(\newcommand{\dtil}{\widetilde{\mathbf d}}\) \(\newcommand{\evec}{\mathbf e}\) \(\newcommand{\fvec}{\mathbf f}\) \(\newcommand{\nvec}{\mathbf n}\) \(\newcommand{\pvec}{\mathbf p}\) \(\newcommand{\qvec}{\mathbf q}\) \(\newcommand{\svec}{\mathbf s}\) \(\newcommand{\tvec}{\mathbf t}\) \(\newcommand{\uvec}{\mathbf u}\) \(\newcommand{\vvec}{\mathbf v}\) \(\newcommand{\wvec}{\mathbf w}\) \(\newcommand{\xvec}{\mathbf x}\) \(\newcommand{\yvec}{\mathbf y}\) \(\newcommand{\zvec}{\mathbf z}\) \(\newcommand{\rvec}{\mathbf r}\) \(\newcommand{\mvec}{\mathbf m}\) \(\newcommand{\zerovec}{\mathbf 0}\) \(\newcommand{\onevec}{\mathbf 1}\) \(\newcommand{\real}{\mathbb R}\) \(\newcommand{\twovec}[2]{\left[\begin{array}{r}#1 \\ #2 \end{array}\right]}\) \(\newcommand{\ctwovec}[2]{\left[\begin{array}{c}#1 \\ #2 \end{array}\right]}\) \(\newcommand{\threevec}[3]{\left[\begin{array}{r}#1 \\ #2 \\ #3 \end{array}\right]}\) \(\newcommand{\cthreevec}[3]{\left[\begin{array}{c}#1 \\ #2 \\ #3 \end{array}\right]}\) \(\newcommand{\fourvec}[4]{\left[\begin{array}{r}#1 \\ #2 \\ #3 \\ #4 \end{array}\right]}\) \(\newcommand{\cfourvec}[4]{\left[\begin{array}{c}#1 \\ #2 \\ #3 \\ #4 \end{array}\right]}\) \(\newcommand{\fivevec}[5]{\left[\begin{array}{r}#1 \\ #2 \\ #3 \\ #4 \\ #5 \\ \end{array}\right]}\) \(\newcommand{\cfivevec}[5]{\left[\begin{array}{c}#1 \\ #2 \\ #3 \\ #4 \\ #5 \\ \end{array}\right]}\) \(\newcommand{\mattwo}[4]{\left[\begin{array}{rr}#1 \amp #2 \\ #3 \amp #4 \\ \end{array}\right]}\) \(\newcommand{\laspan}[1]{\text{Span}\{#1\}}\) \(\newcommand{\bcal}{\cal B}\) \(\newcommand{\ccal}{\cal C}\) \(\newcommand{\scal}{\cal S}\) \(\newcommand{\wcal}{\cal W}\) \(\newcommand{\ecal}{\cal E}\) \(\newcommand{\coords}[2]{\left\{#1\right\}_{#2}}\) \(\newcommand{\gray}[1]{\color{gray}{#1}}\) \(\newcommand{\lgray}[1]{\color{lightgray}{#1}}\) \(\newcommand{\rank}{\operatorname{rank}}\) \(\newcommand{\row}{\text{Row}}\) \(\newcommand{\col}{\text{Col}}\) \(\renewcommand{\row}{\text{Row}}\) \(\newcommand{\nul}{\text{Nul}}\) \(\newcommand{\var}{\text{Var}}\) \(\newcommand{\corr}{\text{corr}}\) \(\newcommand{\len}[1]{\left|#1\right|}\) \(\newcommand{\bbar}{\overline{\bvec}}\) \(\newcommand{\bhat}{\widehat{\bvec}}\) \(\newcommand{\bperp}{\bvec^\perp}\) \(\newcommand{\xhat}{\widehat{\xvec}}\) \(\newcommand{\vhat}{\widehat{\vvec}}\) \(\newcommand{\uhat}{\widehat{\uvec}}\) \(\newcommand{\what}{\widehat{\wvec}}\) \(\newcommand{\Sighat}{\widehat{\Sigma}}\) \(\newcommand{\lt}{<}\) \(\newcommand{\gt}{>}\) \(\newcommand{\amp}{&}\) \(\definecolor{fillinmathshade}{gray}{0.9}\)Determining the identity of the legal parent(s) of a child is not always as simple as it might seem. Parent-child relationships are created under the law in many different ways. Children born during a marriage are generally presumed to be the children of both parties in the marriage even if the child was conceived through assistive reproductive technology (though, as you will see, there is not always a consistent application of this presumption to same-sex married couples). When children are born to an unmarried woman, legal proceedings (known as paternity, parentage, or legitimacy proceedings) are required to establish the second person’s parentage. Sometimes, a legal parent-child relationship can be created for one or two people through adoption after one or more existing parent-child relationships have been terminated, which can be a complex process. Parentage can be further complicated when a child is born to a surrogate mother. The next several chapters will explore issues concerning the parentage of children.
