Parentage

Note: If you carried a child for someone else, see “The child was born through a surrogacy agreement” below.

If you are the birth mother, you do not have to take any action to have the rights of a parent of your child.

Birth mothers are sometimes asked to sign a Voluntary Acknowledgment of Parentage (sometimes called a “VAP” or “AOP” if the form is titled “Acknowledgment of Parentage”) at the hospital. You do not have to sign a VAP. Sign only after you understand all the consequences of signing it, particularly if the other person signing it is not the biological father or someone you intend, long term, to be a parent of your child.

A VAP does not establish parentage unless both the birth mother and the other intended parent have signed the VAP. If you both signed the VAP, you do not have to take further action to establish your parental rights as long as the following steps are taken [§ 301, 305]:

• The VAP is witnessed and signed by at least one person other than the parents.
• The VAP is filed with the Vermont Department of Health.

What should I do if I do not want the other person to be declared to be a parent?

There are many ways to challenge the right of someone to be declared a parent if you do not want them to be. The law is so new and the situations so different, we recommend that you contact a lawyer to help you decide how to proceed.

Here are some specific situations for you to be aware of:

1. You do not have to sign a VAP. If you are not sure what the consequences are of signing it, do not sign. Seek advice from a lawyer who practices family law.
2. Want to get rid of a VAP? If you want to void, rescind or nullify a VAP, contact a lawyer for help as soon as possible. The closer in time you ask to have the VAP voided, the less complicated it will be.
3. Has there been abuse? If the child, you or another parent were abused by the person who wants to be declared a parent, you can fight the court action. Here are examples of what you can show the court for why the court should find the person not to be a parent: Within the past 10 years,

• The other person was convicted of domestic assault, sexual assault, or sexual exploitation of the child, you or another parent of the child,
• The other person was the subject of a final abuse protection order because the person was found to have committed abuse against the child, you or another parent of the child, or
• The Department of Children and Families found that the other person abused the child, you or another parent of the child.

4. Was the child born as a result of sexual assault? If so, you can prevent the person who assaulted you from being declared a parent of the child. 15C V.S.A. Chapter 6, § 616.

Note: If you donated your sperm for a child to be conceived for someone else, see either of the sections below: “The child was born through assisted reproduction” or “The child was born through a surrogacy agreement”.

Note: If the child was born as a result of sexual assault, the birth mother can prevent you from being declared a parent of the child. 15C V.S.A. Chapter 6, § 616.

Otherwise, there are multiple ways a biological father may be declared to be the parent of a child.

Did you sign a Voluntary Acknowledgment of Parentage (VAP) when the child was born?  If so, you will be considered the father of the child until a court rules otherwise or the VAP is rescinded. 15C V.S.A. Chapter 3.

Has the mother or the State of Vermont filed a court action to have you declared a parent? Did you admit in a court action that you are the father of the child? If so, the court may find you to be the father unless there is reason under the law not to. 15C V.S.A. Chapter 1, § 112.

If you want to be declared a parent, you can petition for parentage and ask for genetic testing. You will have to give the court facts that show that you are the parent of the child before the court will order the child to be tested. You cannot use genetic testing to obtain rights and responsibilities of a parent even if you are the biological parent if the child was conceived through assisted technology or a surrogacy agreement in which you were not intended to be a parent. 15C V.S.A. Chapter 6. (If you think you are not the biological parent of the child and do not want to be declared a parent, you can ask the court to order genetic testing to disprove your responsibility for the child.)

If you have been married to the birth mother, you might be found to be a “presumed parent.” You would have to fit into one of the following categories. 15C V.S.A. Chapter 4.

You may be determined to be a “presumed parent” if:

• You were married to the birth mother and the child was born during the marriage.
• You were married to the birth mother and the child was born within 300 days of when the marriage ended by divorce, dissolution, annulment, declaration of invalidity, or death.
• You were married the birth mother after the birth of the child, you asserted parentage, and you agreed to be and are named as a parent on the birth certificate.

Has there been abuse? If you have been abusive to the birth mother, she can oppose your being named a parent. She can use evidence of duress, coercion or threat of harm to show that even though you may have held yourself out as the parent, you should not be found to be a parent. That evidence may be that any of the following occurred within the past 10 years:

• You were convicted of domestic assault, sexual assault, or sexual exploitation of the child or a parent of the child,
• You were the subject of a final abuse protection order because you were found to have committed abuse against the child or a parent of the child, or
• The Department of Children and Families found that you abused the child or a parent of the child.

If you lived with the child and birth mother for the first two years of the child’s life (and you are not married to the birth mother), you may be determined to be a parent of the child. The law calls you a “presumed parent.” Both you and the birth mother must have openly held out the child as your child. 15C V.S.A. Chapter 4. (If the child was conceived through assisted technology or a surrogacy agreement, Chapter 7 or 8 control the determination of parentage.)

