Same-Sex Parents: Strategies and Solutions for Serving Families in the Era of Marriage Equality

[No Audio:  Thursday, August 24, 2017.  2:00pm – 3:30pm EDT]

Curt: Hello everyone, and welcome to our live web talk. Same-Sex Parents; Strategies and 
Solutions for Serving Families in the Era of Marriage Equality. Thank you for joining us. Today's 
web talk is CLE eligible. If your office has advised NCSEA of your intent to apply for CLE credits, 
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responses. We'll go ahead and end that, and remove that from view. With that, it's my on my 
pleasure to introduce Sherada Morgan, our moderator for today's web talk, and turn things 
over to her to get us started. Sherada, welcome to the program.

Sherada Morgan: Thank you, good afternoon everybody. I am Sherada Morgan. I'm the 
Business Operations Analyst and Rapid Process Improvement Champion for the Georgia 
Department of Human Services, Child Support Services Division. 

[No Audio:  Sherada Morgan
•	Sherada has over 18 years experience in training and professional development.  Her 
background in research has helped with the continued success of her career.
•	She has also earned a Bachelor of Science Degree from Fort Valley State University and 
Certification as a Database Design Specialist from Middle Georgia Technical College.  Her 
hobbies are reading, watching movies, and spending time with family and friends.]

Sherada Morgan: Our speakers today are Diane Potts, a Senior Associate for the Center for the 
Support of Families, excuse me, of Illinois. Diane Potts joined the Center for Support of Families, 
as a Senior Associate in 2005, after serving for 6 years as an Illinois Deputy Attorney General for 
Child Support. She's also been a frequent speaker at NCSEA, and for several annual conferences 
for WICSEC and ERICSA. 

[No Audio: Diane Potts
•	In 2015, she won the Lifetime Achievement Award from the Illinois Family Support 
Enforcement Association.
•	She has also traveled to Hong Kong in 2015 and Germany in 2013 to present at the 
International Recovery of Child Support and Family Maintenance Conferences.
•	On September 1, Diane will become the President of NCSEA and has served as its past 
President-Elect, past Secretary, and a member of NCSEA’s Board of Directors since 2013.  
She also is current Chair of NCSEA’s Legislative Education Subcommittee, and was the 
co-chair of NCSEA’s 2015 and 2016 Policy Forums.
•	In 2016, Diane was appointed as NCSEA’s official observer to the Uniform Law 
Commission’s amendment of the Uniform Parentage Act.  She served for 6 years on the 
Illinois Child Support Advisory Committee, and was a member of the legislative drafting 
team for the Illinois Parentage Act (2016) and the income shares child support 
legislation (2016). 
•	Diane received her law degree from Washington University Law School and her 
undergraduate degree from University of Illinois. ]

Sherada Morgan:  Welcome Diane. Also, our other speaker is Vera Poe. She's the Policy 
Development Manager for the Oregon Child Support Program. Prior to moving to Oregon, in 
2015, she served as the Assistant Attorney General, with the Texas Child Support Program, for 
over 13 years, in several capacities, including training, legal counsel, and management. 

[No Audio: Vera Poe
•	Vera’s career before entering public service included working for Hopkins and Sutter in 
its commercial litigation section, as in-house counsel for MetLife in New York, and as a 
solo practitioner focusing on family law.
•	Vera is licensed to practice law in Texas (1990) and Oregon (2015), and is a 1990 
graduate of University of Texas School of Law and a 1987 graduate of University of 
Wisconsin-Whitewater.]

Sherada Morgan:  Thank you both and we'll move it on to our speakers.


[No Audio:  Topics to be Discussed 
•	Supreme Court decisions including Pavan (2017); V.L. (2016); Obergefell (2015); Windsor 
(2012); and Lawrence (2003)
•	Legal and policy considerations and challenges, legislative trends and state law variance, 
intergovernmental concerns
•	Oregon’s new parentage law and policy approach
•	Uniform Parentage Act (2017)]

Diane Potts: Good afternoon, and good morning to some. In our time together today, we're 
gonna be discussing several United States Supreme Court decisions that have affected the 
rights to same-sex couples, and their families. Those decisions include Pavan versus Smith, 
which was just decided this summer, and Obergefell versus Hodges, which of course, is the 
marriage equality case, decided in June of 2015. We're also going to talk about the legal and 
policy considerations and challenges that child support programs are facing in light of these 
decisions. Especially where there's no express guidance at the national level. We're gonna look 
at some legislative trends in addressing same-sex parentage and discuss a few of the 
intergovernmental concerns that are arising across the nation. 

My colleague, Vera Poe, will talk today about Oregon's new parentage law that was passed in 
the 2017 session, and the policy approach Oregon is taking to ensure equal service to same sex 
couples. Finally, at the end of the presentation, I'm going to go over some of the new model 
statutory language that is contained in the 2017 update to the Uniform Parentage Act, and the 
solutions that it offers to some of these challenges. So let's begin. 

[No Audio: Lawrence v. Texas, 539 U.S. 558 (2003)
•	State laws criminalizing gay sex found unconstitutional
•	“[P]ersonal decisions relating to marriage, procreation, contraception, family 
relationships, child rearing, and education” involve “the most intimate and personal 
choices a person may make in a lifetime, choices central to the liberty protected by the 
Fourteenth Amendment…Persons in a homosexual relationship may seek autonomy for 
these purposes, just as heterosexual persons do.”
•	Homosexuality often used as basis to deny adoption by gays and lesbians ]

Diane Potts:  In looking at the Supreme Court decisions, that have really shaped the laws in this 
area, we actually need to go back to the 2003 decision, in Lawrence versus Texas, which 
concerned Texas' homosexual conduct law. That was the name. It criminalized sexual intimacy 
by same-sex couples, but not identical behavior by different-sex couples. At the time of the 
Supreme Court decision, Texas, and 13 other states had statutes criminalizing sexual relations 
between people of the same sex, and were defended, in a large part by the United States 
Supreme Court's decision in Bowers versus Hardwick, which had upheld a similar Georgia law, 
back several decades prior. In an opinion by Justice Kennedy, Lawrence overruled the Bowers 
decision, and declared that these state laws violated due process and were unconstitutional.

Lawrence recognized that the laws actually demean the lives of gay persons, and that the 
United States Constitution endures so that persons in every generation can invoke its principles 
in their own search for greater freedom. As you can imagine, this was a significant case, for the 
LGBTQ community, in many ways. One important change was that, before Lawrence, many 
states, and adoption agencies, could justify prohibitions on adoption of children by gay couples, 
based upon the theory that such persons engaged in criminal behavior, because of their 
relationships.

[No Audio:  United States v. Windsor, 133 S. Ct. 2675 (2013)
•	Section 3 of the Defense of Marriage Act found unconstitutional
•	“The history of DOMA’s enactment and its own text demonstrate that interference with 
the equal dignity of same-sex marriages, a dignity conferred by the States in the exercise 
of their sovereign power, was more than an incidental effect of the federal statute.  It 
was its essence.”
•	Children of same sex couples raised as concern for unequal treatment ]

Diane Potts:  So during the time between Lawrence, in 2003, and United States versus Windsor, 
in 2013, about ten years later, the right of same-sex couples to marry became really one of the 
most significant social movements in recent history. The Defense of Marriage Act, or DOMA, 
was a federal statute that did two things. Section 2 allowed states to refuse to recognize same-
sex marriages performed legally in other states. And Section 3, which was at issue in Windsor, 
provided a federal definition of the term marriage, and the term spouse. As those terms are 
used in federal laws, and regulations, to mean only a marriage between a man and a woman. 
Section 3 was challenged by Edith Windsor, who was forced to pay estate tax on the property 
that her legal, same-sex spouse, passed her upon death. But because of DOMA, Edith was not 
considered a surviving spouse, entitled to the marital exemption, under the Internal Revenue 
code.

Justice Kennedy, again wrote for the majority, in holding Section 3 of DOMA to be 
unconstitutional. The court noted that DOMA was a significant departure from longstanding 
federalism principles, by really imposing a federal law constriction on state recognized 
marriages, and recognized that DOMA's intended purpose was to harm, and discriminate, 
against same-sex couples. The court also acknowledged that the harm that DOMA posed to 
children, also acknowledged, really for the first time, that there was a harem that these laws 
were posing to children born to same-sex couples.

[No Audio:  Obergefell v. Hodges, 135 S. Ct. 2584 (2015) - Right of same sex couples to marry 
and have marriage recognized by other states ]

Vera Poe: Thank you Diane. So Obergefell, in 2015, was the consolidation of six federal district 
court cases. All of which had found that state law bans on same-sex marriage were 
unconstitutional. The Obergefell opinion, by the way, is one of the files that is available for 
download. So the named plaintiff was James Obergefell, and he is pictured here in this slide, 
with his husband John Arthur, on the tarmac in the Baltimore Airport. The couple had lived in 
Ohio, but they flew to Baltimore about ... In order to get married. John Arthur was terminally ill, 
with ALS, and they were able to marry, Maryland, just a few months before he died. 

