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When Can Non Biological Parent Get Parental Rights And Responsibilities?

Posted by attorney Andrew Myers

Step parents and adoptive parents exercise parental rights every day. In some cases, grandparents get parental rights. But two 2008 cases address the issue of parental rights where the apparent father may or may not be the biological or adoptive parent. In 2001, Mrs. X gave birth, and Mr. Y was listed as father on the birth certificate. They were not married and haven't lived together since the birth. But, X and Y signed an affidavit of paternity listing Y as the child's father. Mr. Y maintained contact, caring for the child three or four days every week. In 2004 Mrs. X obtained a child support order against Mr. Y. In 2006, the two disagreed about schooling. Y filed a petition to establish his paternal rights. Then for the first time, Mrs. X claimed that Y was not the biological father. The Portsmouth Family Division Court then ordered paternity testing. Sure enough, Y was not the biological father. In "Matter of J.B. and J.G.", decided on August 5, 2008, the New Hampshire Supreme Court held that the non biological father had standing to seek full parental rights and responsibilities. The negative DNA test didn't stop the request for parental rights and responsibilities. Remember, in 2004, Mrs. X actively sought and received child support. By doing that, the court said, she acknowledged the man's fatherhood status. In 2005 the New Hampshire legislature replaced the long standing custody law with a "Parental Rights and Responsibilities" statute. This version defines the rights of parents. But, it doesn't define the term parent. Such rights were left open to stepparents or grandparents if in the best interest of children. Rejecting the dictionary definition of parent, the court observed that the law allows many alternate routes to establishing parental rights. For example, a presumption of legitimacy goes to a child born to married parents. Paternity can be established by petitioning the court. So, lack of biological connection does not end the analysis. In an earlier case, the New Hampshire Supreme Court reversed a Derry Family Division Court order that a father undergo genetic testing. There, an unmarried Derry couple had a child in Lawrence, MA, and both signed the birth certificate. When the relationship ended and the father sought custody, the Derry court granted the mother's request for genetic testing of the purported father. But, the Supreme Court called the Derry Court's order erroneous. The Massachusetts acknowledgement of parentage is given full faith and credit under the U.S Constitution. The child had bonded with the father. In reversing the Derry Court's order, the Supreme Court said the interests of certainty, finality, stability, and continuity in support, both financial and emotional override the need for genetic tests. (Matter of Gendron & Plaistek, decided May 20, 2008.)

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