Has there been abuse? If you have been abusive to the birth mother, she can oppose your being named a parent. She can use evidence of duress, coercion or threat of harm to show that even though you may have held yourself out as the parent, you should not be found to be a parent. That evidence may be that any of the following occurred within the past 10 years:

• You were convicted of domestic assault, sexual assault, or sexual exploitation of the child or a parent of the child,
• You were the subject of a final abuse protection order because you were found to have committed abuse against the child or a parent of the child, or
• The Department of Children and Families found that you abused the child or a parent of the child.

You may be determined to be a “de facto parent” of a child if you can show each of the following. 15C V.S.A. Chapter 5. (“De facto” means that the person is “in fact” or “in effect” the parent of the child even if they are not the biological parent of the child.)

For the court to find you a “de facto parent”, you must have:

1. lived with the child as a regular member of the household for a significant period of time
2. been a consistent caretaker of the child
3. undertaken full and permanent responsibilities of a parent without expectation of financial compensation
4. held the child out as your own
5. established a bonded and dependent relationship with the child of a parental nature
6. had both parents fostering or supporting that relationship, and
7. must prove to the court that continuing the relationship between you and the child is in the best interests of the child.

The person claiming to be a “de facto parent” must convince the court of each of the elements above by “clear and convincing evidence”.

Factors that a court may consider when determining “best interests of the child” are listed below in “Court Action.”

Has there been abuse? If you have been abusive to the child or to the other parent, an opposing parent can use evidence of duress, coercion or threat of harm against you. For example, that evidence could be used to show that even though you may have held yourself out as the parent (#4 above), or even though the other parent may have appeared to foster a parental relationship between you and the child (# 6 above), you should not be found to be a “de facto parent.” 

Evidence that any of the following occurred within the past 10 years might be used against you:

• You were convicted of domestic assault, sexual assault, or sexual exploitation of the child or a parent of the child.
• You were the subject of a final abuse protection order because you were found to have committed abuse against the child or a parent of the child.
• The Department of Children and Families found that you abused the child or a parent of the child.

Chapter 7 covers situations where a child is born after being conceived by someone contributing a sperm, egg, or embryo. The persons who intended to become parents will be parents and the person who did not, will not. It is all about the intention of the people involved. All of the requirements of Chapter 7 must be met.

Example 1: Lauren and Alexis want a child. Lauren bears a child with sperm from a sperm donor (not through sexual intercourse). Before Lauren became pregnant, she and Alexis signed a form consenting to the use of assisted reproduction and specifying that both intended to become parents of the child. Lauren and Alexis are both parents of the child. The sperm donor is not.

Example 2: Kayla and Kevin want a child but Kevin cannot produce sperm and Kayla has eggs but no fallopian tubes. If Kayla and Kevin sign the necessary documents and Kayla becomes pregnant with her biological child and donated sperm, she and Kevin will become parents and the sperm donor will not. (If the child is the biological child of both Kevin and Kayla, parentage can be established as biological parents and need not be under Chapter 7 even if assisted reproduction was required.)

Chapter 7 does not cover children who are conceived by sexual intercourse, even if there is a donor who does not intend to be a parent. Chapter 8 covers children born through a surrogacy agreement.

If you have questions or want legal counsel regarding parentage through assisted reproduction, we recommend that you talk with a private lawyer. Vermont Legal Aid and Legal Services Vermont do not give advice in this area. The Vermont Bar Association can help you find a lawyer who practices in this area of the law.

Chapter 8 covers children born through a surrogacy agreement, called a “gestational carrier agreement.” Chapter 8 contains specific requirements for who can be a gestational carrier and the formalities that must be honored before Vermont will recognize a person as a parent of a child born through surrogacy.

With one exception, intended parents cannot use this section for a surrogate mother to carry her biological child for the intended parents. The one exception is when the surrogate mother is the sister of the intended mother.

Example 1: Brandon and Christopher want a child. Samantha agrees to carry a child that is Brandon’s biological child and the child of an egg donor. All the requirements of Chapter 8 are met, including that Brandon and Christopher intend to become parents and Samantha does not. Brandon and Christopher become parents; Samantha does not.

Example 2: Ryan and Justin want a child but neither can or wants to donate sperm. Ashley agrees to carry a child conceived with the sperm and egg of unknown donors. All the requirements of Chapter 8 are met. Ryan and Justin become parents; Ashley does not.

Example 3: Nicole and Josh want a child but Nicole does not produce eggs. Nicole’s sister Stephanie agrees to carry a child for Nicole and Josh. Stephanie is inseminated with Josh’s sperm through a medical procedure (not through intercourse [§802(a)(1)]). If all the requirements of Chapter 8 are meet, Nicole and Josh will become parents; Stephanie will not.

Chapter 8 does not cover children who are conceived by sexual intercourse, even if there is a donor who does not intend to be a parent. Chapter 7 covers children born through assisted reproduction when there is not a surrogacy agreement.

If you have questions or want legal counsel regarding parentage through a gestational carrier, we recommend that you talk with a private lawyer. Vermont Legal Aid and Legal Services Vermont do not give advice in this area. The Vermont Bar Association can help you find a lawyer who practices in this area of the law.