So the litigation concerned Ohio's refusal to recognize their out-of-state marriage, and the 
petition sought to have Obergefell listed on his husbands death certificate. Then, later on, a 
different surviving spouse, of another couple, joined as co-plaintiff in the action, after an Ohio 
funeral home refused to release the remains of his spouse to him because he was not listed on 
the death certificate. The Ohio District Court found that Ohio's refusal to recognize the 
marriage of the couple's was discriminatory and stated, "When a state effectively terminates 
the marriage of a same-sex couple, married in another jurisdiction, it intrudes into the realm of 
private marital, family, and intimate relations, specifically protected by the Supreme Court 
United States. 

The split, in the circuits, that prompted the United States Supreme Court to take the issue up, 
came from the 6th circuit. In November of 2014, in the case of De Boer versus Snyder, the 6th 
circuit ruled two to one, that Ohio's ban on same-sex marriage did not violate the US 
Constitution. 

So by the time Obergefell went up, the issue of same-sex marriage had seemed to reach 
something of a tipping point. By then, 36 states, the District of Columbia, and Guam, all had 
legalized gay marriage. The Obergefell decision held that the Constitution entitled same-sex 
couples to civil marriage, quote, on the same terms and conditions as opposite-sex couples. 
Finding marriage to be a fundamental right, Obergefell found that state law, or constitutional 
bans on same-sex marriage, were unconstitutional.

The opinion further found that states could not refuse to recognize a marriage performed in 
another state. In finding a fundamental right to marry, just as had Federal District Court 
decisions below, Obergefell mentioned the harm to the children of same-sex couples, if states 
were allowed to deny them the right to civil marriage. For example, in Oregon, there was a 
voter-approved ban on same-sex marriage that was found unconstitutional, in 2014, in the 
decision of Geiger versus Kitzhaber. That decision mentioned the unfairness of requiring same-
sex partners to adopt, which was indicated as necessary because of the absence of marriage. 
The implication was that marriage would create parentage rights, that otherwise require 
adoption. This would be because most, if not all, states have a marital presumption that the 
spouse of the birth mother is the legal parent of a child born during the marriage.

So, after the oberfell, the oberfell, I always screw this up. The Obergefell decision came out, 
everyone seemed to assume that parentage rights, for same-sex couples were now secure. The 
decision explained how marriage safeguards children and families, and thus draws meanings 
from related rights of child-rearing, procreation, and education. The decision included a 
statement that without the stability and predictability marriage offers, children would suffer 
the stigma of knowing their families are somehow lesser. So equal parentage, for married 
same-sex couples, seemed like it would be a reasonable, and maybe even an inevitable, 
extension of Obergefell's logic. But the decision, at no point, actually reaches this conclusion. 
The lower court cases had raised the issue in six contexts. The right to adopt the children of 
one's spouse. The right to obtain a marriage license. The right to have one's marriage from 
another jurisdiction recognized. The right to be listed on the birth certificate of a child 
conceived using anonymous donors. The right to an amended birth certificate based on an out-
of-state adoption decree. The right to be listed on the death certificate. None of them involved 
the spouse seeking recognition of legal parentage created solely by marriage to a birth mother. 
Although, one of the lower court cases did involve a married female couple, who originally sued 
to seek the addition of the non-bio parent on the birth certificate, and the decision doesn't 
specify that the pregnancy was the result of artificial insemination.

[No Audio:  V.L. v. E.L., 136 S. Ct. 1017 (2016) (per curiam) – Alabama could not refuse to 
recognize Georgia court’s judgment of adoption for lesbian couple even though erroneously 
entered under Georgia law]

Diane Potts:  So following on the heals of Obergefell, was the per curiam decision, that was 
issued last summer. In this case, we had the non-birth mother, VL, who had adopted the 
children born to her lesbian partner, EL. The adoptions' judgment had been entered in Georgia, 
but the couple lived in Alabama. When they split, and there was issues about custody, and 
parenting time, and all of that, the Alabama courts, including its Supreme Court, refused to 
recognize that Georgia adoption judgment as valid. And part of its reasoning was based upon 
Georgia law, but in a unanimous decision, so all then, eight members of the Supreme Court, 
because Justice Scalia had died, at that point. But all eight agreed that the Alabama Supreme 
Court should be reversed, and that Alabama had to give the Georgia judgment, for faith and 
credit.

In my view, this case really may be relevant down the road for child support programs, on a 
couple of different levels. But I think, most looking towards the future, as I'll discuss in my 
remarks, a little later, there are states that are considering extending the parentage 
acknowledgement process to same-sex couples, including the new Uniform Parentage Act. So I 
think that the question really will arise, then, is whether or not those acknowledgements are 
akin to judgments, that must be given full faith and credit across state lines, in compliance with 
the VL decision.

[No Audio: Pavan v. Smith, __ s. Ct. __ (2017) (per curiam).
•	Same sex spouse must be listed as parent on birth certificate
o	Arkansas denied request to add spouse of birth mother to birth certificate after 
national recognition of their 2011 marriage
o	Child conceived with assisted reproduction
•	Right to be listed as legal parent on birth certificate within “the constellation of benefits 
that the States hae lined to marriage” ]

Diane Potts:  So finally, a couple months ago, the Supreme Court issued a decision in Pavan 
versus Smith, and this is a case that does involve parentage of a child born to a same-sex 
marriage. We have included it in your materials, files for download, for you to take a look at, if 
you have not yet read that case. In Pavan, the Arkansas Department of Health refused to add 
same-sex spouses on birth certificates for children born as a result of assisted reproduction. The 
department admitted, however, that it was adding male spouses to the birth certificate, where 
assisted reproduction was used. Arkansas defended its position on state law, which provided 
that, quote, if the mother was married, at the time of either conception or birth, the name of 
her husband shall be entered on the certificate, as the father of the child, end quote. 

This went up through the trial court, appellate court, and the Arkansas Supreme Court 
ultimately agreed with the department, that it did not need to list the name of the same-sex 
spouse on the birth certificate of a child born to that couple. Well, the United States Supreme 
Court reversed. And the majority there held that the decision, the Arkansas decision, really 
denied married, same-sex, couples access to what Obergefell felt referred to as the 
constellation of benefits, that the state has linked to marriage. Pavan held that Obergefell 
prescribed such despair of treatment, between different sex, and same-sex couples, and that 
states may not exclude same-sex couples from civil marriage, on the same terms and conditions 
as opposite-sex couples. The court also explained that several of the plaintiffs, in Obergefell, 
challenged the state's refusal to recognize their same-sex spouse, on the children's birth 
certificate, so it was part of that case.

Finally, the Supreme Court rejected Arkansas's argument that biology really was the underpin 
for the law that allowed the spouse’s name on the birth certificate. The Supreme Court 
reasoned that children born by assisted reproduction, through anonymous sperm donation, 
clearly are not related to the male spouse, and yet his name was placed on that birth 
certificate. I think it's important to note that Pavan, like VL, was a per curiam decision. That 
means that it was not subject to the full round of briefing that US Supreme Court cases 
normally enjoy, nor did it have oral arguments, but Pavan was not unanimous, and our newest 
Justice, Justice Gorsuch, went ahead and wrote for the descent, and was joined by Thomas and 
Alito. What is not known, is whether or not Chief Justice Roberts joined in the majority, because 
those justices names were not listed. Or declined to participate altogether, and there is really 
great speculation, among legal scholars, on that point.

And I also wanted to note that at the time Pavan was decided, there really was a number of 
cases pending in those States Supreme Court's, like Arizona, and federal courts, like the 7th 
Circuit Court of Appeals, based in Chicago, on this birth certificate and marital presumption 
issues for children born to same-sex married couples. So it's really going to be interesting to see 
whether these courts summarily decide the issue, based on Pavan, or whether there will be any 
attempt to differentiate that decision in the lower courts. 

[No Audio: Implications for IV-D Programs
•	Legal parentage for spouse provided by state law
•	Birth certificate reflects legal parentage
•	Pavan requires same sex spouse to be listed if husband would be listed despite not 
being biological parent
•	Programs should recognize the parentage determinations of other states, evidenced by 
the birth certificate ]

Diane Potts: Okay, so Pavan, really was the first national decision regarding the impact of 
Obergefell and parentage rights, for same-sex parents, although, it's very unlikely to be the last. 
As we all know, legal parentage is determined by state law, and generally reflected in the child's 
birth certificate. The IV-D program, uses birth records as proof of parentage. Although these 
records actually corroborate, as opposed to establish legal parentage. I think Pavan is significant 
because, in the context of same-sex married couples, the spouse's name on the birth certificate 
gives effect to the marital presumption, that exists in law, in all states, and is recognized as 
proof of a legal parent-child relationship. But I think it's also important to recognize that the 
lack of a name on a birth certificate, does not prove the absence of legal parentage. Child 
support professionals often need to dig much deeper to determine whether a child has a legal 
parent, or not.

