Monday, September 29, 2008

A Child Has a Constitutional Right to a Determination of His or Her Parentage

A decision from early September, In Re: Parentage of Q.A.L., docket No. 35664-2 (Div. 2, Sept. 3, 2008), held that a child has a constitutional right to participate in a proceeding regarding his own paternity. To protect this right, the child is entitled to a court-appointed guardian ad litem.

The decision modifies black-letter statutory law. Under the paternity statute, an unacknowledged father has only two years to file a paternity action where someone else has been either acknowledged or adjudicated the father.

In this case, the unacknowledged father filed the paternity action two months after he got the results of a paternity test showing that he was the father but missed the statutory two-year deadline. The court waived the deadline because the child had a constitutional interest in the outcome of the paternity action, which trumped the statutory deadline.

One of these interests was the child’s Native American heritage. The unacknowledged father was Native American. Native American rights, including rights of inheritance and the right to enroll in a federally recognized Indian Tribe go to the child regardless of the legal relationship of the Native American parent to the child.

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