In 2006, Oklahoma adopted the Uniform Parentage Act, or UPA, drafted by the National Conference of Commissioners for Uniform State Laws (NCCUSL). The UPA defines who is a legal parent of a minor child, and provides a procedure for a legal parent to challenge parentage in Oklahoma. There is a specific process for challenging each type of legal parentage. Additionally, the process changes depending on the age of the minor child when the parent files the parentage challenge.
Presumed Parents and the Challenge Process
A presumed parent is a person who is the legal parent of a child by operation of law. In other words, this person is a legal parent because Oklahoma law says he/she is a legal parent. These presumptions of parentage exist regardless of the sex/gender of the mother’s spouse or the person holding the child out. There are several different ways a person becomes a presumed parent.
- If a woman gives birth to a child when she is married, then that woman’s spouse is the presumed legal parent of the minor child.
- If a woman gives birth to a child within 300 days after her marriage ends in divorce, legal separation, or annulment, then that woman’s prior spouse is the presumed legal parent of the minor child.
- If a woman gives birth to a child and marries a person after the child’s birth and that person voluntarily asserts parentage of the child in a record, that woman’s spouse is the presumed legal parent of the minor child.
- If a person, other than the woman who gave birth to the child, lives with the child for the first two years of the child’s life and holds the child out as his/her child, that person is the presumed legal parent of the minor child.
To challenge a presumption of parentage created in any of the four scenarios, the legal parent has a couple of options. If the child is under the age of two, a legal parent may be able to disestablish parentage without going to court. Once the child reaches the age of two, a legal parent will only be able to challenge parentage by going to court.
The easiest way to challenge a presumption of parentage created by marriage is for the spouse to sign a Denial of Parentage (DOP) and for the biological father to sign an Acknowledgement of Paternity (AOP). If both of these documents are signed prior to the child’s second birthdate, then the spouse has successfully challenged legal parentage and this person is no longer the legal parent of the minor child. No court order or genetic testing is required for the parent to challenge parentage using this method. This option is not available for a parent who is a presumed parent based on the 4th presumption above.
If the presumed parent is unable to disestablish parentage using AOP/DOP method, this person will have to file a court action to challenge parentage. If the child is under the age of two, this process requires a formal motion for genetic testing and a finding by the court that genetic testing would not be contrary to the child’s best interests. If the genetic test results show that the presumed parent is not the biological parent, then the court will enter an Order of Non-Parentage, and this person will no longer be legally responsible for this minor child.
If the child is over the age of two, the court has to determine whether the challenging party can bring the challenge. The challenging party may bring the challenge in limited circumstances as outlined in 10 O.S. § 7700-607(b), (c) and (d). If the court finds it can hear the challenge, the court will order genetic testing if in the best interest of the minor child. In some situations, the court may have to appoint a guardian ad litem to interview the child and the parties. This person will provide a recommendation to the court as to whether genetic testing would be in the child’s best interests.
Acknowledged Fathers and the Challenge Process
When a man signs an AOP, he becomes an acknowledged father. The AOP has the same effect as a court order establishing parentage. The statute is clear that an AOP shall only be used by the woman who gave birth to the child and the biological father of the child. For example, a non-biological parent may NOT use an AOP to establish parentage, regardless of the sex of the non-biological parent. This non-biological parent will need to go to court to establish his or her parentage.
Either parent may rescind the AOP within 60 days of signing or before the date of the first hearing to which the signatory is a party, before a court to adjudicate an issue relating to the child, including a proceeding that establishes support. If a parent who signed the AOP is a minor at the time of signing, the minor parent may rescind the AOP within 60 days of turning age 18.
If the parties have not rescinded the AOP, an acknowledged father must file a formal challenge in court on the basis of material mistake of fact or duress before the child’s second birthdate, or on the basis of fraud before the child’s eighteenth birthdate. The challenging party must show that the AOP was signed because of fraud, duress, or a material mistake of fact. If the court finds by clear and convincing evidence that there is fraud, duress, or material mistake of fact, the court must determine if a guardian ad litem is required and obtain a guardian ad litem’s recommendation before proceeding to the best interest hearing. If the court determines that genetic testing would not be contrary to the child’s best interests, the court will order genetic testing. If the genetic test results show that the acknowledged father is not the biological father or that another man is the biological father, then the court will enter an Order of Non-Parentage, and the acknowledged father will no longer be legally responsible for this minor child. If the genetic test results show the acknowledged father is the biological father, then the court will enter an Order confirming the existing legal father-child relationship.
If the acknowledged father waits to file his challenge after the child is two and is unable to assert a claim for fraud, he may still have a remedy. If the mother, biological father, and the acknowledged father all agree to switch the child’s legal father, the court would have to appoint a guardian ad litem, conduct a best interest hearing, order genetic testing of one of the men, and enter a final order adjudicating parentage. The court may choose to test the acknowledged father instead of the alleged biological father to prevent any harm to the child when the child has an established relationship with the alleged biological father. Whatever happens in this scenario, the court is prohibited from leaving the child without a legal father – one of the two men will be adjudicated as the legal father of the child.
Adjudicated Parents and the Challenge Process
When there is a court order determining parentage such as in a default administrative NOPSO action, district court paternity order, or district court divorce decree, the legal parent may only challenge parentage by vacating or appealing the court order. Based on the facts of the case, there may be a limited timeframe for challenging parentage.
Please see the Challenging Parentage in Oklahoma table detailing the challenge process for each type of legal parent.