[No Audio:  Possible State Responses to Pavan – States might enact legislation to: weaken or 
eliminate marital presumption or other state law bases for parentage, but laws must apply 
equally to different and same sex couples.  Expressly extend the marital presumption to same 
sex couples.]

Vera Poe: So, as Diane mentioned, it's likely that courts will construe Pavan to require that a 
state recognize the marital presumption of parentage to a same-sex spouse, regardless of 
gender specific language in the state statute. This would be because the marital presumption, 
generally does not require a showing that a husband is a genetic father before it applies. So one 
possible response, to Pavan, in a state that does not want the marital presumption to apply to 
same-sex couples, might be to enact legislation to weaken, or even eliminate, the marital 
presumption. While, this has not happened yet, to my knowledge, there have been some 
efforts in that direction.

An example is Tennessee. In its 2017 session, the Tennessee legislature considered House Bill 
1406, which would have prohibited a second parent on the birth certificate for different-sex as 
well as same-sex spouses. Basically, eliminating the marital presumption all together. Now it 
didn't pass, but House Bill 33 did pass. It was signed by the governor of Tennessee, in April of 
2017, and directs courts to interpret words, and statutes, under their, quote, natural meaning. 
To prevent same-sex spouses from being parents of children conceived with donated sperm.

House Bill 33 was passed shortly after a Tennessee court, in 2017, had found that a same-sex 
spouse has the rights of a husband, for purposes of the artificial insemination statute. Now, 
whether House Bill 33 succeeds in limiting parentage, is in question. The Tennessee Attorney 
General has advised the Tennessee courts to ignore it. So, on the other hand, a state wanting to 
ensure equal parentage, could take the approach of amending its statute, to make it clear that 
it applies to all spouses, regardless of gender. This approach was taken, and was actually 
necessary, in Oregon, which I'll talk about more on a later slide.

[No Audio:  Marital Presumption
•	What is presumed?
•	Historical purpose of marital presumption
•	Versus modern application
•	Rebuttal issues ]

Vera Poe: So in considering the marital presumption, the initial question to ask is exactly what is 
being presumed. Is it genetic paternity? Seemingly not, since the husband doesn't have to 
prove his genetic lineage. For example, a man can meet and marry a pregnant woman, but he 
becomes a legal father. So what else might be presumed? Perhaps that the spouses both intend 
to add a child to their family, and co-parent that child. Maybe it's a presumption that a child, 
that's born into an intact family, is legally related to all the other members of that family, and 
entitled to support from the adults. It might be a presumption that the marital union means 
that a child of one, is the child of both. Or perhaps that the existence of the marital union, 
indicates that the spouse likely has a substantial relationship with the child, that merits 
constitutional protection.

History provides some context for this. The original marital presumptions, from English 
common law, was developed to legitimize children born to married women, when the husband 
was not the biological father. It operated to protect a family from the claims of third parties, 
that they fathered a child with the wife. In other words, the purpose of the marital presumption 
was to protect the family, regardless of biology. So fast forward to modern times. The question 
of whether the statutory marital presumption is extended, even if not amended, could depend 
on whether the presumption is of parentage, or is of paternity. So let's talk about what might 
go into that analysis.

Does the presumption apply, even if the husband knows he's not the biological father? Are the 
courts allowed to deny genetic testing, if the husband has held himself out to be the child's 
parent? Even if he's now arguing he's got a genetic parent? Then, of course, how's the 
presumption rebutted? We all know how we traditionally do this, with a genetic test, but is that 
the only way to rebut? And is that rebuttal conclusive under the law? Or is that merely how it's 
been worked out in practice?

[No Audio:  Marital Presumption Extended.  8 States and the Uniform Parentage Act of 2017 
extend marital presumption to same sex couples by stature: California, Illinois, Maine, 
Minnesota, New Hampshire, Oregon, Vermont, Washington, UPA (2017) ]

Diane Potts: So we have a number of states that have enacted new parentage legislation, post 
Obergefell, or in contemplation of Obergefell, that expressly recognize, in marital presumption 
of parentage for children born to married lesbian couples. The UPA 2017, also very clearly 
extends the marital presumption. It was one of those topics, that we spent some time on, in the 
Uniform Parentage Act debates on whether to completely whether to make the marital 
presumption completely gender-neutral. So that would bring in gay couples, as well as lesbian 
couples. The decision, in the end, was to tie the marital presumption to the marriage to the 
birth mother, which of course can only happen with a man or a woman married to the birth 
mother. But it was interesting to see that, sort of, debate. I'll talk a little bit more about that in 
my remarks for the Uniform Parentage Act. So we have a list of the states there, and then of 
course, UPA 2017 as well.

[No Audio: Presumption Extended by Case Law
•	Arizona (McLaughin v. Jones, 240 Ariz. 560 (2016) (Ariz. Rev. Stat. §25-814 construed in 
gender-neutral manner, birth mother’s female spouse is parent)
•	Indiana (Henderson v. Adams, 209 F.Sup3d 1059 (2016) (Indiana Code §§ 31-9-2-15, 31-
9-2-16, and 31-14-7-1 must be enforced in a manner granting presumption of 
parenthood to be granted to female, same-sex spouse of birth mother)
•	Iowa (Gartner v. Iowa Dept. of Public Health, 830 N.W.2d 335 (2013) (statutory 
presumption (ICA §144.13) of parentage must be applied to married lesbian couples)
•	See also New Hampshire (In re Guardianship of Madelyn B., 98 A.3d 494 (2014) (holding 
out presumption of paternity applied to unmarried lesbian couple) ]

Diane Potts:  But even absent express statutory language, courts are looking to Obergefell. And 
they will now be looking, certainly, to Pavan, to interpret older gender specific paternity laws, 
to fit the new modern family structures. We've listed a number of these cases here. I want to 
urge all of those states, that have those older paternity laws, to look at them very carefully in 
light of Obergefell and Pavan, to see whether or not they pass constitutional muster, or 
whether the gender specific language can be interpreted to be gender-neutral. 

And the last case, that's listed on this slide, is the guardianship of Madeline B., which was out of 
the New Hampshire Supreme Court. New Hampshire had an older, very gender-specific, holding 
out provision, for the establishment of parentage. And the court construed that to be 
constitutionally required to be gender-neutral. In fact, allowed the parentage establishment 
case to go forward, on that basis.

[No Audio:  Second parent adoptions
•	Traditional approach for building legal families
o	Necessary when joint adoption or step-parent adoption not available
•	Allowed by statute or case law in 17 states
o	And some courts in these states grant them
•	23 states prohibit, by statute or caselaw
•	Where second parent adoption is available, cost may be prohibitive]

Vera Poe: Many families, headed by same-sex couples, particularly before marriage equality, 
were built using a two adoption process. One partner would adopt a child, very frequently from 
foster care, and then the other partner would adopt in a separate proceeding. This strategy 
required a cooperative court, since many states allowed adoption, when the existing parent did 
not terminate their own rights, only for a stepparent, which of course, was defined as the 
spouse of the legal parent. The process has not been universally available, and it can be quite 
expensive.

Second-parent adoptions are allowed by either statute, or case law, in 17 states. Those states 
are California, Colorado, Connecticut, Idaho, Illinois, Indiana, Maine, Maryland, Massachusetts, 
Montana, New Jersey, New York, Oklahoma, Oregon, Pennsylvania, Vermont, and Washington. 
There are 10 states that do not explicitly allow, or deny second-parent adoptions and there are 
jurisdictions where the trial courts are granting them anyway. Those jurisdictions are Alaska, 
Delaware, Georgia, Kansas, Minnesota, Nevada, New Hampshire, Rhode Island, Tennessee, and 
my former state of Texas. But there are 23 states that don't allow second-parent adoptions, at 
all, either by statute, or by case law.

[No Audio: Mulitple Parents
•	Increasing recognition of more than 2 parents
•	Scenarios can include:
o	Married couple: tri-parent agreement with birth mother or donated sperm
o	Married couple: joint adoption of child born to surrogate who does not 
terminate own rights
o	Gender neutral marital presumption could result in multiple parents
o	Biological father steps up after another man or woman is established as legal 
parent]

Vera Poe: Let's talk about multiple parents. There are four jurisdictions that expressly permit 
the courts to recognize more than two people as a child's parents. Those states are California, 
Delaware, the District of Columbia, and Maine. But courts in several other states have reached, 
that conclusion is a matter of common law. Courts, in some states, have concluded that a child 
that a child that had two legal parents and one equitable parent was ... There was ... Strike that. 
Have concluded that a child could have two legal parents, and also an equitable parent, who 
would be entitled to at least some of the rights, and duties, of a parent. There are 12 states 
that, one way or another, have allowed for multiple legal parents, in some context.