Impact of Parentage
Parentage is the term for the legal relationship between a child and their parent or parents. The distinction between “legitimate” and “illegitimate” children has been an important historical concept in the law. In the past, children’s legal rights in relation to their parents were not based on a biological fact but on the parents' marital status. A child born during a marriage was considered “legitimate” and entitled to a full legal relationship with both parents. A child born outside of marriage was considered “illegitimate,” the child of no one (filius nullius), and was not entitled to support or inheritance from either parent. Fortunately, this is no longer the case. Now, parentage is based on biological relationships (and also sometimes based on “parental intent”) such that children – and parents – have legal rights and obligations based on those factors.
Parentage: The legal relationship between a child and their parent or parents.
Filius nullius: A child born outside of marriage; literally, the child of no one.
As you know from previous chapters, becoming a child’s parent confers important rights and obligations on the adult with respect to custody, placement, and support. A child’s parentage also has other impacts on the child’s legal status and rights, as well as the parent’s. Some of those rights include
- Citizenship. The genetic or adopted child of a United States citizen is also a citizen. Citizenship also applies to non-marital children whose U.S. citizen parent is established as the child’s parent through paternity/legitimation proceedings. (See child-of-a-us-citizen)
- Insurance coverage. Children whose parents have health insurance that covers dependents can be added to their parent’s insurance plans until they reach the age of 26. (See Healthcare.gov)
- Death/disability benefits. Children are entitled to receive monetary and other benefits as a result of their parent’s disability or death under Social Security, Wisconsin Worker’s Compensation, and other programs.
- Death/disability claims. A child whose parent is injured or killed as a result of a third party’s wrongful conduct has a right to file civil claims. Parents also have civil claims if their child is injured or killed as a result of a third party’s wrongful conduct. (Wrongful death claims and loss of society and companionship).
- Inheritance. Both children and parents have the right to inherit from one another under intestacy laws. Children also may receive special allowances from the parent’s estate during probate.
- Access to records. Up until the child reaches a certain age, parents have the right to access the child’s health care and school records and to make decisions on the child’s behalf.
In most states, including Wisconsin, these rights are the same regardless of whether the child is genetically related to the parent or was adopted by the parent. Similarly, these rights are the same regardless of whether the child was born or adopted into a marriage -- as you may recall from Chapter 2, non-marital children are a quasi-suspect class under Constitutional law.
Parental Civil Liability for wrongful actions. Parents can be held legally responsible for damages caused by their children’s wrongful acts. (Section 895.035, Wis. Stats.). Specifically, parents can be held responsible for the cost of repairing or replacing property, the cost of removing graffiti from property, or for the replacement value of stolen property that has not been returned (including retail theft). Parents can also be held legally responsible for damages resulting from personal injury attributable to their child’s willful, malicious, or wanton acts.
Parental Criminal Liability for wrongful actions. Generally speaking, parents will not be prosecuted directly for crimes committed by their children. However, in at least two cases parents have faced criminal charges for permitting their children to access firearms that were later used to commit crimes. In Virginia, a grand jury indicted a mother with felony and misdemeanor charges for failing to prevent her 6-year-old child from accessing a loaded gun and using it to shoot his teacher at school (Shooting of Abby Zwerner). In Michigan, the parents of a 17-year-old school shooter were convicted of involuntary manslaughter and sentenced to 10-15 years in prison, based on their failure to prevent their son’s access to the father’s semi-automatic pistol (Oxford High School shooting).
