Comment

(This is section 607 of the UPA.)

Source: UPA (1973) § 6; cf. UPC (1993) § 2-114(c).

This section deals with difficult issues. First, it establishes the right of a mother or a presumed marital or nonmarital father to challenge the presumption of his paternity established by § 204. Second, it clarifies the right of a third- party male to claim paternity of a child who has an existing presumed father.

UPA (1973) § 6(a) places a [five-year] limitation on the time in which a proceeding may be brought "for the purpose of declaring the non-existence of the father and child relationship presumed under [the Act]." At that time, the comment noted that:

"Ten states have denied standing to a man claiming to be the father when the mother was married to another at the time of the child's birth. In some of these states, even though a presumed father may seek to rebut his presumed paternity, a third-party male will be denied standing to raise that same issue."

As of the year 2000, the right of an "outsider" to claim paternity of a child born to a married woman varies considerably among the states. Thirty-three states allow a man alleging himself to be the father of a child with a presumed father to rebut the marital presumption. Some states have granted this right through legislation, while in other states case law has recognized the alleged father's right to rebut the presumption and establish his paternity. In some states, there is both statutory and common law support for the standing of a man alleging himself to be the father to assert his paternity of a child born to a married woman. Not that long ago, some states imposed an absolute bar on a man commencing a proceeding to establish his paternity if state law provides a statutory presumption of the paternity of another man. See Michael H. v. Gerald D., 491 U.S. 110, (1989). It is increasingly clear that those days are coming to an end.

The new UPA attempts to establish a middle ground on these exceedingly complex issues. Subsection (a) establishes a two-year limitation for rebutting the presumption of paternity established under § 204 if the mother and presumed father were cohabiting at the time of conception. The presumption of paternity may be attacked by the mother, the presumed father, or a third-party male during this limited period; thereafter the presumption is