So the issue may be that, even if your state isn't one of these states, one or more of these 
parents might move to your state, and you might have to deal with the issue, even if your state 
would not grant parentage to more than two. So what do the scenarios look like? Scenarios 
that have, or could result in more than two legal parents, include a married couple who has a 
tri-parenting agreement with, either a birth mother, or perhaps a sperm donor. And this 
scenario has occurred with both same and different sex couples, who are working with a third 
person to create a child. The outcomes vary, but courts in many states have allowed all of them 
to be parents. The scenario might also involve a multi-party relationship. 

There's also the situation of a married couple, who is unable to have a child, and they jointly 
adopt a child that's born to a surrogate, and that surrogate might not terminate their own 
rights. Whether this happens often can depend on the terms of the surrogacy contract, and the 
state law, and it is a very common for male same-sex couples, who are starting families. Diane 
had mentioned that the UPA Committee had talked about a gender-neutral marital 
presumption. That actually exist in the State of Washington. It provides that a person is 
presumed to be the parent of a child, if the person and the mother, or the father, are married 
to each other, and the child is born during the marriage. So under the Washington statute, a 
wife would be a presumed legal parent of the biological child of her husband conceived in an 
extramarital relationship.

[No Audio:  Same Sex Families
•	Some families may have formed before the law recognized them, but resulted in actual 
parent-child relationships
o	This is especially important when the child would otherwise have only one 
parent
•	What are the basic fact patterns programs that you may see?
o	Child born to couple who could not legally marry at the time
o	Child born to one spouse during marriage
o	Child conceived using assisted reproduction and donated sperm ]

Vera Poe:  Same-sex couples have been building families for decades and as the law and policy 
develop in this area, it's important to address the legal parentage for those that started their 
families before marriage equality. These families pose some special challenges. One is that the 
parents may have separated a long time ago, and they jointly raised the children without the 
support of the family law system, or maybe with the use of custody orders. The non-biological 
parents, in these sorts of families, are especially vulnerable to being denied access to the 
children that they parented. The implication for child support programs is pretty obvious. If 
their state law does not provide for parentage, for non-biological parents, children have a 
serious risk of loss of support, if the birth mother separates from that non-biological parent.

The main fact patterns, that child support programs will see, include a child born to a couple 
who could not legally marry at the time that the child was born. This includes many same-sex 
couples, in many states, prior to June of 2015. It could also include a child that's born to one of 
the spouses during their marriage, which is a really familiar fact pattern. But the question to ask 
is, should the law, and the child support program, provide for a different result, if the birth 
mother was married to a woman, and conceive a child with a male, not her spouse, versus if 
she was married to a man? Another fact pattern is a child conceived using assisted 
reproduction, and donated sperm. Does the state law require that the doctor perform the 
insemination? And how does the law treat anonymous, versus known donors?

[No Audio: Different Sex Families
•	What fact patterns do child support programs already see with different sex parents?
o	Husband is not biologically related to child conceived and born during marriage
o	Male who signs the acknowledgment of paternity is not biologically related to 
child
o	Male who is adjudicated a legal father is not biologically related to child
o	Couple uses assisted reproduction ]

Diane Potts: So we've focused this presentation on same-sex parents, but I just want to step 
back, for a moment, and recognize that many of these issues, that were talking through, have 
already arisen, in different-sex parentage scenarios. So what I think is really common, is the fact 
pattern where the birth mother is married, at the time of birth of her child, and yet the 
husband is not the biological father. So we've got the majority of programs today, pursuing the 
biological father, with notice, of course, to the husband, if it becomes clear, from the mother's 
affidavit, or statement, that her husband is not the biological father. There are some programs, 
that still are pursuing the husband for support, even though there is evidence that the husband 
is not the biological father.

I think that as more, and more, programs consider this though, that maybe becoming a little 
less common, because the marital presumption is rebuttable, so it would be a fairly easy lift for 
the husband to seek genetic tests, and to rebut that presumption, because he's not the 
biological father of that child. Of course, we've all seen the cases where the man who signed 
the acknowledgment, turned out not to be the biological father of the child, and we've 
considered the effect of that lack of genetic tie on the acknowledged father, and the genetic 
father that still out there. Predating even acknowledgments, we had men who admitted 
paternity in court, only to later seek genetic tests, and disestablishment of paternity, based on 
the lack of a genetic tie.

Now, finally, while not common to the child support program, there have been husbands who 
have agreed to use sperm donation, for their wives to conceive a child, only to later claim lack 
of a genetic relationship, when the marriage dissolved. There was a famous case, out of Illinois, 
in re MJ, in which the husband made that agreement, or made that argument, that he was not 
the genetic father. The strict terms, of the assisted reproduction statute, in Illinois, had not be 
complied with, and he was trying to get out of paying child support. The Supreme Court said 
that, if we are going to hold at men who have sexual relations with women and don't intend to 
have children, to have to pay support, you sir, who intended to conceive this child, through the 
sperm donation, you will be also required to pay child support.

So you want to take all these situations into account, when you consider that the child support 
program really has long dealt with legal parents, who are not biologically related to their 
children. I think that the only difference, for same-sex individuals, is that for most the time, 
they actually want to be recognized as legal parent. Which could serve to simplify issues for the 
IV-D program, through agreed orders for parentage.

[No Audio: IV-D Legal and Policy Considerations
•	Who to pursue for child support
•	Services that a IV-D agency can or must provide to families
•	Legal approaches to establish parentage for unmarried same sex parents ]

Diane Potts:  Okay, so what are the legal and policy considerations, that programs should be 
considering, at this point? We've got the basic mission, of the child support program, long-
standing mission to establish paternity, and support for children born out of wedlock, and 
securing families with separated parents. While this mission is articulated in a gender specific 
way, the children, I think, the children in need of our services are no less deserving, because 
they were conceived through assistive reproduction, or born into a same-sex parent family. 
Now, parentage establishment is something we've been doing for a long, long time, since the 
program's inception in 1975. And while it may be more difficult to establish parentage, using 
defacto parent, or holding out theory, or intended parent with assisted reproduction, there are 
those of us that remember jury trials for paternity establishment. Which clearly, also were not 
easy ones.

I think for same-sex couples, authority agencies may have a choice, in many cases, of whom to 
pursue for parentage establishment, and support. So I think it's important to make sure that the 
policies are deliberate, that they reflect and respect the Supreme Court precedent in 
Obergefell, and now Pavan, and really make efforts to strengthen families, as opposed to harm 
them. Vera, do you have any anything to add to that?

Vera Poe: Just to add that it is quite challenging. In Oregon, we did have a decision with 
Madrone versus Madrone. Which held that the same sex partner of a woman, who gives birth 
via assisted reproduction, is the parent if they consented to it, and would have been married if 
they were allowed to be at the time. But Oregon law still doesn't have a means to establish 
parentage for a non-biological parent, who was not married to the birth mother, and can't 
establish that they would have been. Which has actually already come up for our program, here 
in Oregon. A few years ago we received an application for services from the birth mother, who 
had planned her children, while in a relationship with another woman. Now, they weren't 
married, or even in a registered domestic partnership, but they both consented to using 
assisted reproduction. In fact, they had both donated eggs to be fertilized, which were then 
implanted in the one of them that planned to carry the child. 

They raised the kids together for two years, and then the non-birth mother left. Genetic testing 
revealed that the eggs implanted happened to have both come from the birth mother, so there 
wasn't a genetic connection. The woman, who did not give birth, was awarded parental rights, 
and parenting time, under a defacto parentage statute, but the court expressly refused to find a 
legally enforceable duty to pay support. Since a couple wasn't married, and there wasn't any 
evidence to suggest that they would have been, we were not able to find a basis to establish a 
child support order.

[No Audio: Key Challenges for Programs
•	Recognizing other states’ bases for parentage
o	Multiple parents
o	Full Faith and Credit
•	Designing policies that provide equal treatment to all families
•	Avoiding disestablishment of existing parent-child relationships without establishment 
of substitute parent ]

Diane Potts: Thanks Vera. So what, do I see, as some of the key challenges for our child support 
program? I think one of the most difficult, and multifaceted, will be the recognition of 
parentage in one state, that differs from another state’s laws. So for an example, if another 
state has included a parent on the birth certificate, will your state consider that as sufficient 
evidence of parentage, to pursue an action for support? I think we all agree that if there is a 
judgment of parentage, that underlies that birth certificate, we're on solid footing with 
pursuing support. But I think a little bit more doubt creeps in, when the inclusion is based on 
the marital presumption. Certainly, pre Pavan, that was the case.

Or an acknowledgement was executed by a same-sex couple, which is being considered, and 
pursued, in a couple of our states. I guess, if you were to ask me what I thought the best policy 
was, I think it's probably to accept, when parentage has been established in another state, and 
there's a legal basis to pursue support, that that policy certainly is in the best interest of 
children. I think another challenge maybe in formulating policies that provide equal treatment, 
regardless of sexual orientation. Our program, for the last 40-some years, has been very much 
devoted to, and focused on, different-sex parent paternity establishment. And broadening that 
to provide equal treatment to same-sex couples, I think is going to be a challenge for several 
programs.