Emancipation of Minor Children
These rights, responsibilities, and potential liability extend only until the child reaches the age of majority (18 years old in most states) or is emancipated.
Emancipation: The court process through which minor children can become legally recognized as an adults independent of their parents.
After an emancipation order is entered the minor becomes self-supporting, assumes adult responsibility for their welfare, and is no longer under parental care. Emancipation will not be granted unless it is in the child’s best interest and the child has demonstrated the maturity and ability (including financial) to support themselves.
Certain events will result in automatic emancipation, such as marriage or entering the military (both of which require parental consent for minors in Wisconsin). In many states, if the minor seeks emancipation for reasons other than those two events, the minor must prove that emancipation is in their best interest.
Many states have emancipation statutes and procedures for requesting emancipation. Wisconsin, however, does not, although the statutes do provide a definition of “emancipated minor” as “a minor who is or has been married; a minor who has previously given birth; or a minor who has been freed from the care, custody, and control of her parents, with little likelihood of returning to the care, custod,y and control prior to marriage or prior to reaching the age of majority.” The context of this definition lies within statutes regarding the requirement of parental consent for abortions. Section 48.375, Wis. Stats.
Although emancipation results in the child having the same rights, privileges, and duties in society as adults, it does not override laws setting minimum ages for the purchase and consumption of alcohol, tobacco, or firearms; voting; writing a will; or entering into certain types of contracts.
The following resources provide more information regarding the legal status of teens in Wisconsin:
Marital Presumption of Parentage
In all 50 states, a child born during a heterosexual marriage is presumed to be the child of both spouses. In Wisconsin, this presumption also applies to children conceived during a marriage. Section 891.41(1)(a), Wis. Stats. In some cases, this presumption may extend to non-marital children whose biological parents subsequently marry. Section 767.803, Wis. Stats.
Whether states apply the marital presumption to children born or brought into same-sex marriages, without the need for additional proceedings or proof, is inconsistent. Some states have modified their statutory language relating to the marital presumption so that it is not gender or biologically specific. In other states, courts have interpreted the U.S. Supreme Court’s decision in Obergefell v. Hodges to require an extension of the marital presumption of parentage to children in same-sex marriage, even if neither parent is biologically related to the child. Still, other states require adoption or a court order of parentage to establish parental rights and obligations of adults in same-sex marriages. (See, for example, Matter of Maria-Irene D, Lambdalegal.org, Glad.org, and lgbtqmap.org).
Genetics and Parentage
In most instances, being a genetic participant in a pregnancy (men through sperm and women through ovum) is directly tied to the determination of parentage. However, this is not always the case when a child is conceived through assisted reproductive technology (ART) or is born to a surrogate mother.
Assisted reproduction (ART): Intervening medical procedures that completely or partially replace sexual intercourse as a means of conception.
Depending on the type of ART used, the genetics tied to the sperm and/or ovum might have no impact on the resulting child’s parentage.
Artificial insemination. Sperm provided by a man (often anonymously through a sperm bank) are medically inserted into the intended mother’s uterus, where her ovum/egg is fertilized. In most states, an anonymous sperm donor has no rights or responsibilities with respect to the child conceived from his sperm. However, a known sperm donor may still possess the rights and responsibilities of the child’s legal father. Also in most states, if the mother's husband consents to the insemination, he is held to be the legal father of the resulting child even though he is not genetically related.
In vitro fertilization (IVF). A woman’s ovum/eggs are surgically removed from her ovaries and fertilized with sperm in a laboratory. The resulting embryos are implanted into the intended mother’s uterus. If the child is born into a marriage, the married couple are the child’s parents, regardless of whether they are genetically related to the child. Adults who may have donated either their eggs or sperm as part of this procedure typically have no rights or responsibilities with respect to the child conceived from their eggs/sperm.
With artificial insemination and in vitro fertilization, the “legal parents” with full rights and responsibilities are fairly easy to identify. However, when a second woman is involved as a surrogate, identifying the child’s legal parents can get tricky. Surrogacy will be discussed in the next chapter.