The first thing to figure out is whether the revised UPA or the old UPA applies to your client's case. This turns on the question whether an action to establish paternity was "commenced" before June 13, 2002 . If so, you would proceed under the prior statute. Otherwise, the revised UPA applies.
Once you determine that the revised UPA applies, you need to determine whether an acknowledgment or denial of paternity was signed and filed with the registrar of vital statistics. An acknowledgement or denial may be signed before the child is born. Under the revised UPA, if your client signed a valid acknowledgement of paternity and it is on file with the state registrar of vital statistics, that acknowledgement is the legal equivalent to an adjudication of paternity. However, if the old law still applies, an adjudication of paternity will still be required.
If, like many clients, your client does not know if he signed a paternity acknowledgement, or if he doesn't have a copy, you can obtain a copy from the Center for Health Statistics of the Department of Health in Olympia . Their phone number is (360) 236-4335.
If your client desires to rescind an acknowledgment of paternity, he must promptly commence a court proceeding or he will lose that right. A court proceeding to rescind must be commenced before the earlier of: (a) sixty-days after the effective date of filing of the acknowledgement, or (b) the date of the first hearing in a proceeding where your client is before the court concerning the child. If your client misses the deadline, then he may only challenge the acknowledgement for fraud, duress, or material mistake of fact. He will bear the burden of proof, and in any event must bring his challenge within two years.
If your client did sign a paternity acknowledgement that was filed, he or the mother can bring an action for residential time and/or child support. Therefore, you no longer need to file a petition to establish parentage. Of course, an action to establish parentage would still be required if the paternity affidavit was signed before July 1, 1997 .
If your client or the opposing party does file with the court, the child is now a permissive party rather than a mandatory party. If the child is not named as a party, you will not need a guardian ad litem. While this makes things easier for the parties, the attorneys, and the court, it also means that the child may not always be bound by a determination of parentage. Section 537 of the act provides that the child may be bound only if the child has been made a party (and represented by a guardian ad litem if a minor), or the results of genetic testing are consistent with the acknowledgement of paternity or adjudication of parentage. The Constitutionality of a statute that purports to bind a non-party minor may be questionable, and will probably be decided in the future. See State v. Santos , 104 Wn.2d 142, 702 P.2d 1179 (1985).
If the mother was married, or if your client wants to take advantage of a presumption, you should note that the presumptions for paternity have changed. The presumptions are now limited to the context of marriage. A man is presumed to be the father if the child is born during a marriage, or within 300 days after termination of the marriage. There are some other circumstances attendant to marriage (or an invalid marriage) when paternity is presumed.
There is another interesting change under which paternity can now be presumed to be established in a dissolution of marriage proceeding. In a dissolution proceeding, the court is deemed to have made an adjudication of parentage if the court identified the child as a child of the marriage, or provided for support of the child by the husband, unless the court specifically disclaims paternity in the order.
If your client did not sign an acknowledgement of paternity, but the child has a presumed father, a proceeding to establish or disestablish parentage must be brought before the child turns two years old. The only exception to this time period is when the presumed father and mother neither cohabited nor engaged in sexual intercourse during the probable time of conception and the presumed father never openly treated the child as his own.
When a challenge to paternity has been timely filed, the court has the discretion whether to order genetic testing. When it does so, there is a rebuttable presumption of paternity if the genetic tests show at least a 99 percent probability of paternity. The presumption may only be rebutted by additional testing that excludes the man as the genetic father or identifies another man as the father.
Hearings are no longer closed unless there is a request to do so and there is good cause shown. Final orders are available for public inspection, but other papers and records are available only with the consent of the parties or on order of the court for good cause shown. So, unlike before, there may be spectators in the courtroom during your client's court proceedings.
It seems that family law changes significantly with every legislative session. This last year is no exception, and the revised Uniform Parentage Act is among several significant changes. As you can tell, you need to learn a lot of new things before you meet with your client. This column could only touch on a few of the provisions of this new law. The Family Lawyer recommends that you spend time studying this law before you meet with your client. There will no doubt be discussions on the Family Law Section's listserv, and more information in upcoming issues of the Family Law Section Newsletter concerning this new law.
-- The Family Lawyer
If you have a question you want answered in this column, send it to "Dear Family Lawyer", WSBA Family Law Section, 2101 Fourth Avenue, Suite 400, Seattle, WA 98121-2330.
"Dear Family Lawyer" is prepared for De Novo by the Family Law Section of the WSBA. Nothing in this column is an official opinion of the Family Law Section. To learn more about or to join the Family Law Section, go to http://store.yahoo.com/wsbastore/famlawsecmem.html.
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