But again, in the end, the children really are the benefit of expanding the breadth of our 
program. You know, I guess finally, to the extent possible, it really may be in the child's best 
interest to take care of all open parentage issues, in one proceeding. So, if for example, let's say 
there's an acknowledged father, who after genetic testing, finds out he's not the genetic father, 
he files an action to challenge that acknowledgement. To what extent do we try to bring the 
genetic father, if we can, at that time, so that the court has before it all the players, all of the all 
of the potential parents for that child, in order to really make the best determination for that 
family. Vera what do you think?

Vera Poe: Well, I think that, in Oregon, we did a lot of thought about that, and I could talk about 
Oregon's approach?

Diane Potts: Yeah, that'd be great.

[No Audio: Oregon’s Approach
•	Extension of marital presumption by statute
o	Legislation overrules dicta in Shineovich v. Kemp, 229 Or App 670, 214 P3d 29, 
rev den, 347 Or 365 (2009) describing presumption as one of biological paternity 
and iapplicable to same sex couples]
•	Policy that applies equally to same and different sex families
•	Procedures to reduce chance of leaving child with only one legal parent ]

Vera Poe: Okay, so for the next several slides, I'll be going over how Oregon addressed many of 
the issues that Diane just brought up. so first, I had mentioned before, that in Oregon, we really 
needed to amend our statute, to make sure that the marital presumption would apply, 
regardless of gender. The reason for this was that, in 2009, the decision of Shineovich versus 
Kemp included dicta that stated that the marital presumption is a presumption that the 
husband is a biological parent. And opined that it would not apply to a same-sex couple. 

Now, that decision was decided in a pretty different legal landscape. Oregon still had an intact 
ban on same-sex marriage. The Supreme Court has not yet issued any of its marriage equality 
rulings. But after those, whether the marital presumption applied, was not decided otherwise 
by any court in Oregon. So we addressed it with legislation, in the 2017 session, to extend it 
expressly by statute. And a copy of the legislation, it's pretty lengthy, because of the 
conforming amendments, but it's in your handouts, available for download, if you want to take 
a look. 

We also redesigned our presumed parentage process, so that it would work equally well, and in 
the same way, regardless of whether the marriage was a same-sex, or a different-sex marriage. 
Finally, we developed procedures that were designed to ensure that we would avoid 
disestablishing a legal parent, if we were not going to be able to establish a substitute legal 
parent. 

[No Audio:  Oregon SB 512 (2017)
•	Creates new section listing ways parentage is established
•	Broadly worded to ensure Oregon will recognize parentage determinations of other 
states or as ordered by a court
•	Replaced gendered terminology with neutral references
o	Except re: paternity establishment based on biology ("filiation”)]
•	Expanded artificial insemination statute to apply to all types of assisted reproduction, 
defined ]

So some notable features of Senate Bill 512, which is our new parentage law, are listed for you 
on this slide. One thing, that it did, is it included a new section, that listed all the ways that 
parentage could be established, under Oregon law.

The section is broadly worded, to ensure that Oregon will recognize parentage determinations 
of other states, or if ordered by court. Another feature of the legislation, is that it replaces 
gender terminology with neutral references, throughout the statutory scheme. That's those 
lengthy conforming amendments. There's one important exception to this. The statutes that 
concern what Oregon calls filiation, which is a reference to paternity establishment, based on 
genetic father's biological connection. Those still use the term paternity.

And then the legislation also expanded the artificial insemination statute, which provides for 
parentage for the spouse. To apply to all types of assisted reproduction, and added a 
comprehensive definition of assisted reproduction. 


[No Audio: Oregon SB 512: New section
“Be It Enacted by the People of the State of Oregon:
      SECTION 1.  Section 2 of this 2017 Act is added to and made a part of ORS chapter 109.
      SECTION 2. (1) Parentage may be established between a person and a child by:
a)	The person having given birth to the child;
b)	An unrebutted presumption of parentage under ORS 109.070;
c)	An adjudication of the person’s maternity or paternity;
d)	Adoption of the child by the person
e)	An effective acknowledgement of paternity by the man under ORS 
109.070 or pursuant to the laws of another state, unless the 
acknowledgement has been rescinded or successfully challenged;
f)	Establishment of paternity by an administrative order issued pursuant to 
ORS chapter 416;
g)	Filiation proceedings; or
h)	Parentage being established or declared by another provision of law.
i)	A person is the mother of a child to whom the person gives birth. ]

Vera Poe: The new section, listing all the ways that parentage can be established, is displayed 
for you on this screen. I'd like to draw your attention to one statement. The provision saying, a 
person is the mother of a child, to whom the person gives birth. This was the least awkward 
way that we were able to come up with, to phrase it. 

But the goal was to ensure that the statute identified who is the mother, which was required 
for Vital Records. Since the mother could have a gender change before, or after, giving birth. 
And we wanted to ensure that the statute would apply, regardless. 

[No Audio: Text of Oregon Marital Presumption (as amended)
109.170(1).  The parentage of a person is rebuttably presumed if:
a)	The person is married to the birth mother at the time of the child’s birth, without a 
judgment of separation, regardless of whether the marriage is void.
b)	The person is married to the birth mother and the child is born within 300 days after the 
marriage is terminated by death, annulment or dissolution or after entry of a judgment 
of separation. ]

The language you see up here, on the statute, is the new Oregon Marital Presumption. During 
the legislation ... Oh, that's wrong. The language has been amended twice in the last decade, or 
so, and has been trending away from a reliance on biology. 

At one point, Oregon's marital presumption was conclusive, but it only applied if the husband 
and wife live together, and a husband was not impotent, or sterile. But legislation, in 2007, 
made the presumption rebuttable, and took out the need for the spouses to live together, or 
any need for the husband to be able to impregnate his wife. And, most importantly, a third-
party, which includes the IV-D agency, could not rebut the, and still cannot rebut the 
presumption, if the spouses are living together. So this is reflective of Oregon public policy, to 
protect the intact family, regardless of biology. 

[No Audio:  Oregon’s Marital Presumption (cont.)
(2)	The parentage of a child established under subsection (1)(a) or (4)(a) of this section may 
be challenged in an action or proceeding by either spouse.  The parentage may not be 
challenged by a person other than a spouse as long as the spouses are married and are 
cohabitating, unless both spouses consent to the challenge.
(3)	If the court finds that it is just and equitable, giving consideration to the interests of the 
parties and the child, the court shall admit evidence offered to rebut the presumption of 
parentage in subsection (1) of this section.]

Vera Poe: What you see on this slide is the provisions regarding rebuttal, and that provision 
saying that only the spouses can challenge, if they're co-habitating. During the legislative 
session, we engaged in a robust debate over what the statute ought to provide regarding 
rebuttal.

And one suggestion was to provide that the presumption could not be overcome t evidence 
that a spouse was not a genetic parent, if that spouse knew that they were not when the child 
was born. Which would apply to female spouses, but also to some male spouses, that know 
that they're not a genetic father, but nevertheless would be a parent under the marital 
presumption. Ultimately, we left the original statutory language, regarding rebuttal, intact. 
Which leaves it to the court to admit evidence, if the court finds that doing so is just 
inequitable, giving consideration to the interests of the parties and the child. 

[No Audio: Oregon’s Policy Strategy
•	Policy does not differentiate between same and different sex marriages
o	Oregon marital presumption applies to any spouse (effective 01/01/18)
o	No inquiry into how child conceived (separate basis for assisted reproduction)
o	Date of Marriage and Child’s DOB are all Child Support Program needs to identify 
spouse as presumed legal parent
•	When contested issue as to rebutting presumption, goes to court ]

Vera Poe: Our general policy approach is to, not differentiate between same and different sex 
marriages.  Our policy statement, which there is a copy of it, available in the files for download. 
It does include a statement, that makes it clear that we do include same-sex married couples, 
but otherwise our policy takes a consistent approach based on whether the child is born during 
a marriage or not. Some features of the policy are that it applies to any spouse. We're not going 
to make an inquiry into how the child was conceived, although there is that separate basis of 
parentage, if the child is a result of assisted reproduction. For us, knowing the date of marriage, 
and the child's date of birth, are all we need to be able to identify the spouse, as a presumed 
legal parent. But if there's a contested issue, as to whether the presumption ought to be 
rebutted, we'll send that case to court, to apply the standard that we looked at in that last slide.



[No Audio: Excerpts from Oregon policy.  The policy…is intended to avoid favoring the interest 
or position of any one party over another.  Presumed parents who object to their own 
disestablishment are disadvantaged by a process that seeks to disestablish based on the birth 
mother’s desires and a lack of biological connection…]

Vera Poe: You see here, it's an excerpt, from on that policy, that you can download. We crafted 
it with the intent to avoid favoring the interest, or position, of any one party over another. So 
even though the mother might have identified a biological father, and may want to disestablish 
the presumed parent, if the presumed parent object's to that, we won't seek disestablishment 
based solely on the lack of a biological connection. And that's both for same-sex, and different-
sex, married couples. 

