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STATUTES OF LIMITATIONS FOR PATERNITY
ACTIONS AND THEIR SUPPORT OBLIGATIONS (c)
Ronald W. I.
The Time Within Which an Action Can Be Filed to Establish Parentage. Although
some states' statutes provide a specific limitation on the time within which
a child or another person on behalf of the child can file an action to
establish paternity for all purposes, the vast majority specifically exclude
from the limitation an action for the purposes merely of establishing the fact
of parentage (without any concomitant request or ability to request child
support or reimbursement). Until the late 1960s, states placed severe limitations on the ability of children to establish a paternity relationship in those situations in which no marriage existed between the child’s mother and father. The primary rationales for these statutes were the punishment of immoral behavior by the parents and the sacrosanct nature of procreation within the marital relationship. Starting in 1968, however, the United States Supreme Court decided a series of cases and found that many of those existing statutes unconstitutionally discriminated against children born outside a marital relationship. The Court determined that the Equal Protection Clause mandated that states treat those children no differently than children of a marital relationship. Accordingly, many of the statutory schemes that had been set up to deter birth outside the marriage by denying the child of that non-marital relationship the same rights as those enjoyed by children of a marital relationship were struck down as unconstitutional. The lack of logical justification for those statutes and the failure of them to pass constitutional muster was expressed by the Supreme Court in Weber v. Aetna Casualty & Surety Company, 406 U.S. 164, 92 S. Ct. 1400, 1406-07 (1972): The status of
illegitimacy has expressed through the ages society’s condemnation of
irresponsible liaisons beyond the bonds of marriage. But visiting this
condemnation on the head of an infant is illogical and unjust. Moreover,
imposing disabilities on the illegitimate child is contrary to the basic
concept of our system that legal burdens should bear some relationship to
individual responsibility or wrongdoing. Obviously, no child is responsible
for his birth and penalizing the illegitimate child is an ineffectual - as
well as an unjust - way of deterring the parent. Courts are powerless to
prevent the social opprobrium suffered by these hapless children, but the
Equal Protection Clause does enable us to strike down discriminatory laws
relating to status of birth where - as in this case - the classification is
justified by no legitimate state interest, compelling or otherwise. Accordingly, presently every state provides either by statute or case law that a child has an extended time in order to establish parentage and that the failure of the child’s mere fact that either by statute or case. A majority of the States that the child has at least one year past attaining the age of majority to file an action to establish parentage; a significant minority of States provide, however, that paternity can only be established (for non-probate reasons) to the age of majority. II. The Nature of Retroactive Support Obligations. There are two different ways in which the states deal with the retroactive support obligations. First, some states allow only reimbursement of expenses incurred on behalf of the child prior to the date on which the action to establish paternity and begin child support was filed. The parent seeking recovery from the other parent is allowed only to recover some portion of those expenses that were actually incurred in raising and supporting the child. This scheme puts a substantial burden on the parent seeking the reimbursement because it requires that parent produce specific evidence of the nature and amounts of money expended for or on behalf of the child during some period of time between birth and the filing of the action. While the statutes provide different specifics as to what is included in expenses that may be subject to reimbursement, those statutes that make any reference refer to expenses pertaining to the child’s health, education and general welfare. Most, if not all, provide that in addition to any other reimbursement for support expenses incurred, a mother may recover any moneys paid for prenatal care and birth expenses. A few states allow the imposition of retroactive support with the idea that merely allowing recovery of moneys expended on a child which can be shown by specific evidence does not adequately take into consideration all those moneys actually paid out. These states provide that the actual expenses which can be shown as paid have little or no importance to a determination of the retroactive support obligation. Instead, the retroactive liability is determined in the same way the courts of that state determine present and future support - by application of the child support guidelines. The incomes used to calculate the child support under the guidelines is not the amount currently earned, but that amount earned for the particular year for which retroactive support is sought. Many of these statutes allow additional deviation factors not permitted in the assessment of current and future support in order. Although most states use the terminology “support” rather than “reimbursement” in their statutes, the courts of some of those states have interpreted the phrase narrowly has been narrowly construed to require that the party seeking imposition of the retroactive support obligation have the burden of proving the actual amounts of necessary expenses incurred for support of the child, and not to rely on the parent’s incomes in order to calculate a retroactive award of child support. III. Limitation of Retroactivity. The statutes for determination of parentage relating to support also consider the time period prior to the filing of the action the state allows the child, or parent on behalf of the child, to seek reimbursement. Again, the States have taken different avenues in attempting to strike a balance between need to provide support for a child outside a marital relationship and the perceived inequity of the potential of a delayed judgment for a retroactive child support obligation. A majority of the states have provided apparently determined that the balance is better struck by allowing the obligation for support of a child to reach back to the date of birth of the child. Under these provisions, the state’s courts have the flexibility of trying to look at equitably adjusting the expenses of raising the child and provide some sharing of the support obligation for the entire minority of the child. While the majority of states allow a retroactive support obligation to stretch from the date of filing of the action back to the date of birth (which may also include a provision that the court may also order all or a portion of prenatal and birth expenses paid by one or both parents), a significant number of states place limitations on a parent’s liability for past support obligations - even if no support had previously ever been paid. The presumed rationale of this kind of limitation on liability is encouragement of prompt action by the child or a parent who may seek child support against the other parent as well as a possible perception that such a policy might discourage agreements between parents in which a non-residential parent agrees not to have contact with the child in exchange for a supposed agreement not to seek child support on which the residential parent later reneges when the child is almost age of majority and a potentially huge retroactive support order may result. Paternity
Support Retroactivity and Statutes of Limitation:
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