A lot has changed in Missouri since 1987. For me personally, I had been graduated from law school the year before and was enjoying my first job as a real lawyer, as a clerk for the Missouri Court of Appeals. I now have been in private practice for more than 30 years. Many of my law school classmates have children who have passed the Bar and joined them in practice. As my practice is focused on family law, it is frustrating that Missouri laws has not kept up with the changing times.
In 1987, Missouri adopted virtually the entire Uniform Parentage Act (the ”UPA”). The drafters of the UPA stated that the Act was intended to provide a uniform legal framework for establishing parent-child relationships, and it has provided clarity and structure in that regard. The UPA was originally drafted in 1973, and a lot has changed in the intervening almost half century and the Act has been amended to reflect many of those changes, most significantly with the 2017 amendments. It is time for Missouri to catch up.
In fairness, the Missouri UPA has been amended with respect to inter-state establishment and collection of child support (UIFSA) and jurisdiction of child custody cases when multiple states are involved (UCCJEA). None of these amendments address the changing ways that families are being created. Missouri families and children – especially children – deserve the clarity provided by the 2017 UPA.
Since 1987, same sex marriage has been ruled constitutional by the US Supreme Court and it is now legal in Missouri. Even so, a child born to one woman who is married to another woman is not legally the child of the spouse who did not give birth without a formal adoption. The 2017 UPA takes care of this illogical result, by referring to “the individual and the woman who gave birth to the child” when discussing the marital status of parents.
The Missouri UPA only refers to one method of assisted reproduction, in vitro fertilization, and specifically requires a husband to consent to his wife undergoing the procedure. No reference is made to the other methods of creating a child. This leaves a wide gap in the law. The 2017 UPA comprehensively addresses this aspect of parent-child relationships.
Further, the Missouri UPA has no provisions addressing children resulting from assistive medical technology following the death of one of the donors of the requisite genetic material. As medical science expands boundaries, these situations are possible and may be expected to occur more frequently.
The Missouri UPA contains a confusing and ineffective directive about how the court should proceed where multiple individual claim parentage rights under the UPA, stating “[i]f two or more presumptions arise which conflict with each other, the presumption which on the facts is founded on the weightier considerations of policy and logic controls.” The 2017 ACT cuts through the nonsense and lays out clear guidelines, including an option for adopting states to choose an option that allows for the possibility that a child may have more than two parents.
On a personal level, having been involved in what I believe was one of the first cases in Missouri in which an argument was made that a non-biological parent should be recognized as an equitable parent, I applaud the 2017 UPA for including recognition of a “de facto parent” with full legal rights as a parent. As the Missouri Supreme Court has declined to expand the law to do this, it is long past time for Missouri to protect those essential and important equitable parents and their children. There are very strict requirements for establishing legal parentage rights as a de facto or equitable parent to quell fears of a flood of unwarranted litigation.
The 2017 Amendment has specific provisions for preventing the perpetrator of sexual assault from seeking a determination of parentage in appropriate circumstances.
The 2017 UPA also allows for the court to issue a parentage order before the birth of the child, although the order or judgment is stayed until the birth of the child. This may be effective in allowing the party not giving birth to the child to have hospital access, but careful drafting of the judgment or order will be required. For those of us who have fought the good fight to get the non-birth parent access to the hospital nursery and for those non-birthing parents seeking access to their newborn, this would be welcome news.
The time for the Legislature to act is now. The 2017 UPA must become law in Missouri.