[No Audio: Tied to Program Mission
Our mission includes the primary objectives of:
	Establishing paternity when a child has only one legal parent
	Setting support when
1.	The parents are separated and
2.	A parent has requested or has been referred for child support services. ]

Vera Poe:  We tried to tailor this policy to our basic program missions. Which are to establish 
paternity, when a child has only one legal parent, and to set support when the parents are 
separated, and a parent, or a caretaker, I guess, has requested, or been referred for child 
support services. So, based on this, we won't pursue a case to establish an alleged father, if a 
child already has two legal parents, and no one has requested, or been referred for 
establishment of a child support order. 

[No Audio: Impact of Birth Record. [A] name on the birth record is sufficient to make a case that 
the person listed as a parent is the legal parent.  However, the absence of a name does not 
constitute evidence that there is no presumed parent.  Further, under ORS 432.380(1), an 
indication on the record that the mother was married at the time of birth constitutes prima 
facie evidence that the marital presumption applies to the child.]

Vera Poe: On this slide is an additional excerpt, which we developed to address that in some 
jurisdictions, state policies may not have allowed the birth mother’s same-sex spouse to be 
listed on the birth certificate, and the birth mother may not have followed through to add them 
later. So as a result, there are some presumed parents that may be excluded from this 
documentation, in spite of a valid marriage license. For example, in Oregon, the Oregon Health 
Authority requires the consent to the birth mother, to alter the names of the parents in the 
birth certificate.

[No Audio: Establishing Bio Dad.  If a presumed parent consents to their disestablishment or 
does not respond to the notice seeking their consent or objection, the Oregon Child Support 
Program will conduct genetic testing of the alleged father and process a disestablishment of the 
presumed parent and establishment of the alleged father if the alleged father is not excluded.
The Program will not conduct genetic testing of a presumed parent who consents to their 
disestablishment when no alleged father has been identified, unless ordered by a court.]

Vera Poe: Our general process includes genetic testing, performed administratively, before 
illegal action is filed. In this context, we'll generally seek to have an inconclusive genetic test 
result, for an alleged father, before we proceed. This is the support our goal of not 
disestablishing the legal parent, unless we have a substitute parent ready to establish. We 
recognize that there will be situations, perhaps because we don't receive cooperation from the 
alleged father for a genetic test, that we may need to file the action and have the court order 
genetic testing. In such a situation, the court might test the presumed parent, and go ahead 
and disestablish, without establishing a substitute parent. But in general, our process is 
designed to avoid this outcome, whenever possible.

[No Audio: Presumed parent can object.  If a presumed parent objects to their 
disestablishment, or to the establishment of the biological father, the Oregon Child Support 
Program will refer the matter to court for determination of parentage without conducting 
genetic tests pursuant to ORS 416.430. ]

It's also intended to ensure that the presumed parent has full opportunity to remain the legal 
parent, even if there is a biological parent, who hasn't been established. Thus, we will certify 
the case to court, if the presumed parent, either objects to their own disestablishment, or to 
the establishment of a biological father. Since DNA results tend to produce an order consistent 
with biology and practice, we won't perform an administrative genetic test before we certify 
the case to court. 

[No Audio: Rebutting Marital Presumption.  Once the case is certified to court, the court may 
order genetic testing under ORS 109.252. ORS 109.070)3) as amended in 2017 provides that if 
the court finds that it is just and equitable, giving consideration to the interests of the parties 
and the child, the court shall admit evidence offered to rebut the presumption of parentage.

This evidence could include evidence of cohabitation with the child, the presumed parent’s and 
alleged father’s former and current relationships with the child, and other facts, in addition to 
genetic test results.]

Vera Poe:  As we all know, traditionally, in child support actions, the marital presumption has 
been rebutted with DNA evidence. But that clearly won't work if the spouse is a woman, and it 
ignores that a non-genetic father should, in some cases, nevertheless remain a legal parent.

In these contexts, rebuttal would be based on relational factors. Such as, were the spouses 
together, or were they separated, and just not legally divorced yet? How involved with the 
spouse? Did they intend to be a parent? Did they behave as a parent, or hold themselves out as 
one? Or perhaps, was a child a product of an affair, or conceived during a separation? So that's 
the gist of Oregon's approach. I'm going to turn you back over to Diane, to talk about the new 
UPA.
[No Audio: Uniform Parentage Act (2017)
•	The Uniform Parentage Act of 2017 implements broad reforms in recognition of 
parental status, including parentage within same sex relationships, de facto parentage, 
and potential recognition of more than two legal parents
•	The 2017 UPA also provides new framework for surrogacy and new requirements for 
retention of genetic information for children conceived through assisted reproduction]

Diane Potts: Thanks Vera. So in late 2015, the Uniform Law Commission, which is made up of all 
of the states, and territories, representatives, from all the states and territories, decided to 
embark on a new, or revised, Uniform Parentage Act. The end result, it really is a broad reform 
of parentage law, it recognizes same-sex relationships, defacto parentage, it's even got a way 
for states, if they're so inclined, to in a very orderly fashion, provide for the recognition of more 
than two legal parents. I'll talk a little bit about that. We also spent a lot of time, and debate on 
surrogacy. There's a new framework for surrogacy in the 2017 Uniform Parentage Act. There 
was a consensus that children, who were conceived through assisted reproduction, be able at 
the point in which they reach majority if the donor is so inclined to agree, that they are able to 
find out the genetic information. Their genetic information.

[No Audio:  ULS’s Charge to Drafting Committee.
•	To amend UPA to address “issues relating to same sex couples, surrogacy, and the right 
of a child to genetic information.”
•	Subsequent additions to charge
o	To improve clarity and flow of entire Act
o	To revise rather than merely amend
o	To address de facto parentage
o	To incorporate federal Rape Survivor Child Custody Act
•	Drafting Committee, Advisors, Observers.]

Diane Potts: So when it was originally can convened, as I said in late 2015, and the work began 
in early 2016, our scope was fairly narrow. We were just going to look at parentage issues 
related to same-sex couples, in line with Obergefell. Surrogacy was a concern, that it was very 
outdated. The last time the UPA had been amended was 2002 and a lot has happened, with 
regard to advancements, and assisted reproductive technologies, and surrogacy, and as I 
mentioned, that right of child to his or her genetic information. So, during the scope of the 
work, over the next 18 months, the chair of the drafting committee went back to the charge, 
and the executive committee, several times, to ask that we broaden our scope. Each time, it 
was allowed. In fact, it is a substantial re-haul of parentage law and it incorporates a number of 
things that states have been really struggling with, for the last several years.

In addition to a number of commissioners from both conservative and more progressive states, 
we had a number of advisors, and observers. NCSEA was an observer for the UPA, and I was 
honored to serve in that role. It really was a highlight of my professional career. It was very 
exciting. We had over a dozen meetings, all together. It was a wide variety of folks, that were 
very interested in getting this right, and I would think we did a really good job. 

[No Audio: Presumptions of Parentage
•	Marital presumptions of parentage apply equally to the spouse of birth mother, 
regardless of spouse’s gender
•	“Holding Out” presumption applies to gender neutrally
•	Overcoming presumptions]

Diane Potts: So let me talk to you ... And I wanted to mention that it's in our materials. We've 
got the official 2017 UPA. It was voted upon by all of the states, and territories, at the meeting, 
in July of this year. Almost unanimously was supported, and adopted, as the new uniform law 
for parentage.

So, as I mentioned, it does contain a marital presumption of parentage tied to the birth mother, 
marriage to the birth mother. It doesn't matter if you're a woman married to the birth mother, 
or a man married to the birth mother, you're going to be presumed to be the parent of that 
child. It is a rebuttable presumption. We also expanded the holding out presumption, which is 
been a part of the UPA for a very long time. But to apply in a gender-neutral fashion, so it's not 
just men in the household, that are holding out the child as their own during the first two years, 
it's going to be women as well. 

And we also included so that the provision now is that a person who resides with the child, for 
the first two years of the child's life, including temporary absences, and holds out the child as 
his or her own child, has presumption of parentage. We also clarified that the lack of a genetic 
tie does not, whether it's from marriage, or holding out, does not necessarily overcome a 
presumption of parentage, but instead requires the court to consider the best interests of the 
child. Vera mentioned the State or Washington, during the gender-neutral marital presumption, 
we debated that, as I mentioned, for a while, and we did not feel like the unintended 
consequence of making the wife of the biological father, who went outside his marriage and 
conceived a child with another woman, that, that wife should be a rebuttable parents of that 
child. So that was the reason we decided to go with the presumption tied to the birth mother.

