Family Law

What Is the Legal Definition of a Parent Under the Uniform Parentage Act?

By Melissa Heinig, Attorney
Learn more about the Uniform Parentage Act and how it's changing the definition of family.

What Is the Uniform Parentage Act?

In 1973, all states adopted the Uniform Parentage Act (UPA), which introduced a framework for establishing paternity for children of married and unmarried couples. In other words, the Act created a way for the courts to identify a child’s legal parents, regardless of marital status.

The first major revision of the Act was in 2002, which addressed the changing pace of medically assisted reproduction and added a paternity registry. Additionally, the update included a provision to include surrogacy agreements and to establish the parentage of children born from such contracts. Surrogacy was relatively new in 2002, so only a handful of states adopted the provisions from the update.

In 2015, the United States Supreme Court issued a historic ruling legalizing same-sex marriage throughout the country. As a result of the verdict, in 2017 the UPA received another overhaul, complete with provisions that:

  • changed many terms to gender-neutral language to protect children born from same-sex marriages
  • updated the surrogacy provisions of the Act
  • added a new article that addresses the rights of children born from donor-assisted conception, like the child’s right to access medical and identifying information from the donor (if the donor agreed)
  • included a new provision that precludes the establishment of a parent-child relationship between a child and parent, if that child was a result of a sexual assault, and
  • added a rule for the states to establish a de facto parental status of a legal parent who is not biologically related to the child.

The most recent updates to the UPA promote the well-being of all children, especially those born to same-sex parents, unmarried parents, and children born through assisted reproduction, like in-vitro fertilization.

The UPA and its updates aren’t mandatory throughout the United States, and the decision of whether to adopt the most recent version of the Act is up to the individual state.

What Constitutes a Legal Parent Under the Uniform Parentage Act?

Under the original version of the UPA, establishing a parent-child relationship was limited. Typically, the court identified the child’s mother to be a woman who either gave birth to the child or legally adopted the child. The court deemed a man to be a child’s father if the man was biologically related to the child or legally adopted the child.

In the most recent update to the UPA, the definition of a parent expanded to include reproductive technology and children born to same-sex couples. When a state adopts the 2017 version of the UPA, it agrees that an individual may become the child’s legal parent in any of the following ways:

Giving Birth Doesn’t Always Mean You’re the Legal Mother

Before the advance of scientific technology, the definition of a legal mother was simple: someone who gave birth to a child. But today it’s not so black and white. Many families are using assisted reproductive technology to grow their families, including hiring surrogate mothers. A surrogate mother is one who carries a woman’s fertilized egg through a viable pregnancy and gives birth to the child.

Even though a gestational surrogate gives birth to the child, states that have adopted the recent version of the UPA only identify the biological mother (the woman whose egg produced the pregnancy,) as the child’s legal parent.

Terminated Parental Rights

If for any reason, the court terminates a parent’s rights to a child, the UPA precludes the court from identifying the individual as the child’s legal parent. Courts terminate parental rights for a variety of reasons, like abuse, neglect, or abandonment.

Two, Same Gender Legal Parents

The 2017 update to the UPA removed most gender terms from the Act. As a result of the update, children may legally have two parents, and those parents can be from one or both genders. The update ensures that children born from same-sex couples have the same legal rights as children from opposite-sex couples.

The update also allows the court to identify two legal mothers for a child and no legal father. Some same-sex couples utilize the services of a sperm bank, in which the recipients choose anonymous donor sperm to impregnate one of the women. Donors sign a legal agreement terminating their parental rights before the agency will allow them to donate their sperm.

In the past, courts restricted parentage to one mother and one father.

What Is a De Facto Parent?

Among the changes to the Uniform Parentage Act is the recognition of “de facto” parents. A de facto parent is an individual who has regularly cared for a child’s basic needs and acted as a parent to the child. The inclusion of a de facto parent provision opens the door for non-biological or non-legal parents to establish parental rights of a child, which is a significant change from past versions of the Act.

Under the 2017 UPA, a de facto parent is one who:

  • resided with the child as a regular member of the child’s household for a significant period
  • engaged in the consistent caretaking of the child
  • took on the responsibilities of a full and permanent parent of the child, without the expectation of financial compensation (in other words, the individual wasn’t a paid foster parent)
  • treated the child as a biological child and presented the relationship as a parent-child relationship
  • established a bonded and dependent parent-child relationship, with at least one legal parent’s approval, and
  • can demonstrate that continuing the relationship with the child is in the child’s best interest.

Although the Uniform Parentage Act has advanced recently and included provisions that protect all children, it doesn’t necessarily change how your state handles custody, paternity, or a child’s rights. Instead, each state uses the Act as a framework for developing ideal laws according to the state’s policies and beliefs. States are free to accept all, none, or some of the provisions of the UPA.

If you’re not sure whether your state follows the UPA, contact an experienced family law attorney near you for more information.

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