[No Audio: De facto Parentage.
•	Provides that person claiming to be a de facto parent can petition to be recognized
•	Must prove by clear and convincing evidence number of factors related to functioning as 
parent and establishing bond with child with support of legal parent
•	Pleadings must be verified
•	A de facto parent is a legal parent]

Diane Potts: So one of the things that I think was most ... Was very well debated, and one of 
things that was most well received, was this concept of really statutorily defining de facto 
parentage, and providing guidance to courts. We had the vast majority of states, that have 
already recognized some form of de facto parentage. They may use different terms, equitable 
parents, psychological parents, parents by estoppel. This is by, you know, both by statute, and 
in case law. Many of these states do recognize that a de facto parent really is a legal parent, and 
stands in legal parody with a parent. With two statutes, Maine, and Delaware, that we looked 
at closely, that do treat de facto parents, as legal parents in their UPA.

So it really gives a statutory structure to this concept. One of the things that we were very 
deliberate about, is making sure there was a heightened pleading standard. That had to be met, 
before it would open up litigation, as to whether or not someone was a de facto parent. One of 
the other decisions, and this was probably one of the most contentious, was whether or not it 
would be available only to the person claiming to be the de facto parent, or whether a de facto 
parents status can be hoisted on you. Either by the child support program, or by the ex-wife. 
There was a lot of debate about protecting step parents. Who really, when they enter into a 
relationship with a woman who already has children by another relationship, by wanting them 
to, you know, embrace that family, and not treat the children differently. While at the same 
time, recognizing that very often step parents are not willing to fully adopt children from other 
relationships. 

They, you know, may allow them to call them mom, or dad, but it's the full embrace of the 
financial support. So, after much deliberation, it was decided that, with this rolling out of this 
provision, it would be only limited to those claiming that status. It would not be available to 
those that weren't willing to be de facto parents. It's got to be proved, by clear and convincing 
evidence. So, in addition to the heightened pleading standard, to get into court, in order to 
prove that you are a de facto parent, you've got to prove by clear and convincing evidence a 
number of factors. Those factors include that you resided with the child, as a regular member 
of the child's household for significant period, that you engaged in consistent care taking of the 
child, that you undertook full and permanent responsibilities as a parent of the child without 
expectation of financial compensation.

That hopefully doing away with any claims for nannies. Four, that you held out the child as the 
individual's child, as your child. That you established a bonded and dependent relationship with 
the child, which was parental in nature, and that the other parent of the child actually fostered, 
and supported, the bonded, and dependent relationship, that is required under these 
provisions. Then finally, that, that relationship, between you and the child, is in the best 
interest of the child. So, as you can see, those are quite heavy standards, that you have meet, in 
order to be able to make it to be a de facto parent. But we think that this would provide, for 
states that would like to have some clarity in their law, and give some guidance to courts on 
when a de facto parentage establishment is appropriate and when it's not. We feel that these 
factors really guide the court, in that direction.

[No Audio: Resolving Multiple Claims of Parentage.  
•	As with UPA 2002, it is possible to have more than two possible parents
o	UPA 2002 did not provide test for how to resolve these claims
•	UPA 2017 provides competing claims should be resolved based on best interests of child 
and provides number of factors for court to consider]

Diane Potts: So, with the UPA, of 2002, there was a possibility that there could be more than 
two possible parents. But it didn't really provide a test, on how to resolve those claims. Again, 
you could have an acknowledged father, who signs the acknowledgement right after birth, and 
is not the genetic parent, that you've got the genetic parent as a possible parent, how do you 
resolve that? So we were very deliberate for all children that have got more than one potential 
parent that you would go to a best interest determination, if it's within the statute of 
limitations. 

We also ... You know, we're very careful of not wanting children to be subject to belated claims 
of parentage, when they've got established relationships. So, for the most part, with one 
limited exception, it's a two-year statute of limitations, in which everyone that's interested in 
that child, needs to come in, and make that claim, or be foreclosed from doing that. If they do 
that, the courts going to look at the best interest. 

[No Audio:  Children with More than Two Parents.
•	Contains optional provision allowing courts to recognize more than two legal parents
•	Applies where t here are more than two people with claim to parentage under UPA and 
it would be detrimental to child to recognize only two parents
•	States already recognizing
o	California
o	Main
o	Louisiana
o	Delware]

Diane Potts: You know, California, in 2015, enacted legislation, that expressly allows a court to 
make a determination that a child would have more than two legal parents. With the caveat 
that the standard would be, that not recognizing two legal parents, would cause detrimental 
harm to the child. We also have Maine, that also recognizes that a child can have more than 
two parents. Louisiana does recognize two fathers, in certain situations. Delaware also, likely, 
will allow the recognition of two parents by statute. But the UPA was weighing in on all of those 
statutes, that have already been enacted. We decided that it was going to be an optional 
provision. So what the Uniform Law Commission does, is it brackets this provision. So states are 
going to be able to choose, if they want to enact the UPA. You can choose to have your 
parentage law restricted to two parents, or you can allow the court discretion to find if it's 
going to be detrimental to the child to not find more than two parents.

[No Audio:  Voluntary Acknowledgments of Parentage.
•	Expands acknowledgment process beyond alleged genetic fathers to intended and 
presumed parents
o	Gender neutral
o	Intended parent defined as an individual, married or unmarried, who manifests 
an intent to be legally bound as a parent of a child conceived by assisted 
reproduction]

Diane Potts:  So, the acknowledgement of parentage, paternity that's required, since [Parora 
(?)] by the feds, that every state has, was of great interest to the drafting committee. The 
question, very early on, was whether or not that acknowledgment process could be expanded 
beyond just alleged genetic fathers, who intended, and presumed parents. And there was 
consultation, with the Federal Office of Child Support Enforcement, that whether or not the 
federal requirements for paternity acknowledgment was the minimum standard, that states 
had to have in their processes, and whether states were free to go above and beyond that, and 
extended the acknowledgement to, potentially, same-sex parents. The decision was that the IV-
D requirements are minimum requirements, that states must meet, and that parentage laws 
are traditionally within the states realms. 

So states, if they don't violate the federal requirements, they can in fact, go above and beyond, 
and extended management process. As long as they preserve what is required under the 
federal regs, and title IV-D. As long as they preserve that, they can, in fact, go above and 
beyond. So the decision was, for the drafting committee, they were very interested in doing 
that. So what they made was the acknowledgement process gender-neutral. Opening it up to, 
not only alleged genetic father's, but to presumed parents. Again, that can be because same-
sex marriage is legal in all states. That it can be the wife of a spouse, that's able to sign the 
acknowledgment. In some of those states, that may not extend the marital presumption of 
parentage, you can solidify that relationship, through the acknowledgement process.

It also had intended parent, which they defined as an individual who manifests an intent to be 
legally bound, as a parent, of a child conceived by assisted reproduction. You could go the 
assisted reproduction establishment route. But you could also, if your state has adopted this, 
you could use the acknowledgment process to, again, solidify that relationship, without going 
to court, using the simple civil process. But it's not open to anyone, it is the marriage, you 
know, it is through marriage of the spouse, the birth mother, or the intended parent, through 
assisted reproduction. 

[No Audio: Voluntary Acknowledgments of Parentage.
•	Clarifies that acknowledgments are void if:
o	Child has acknowledged or adjudicated parent
o	Child has presumed parent and that parent has not signed denial of parentage
•	Takes effect upon filing
•	New rescission process
•	Challenges to acknowledgments]

Diane Potts: So it also, the amendments also clarify, that acknowledgements are void, if the 
child already has an acknowledged, or adjudicated parent. It's also gonna be void, if the child 
has a presumed parent, if that parent has not, in conjunction with another person signing the 
acknowledgement, has signed the denial. 
	
There was debate about when the acknowledgement should take effect. And the decision was 
made, that they are to take effect upon filing, with the applicable state department, as opposed 
to being signed. There was hypotheticals about parents signing them, and throwing them in the 
back seat of their car, and being discovered years later. The vital records community weighed 
in, they were one of the observers to the UPA, and they felt strongly that it should be taking 
effect upon filing. In the 2002 UPA, the rescission process was required to be judicial. As we all 
know, it's rescission within 60 days, or the first date of a court appearance, or court proceeding, 
related to the child. Extremely short. We see very few actual rescission's, because of the very 
short duration.

And so the decision was made that we shouldn't further burden that process by requiring it to 
be judicial. Many states, including Illinois, allow for that administrative process in order to 
rescind, and that was a change that the drafting committee agreed to. You know, challenges to 
acknowledgments, there are two different provisions for that. There's a two year limitation for 
both signatories, and non-signatories. So I signed the acknowledgement, I found out I'm not the 
genetic father, I have two years in which to challenge that on fraud, duress or material mistake 
of fact. But there's also a challenge for non-signatories, and this recognized, really, the federal 
requirement that putative fathers have a reasonable opportunity to establish their paternity for 
children. 

So, you've got a two year window, in which an alleged genetic father, even though the child 
already has an acknowledged father or mother, can come in and seek to establish parentage of 
that child. That's going to be dictated, not by fraud, duress or material mistake of fact, it'll be 
dictated by the best interest of the child, and the competing claims of parentage, under Section 
612. 

[No Audio: Other New Provisions.
•	Genetic Testing
•	Rape Survivor Child Custody Act
•	Assisted Reproduction
•	Surrogacy
o	Genetic
o	Gestational
•	Child’s Right to Genetic Information]

Diane Potts: So, the other new provisions, there was a refinement of genetic testing. Nothing 
majorly changed, but the definitions that are very much related only to genetic testing, were 
moved into that article, its Article 5. 

Again, clarifying the role of genetic testing, when we have a parentage act that speaks to same-
sex couples, and the establishment of parentage, due to de facto parentage, and holding out, 
intended parents. All of those ways, of establishing parentage, that are not related to genetics, 
we had to be very careful that the genetic testing provisions be maintained or purposes of the 
child support program, and the 99% of the cases that we see, in which genetic testing will 
establish parentage. While not elevating genetic testing for same-sex couples over the other 
factors, that we thought were as important for those relationships, and those families.

At the very end, we added some provisions related to the Rape Survivor Child Custody Act, 
which is a federal grant program, run through the Department of Justice. That provides, again 
with his very high standards of proof, that if a child is conceived through rape, that, that 
perpetrator and not be able to establish parentage of the child and further subject. If the 
mother wants to invoke these provisions, he may not be able to establish parentage, under this 
protection. While at the same time, preserving the child supports ability to pursue child support 
for that mom and child.

We also spent a number of time refining assisted reproduction. Again, there was great hurdles 
that technology has made, since 2002, so it is brought up to date, in that respect. Surrogacy, we 
redefined into two different areas. Genetic, which mean that as a surrogate, I am using my own 
genetic material, in order for this child. And gestational, where I am not using any of my own 
genetic material. As you can imagine, genetic surrogacy, or traditional surrogacy, feels and 
looks like a lot more like adoption, so there's heightened scrutiny by the court for that. And 
heightened protections for the mom, there as well. I had already mentioned, the child's right to 
genetic information. So, with that, I think we have some time to open it up to Q&A.

[No Audio: Questions? (image of a person surrounded by question marks)]

Curt: Let me share with our audience, as a reminder, the Q&A is located on the right hand side 
of your screen. To submit a question, simply type it in that text box, at bottom, and when 
finished, click the send button, or press enter. Please note, that due to time constraints, our 
speakers may not be able to address all of the questions received. With that I'll turn it to you, 
Sherada, to lead the way through the Q&A.

Sherada Morgan: Okay. I do have a couple of questions here. I'm in a state that has a gender 
specific paternity statue. What should I do, if a parent, who used assisted reproduction to 
conceive her child, applies for our IV-D services?

Vera Poe: I can take this one. 

Sherada Morgan: Okay.

Vera Poe: So if the child's birth certificate identifies two parents, then I think that the program 
should seek support from the absent parent. But if the birth certificate does not reflect the 
second parent, then whether there is one significant, could depend on the state law regarding 
parentage of children born as a result of assistive reproduction. So, some things to look at are 
whether the law provides for automatic parentage for a consenting spouse. If it does, even if 
it's drafted in gender terms, then parentage of the child, born to one of the spouses, is the legal 
child of the other, the statute ought to be applied as if it was gender neutral, and I believe that 
a court would hold this. 

One reason I think that is, that was the holding in the Whitt case, which was a case in 
Tennessee, that at least if timing is any indication, prompted that state to enact the legislation 
that would require the courts to interpret words according to their natural meaning. Which was 
the statute that the Tennessee Attorney General advised the courts should not comply with. 
Probably because it's not expected to survive judicial review.

Sherada Morgan: Okay. I'm in a conservative state. How can I persuade our legislature to adopt 
a 2017 UPA?

Diane Potts: So, I can take this one Vera. We were very conscious. We had a state legislator, as 
one of the commissioners on the drafting committee, from the State of Idaho. We also had 
Minnesota represented. I think even Utah was represented. So that was very much on 
everyone's mind. Is that we not only wanted to have a comprehensive, Uniform Parentage Act. 
We wanted something that states would be interested in enacting. Number one, I think the fact 
that you had commissioners, from conservative states, weighing in on these topics, I think is 
one thing you can point out. But I think, more importantly, the UPA is not creating these 
situations, they're out there, and they are, these modern family structures are happening. 
Whether you're a conservative state, or a progressive state, they're there. 

So the question becomes, do you want a body of law that is going to be able to guide the courts 
on how to protect children born to these relationships, and make sure that they always have 
emotional, and financial support, from both parents. I really do think that, that's what the UPA 
can offer, to families and to states interested in protecting those children.

Sherada Morgan: Okay, I have another one here. What do you see as the major, next issue, 
involving same-sex couples?

Vera Poe: Well, I have an idea on this one. So the Texas Supreme Court, recently reopened a 
case to review whether the state could restrict public benefits, such as health insurance to 
different-sex married couples. So it's the first, at least, well ... It's an effort to try to differentiate 
between same-sex, and different-sex couples for a purpose. Since, you know, public benefits 
can include insurance, and dependent insurance. It could also have some effects on our cases. I 
really have no doubt that that case is going to be going up to the Supreme Court. 

Sherada Morgan: Okay, does the Pavan decision mean that the marital presumption of 
paternity applies to children born to a same-sex married couple?

Diane Potts: So, I'll weigh in on this one first. I would say maybe. You know, clearly Pavan felt 
that because it was a per curiam decision, which means that the justices in the majority thought 
that this was a no-brainer, that this was something that clearly was contemplated by 
Obergefell, and that it was, when you had a state agency, that was applying one set of 
standards for different-sex married couples, versus another set of standards for same-sex 
married couples, and that became so problematic that it was, in the majority's view, an 
automatic reversal. I think, goes a long way to supporting courts that are considering this issue 
right now. But I will say, that in that 7th Circuit Court of Appeals case, it's called Henderson, it's 
out of Indiana. The three-judge panel, that heard arguments a couple weeks before Pavan came 
out, was a little bit suspect on whether or not the marital presumption would apply to same-sex 
married couples, because Indiana was defending their differential treatment based upon 
biology.

What you had in Pavan, is you had the Arkansas Department admitting that husbands, that 
were not adequately related to their children, because of assisted reproduction, were listed on 
their birth certificate. I don't know how often you have that sort of obvious admission of 
differential treatment, just based upon the gender of the spouse, but I do think it really is going 
to make a lot of courts think about that constellation of benefits, that Obergefell said was tied 
to marriage, and how far of an impact that is. we all know that the marital presumption is a 
benefit that a traditional husband and wife always enjoyed. They wouldn't have to go establish 
paternity in a court proceeding, or even use an acknowledgement. This was something that was 
automatic. 

So, to the extent, that it becomes automatic for same-sex couples, I think it is not definitive, but 
again, I think Pavan goes a long way towards making that the law of the land. Vera, what do you 
think? 

Vera Poe: So, I think that the Pavan decision stands for the general proposition, that state 
statutes must be applied to same-sex couples on the same terms as different-sex couples. So I 
think, if a state wouldn't require a husband to demonstrate genetic paternity to be a legal 
parent under the marital presumption, that the Pavan decision would require that standard be 
applied to a same-sex married couple too.

Sherada Morgan: Thank you. I think we have time for one more question. Isn't relying on 
marital presumptions a bit old fashioned? Doesn't it have the potential to leave out the bio-
dad, who wants to be in the child's life? And isn't that harmful to the child?

Vera Poe: So I have a comment on this. So it may be old-fashioned, but think of what the 
situation would be if we didn't have it. we would have children born with only one legal parent 
to start with. Then, the other parent, whether it be a same-sex, or different-sex parent, would 
have to be established in some other way. Maybe you can do a genetic test, and establish the 
husband, but ... I think that it's wonderful when biological fathers want to be in their child's life, 
but I think that a state can, and many states have, including Oregon, enact policy that says that 
they won't be allowed to disrupt an intact, nuclear family with that claim. Diane thoughts?

Diane Potts: No, I think you hit it on the head. I think that it is not really old-fashioned. It is one 
of those benefits that is tied to marriage, and has been tied to marriage since the case of Lords 
Mansfield, before that. I mean, it's been a part of our fabric, of our culture, and our society, for 
so long that, I think doing away with it would cause great harm, and leave us with a lot more 
parentage establishment cases. I will say, as far as potential to leave out bio-dad's, you know 
we do have, in the UPA, the recognition that even if a child is born into a marriage, that an 
alleged genetic father has two years to come in, and the court can determine whether it's in the 
best interest of the child to do that. So again, and orderly fashion, two years, you've got that 
opportunity, and then the court can decide in that role.

Sherada Morgan: Okay, I think that is our time, at this point. At the bottom of the screen, there 
are files for download. You all are more than welcome to download those. Actually, please do. 
thank you so much Diane, and Vera, for your input, and your expertise in this area, and we'll 
turn it back over to Curt.

[No Audio:  Thank you for your time!  
Vera Poe – vera.l.poe@joj.state.or.us
Diane Potts – dpotts@csfmail.org]

Curt: Thank you very much and as we conclude today's presentation, please stay connected to 
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