ESTABLISHMENT OF PATERNITY

CS 1305P CIC Paternity:  Adjudicated, Presumed, and Declarant Fathers

4/87 Revised 05/05/11

 

NOTE:  CIC-specific procedures contained in this section.

 

Definitions

1.                  Adjudicated (ordered) father - a man who, through a judicial or administrative legal proceeding resulting in an order, has been established as the father of a child.

 

2.                  Declarant father - a man who, along with the biological mother, has signed a valid “Voluntary Declaration of Paternity by Parents” (VDP) and thereby declared that he is the biological father of a child.

 

3.                  Presumptive (or Presumed) father - a man is presumed to be the father of a child if:

a.                   he and the mother of the child were married to each other and the child was born during the marriage;

b.                  he and the mother of the child were married to each other and the child was born within 300 days after the marriage was terminated by death, annulment, declaration of invalidity, or divorce, or after a decree of separation;

c.                   before the birth of the child, he and the mother of the child married each other in apparent compliance with law, even if the attempted marriage is or could be declared invalid, and the child is born during the invalid marriage or within 300 days after its termination by death, annulment, declaration of invalidity, or divorce or after a decree of separation; or,

d.                  after the birth of the child, he and the mother of the child married each other in apparent compliance with the law, whether or not the marriage is, or could be declared, invalid, he voluntarily asserted his paternity of the child, and there is no other presumptive father of the child, and:

i.                     the assertion is in a record filed with the Office of Vital Records;

ii.                   he agreed to be and is named as the child’s father on the child’s birth certificate; or

iii.                  he promised in a record to support the child as his own.

 

4.                  Alleged father - a man (not an adjudicated, declarant, or presumed father), who has been named as the biological father of a child.

 

Because of the legal rights and obligations associated with some categories of each legal parent-child relationship, ORS/CSS will pursue consorts for child support in multiple consort situations in the following order:

 

1.                  Adjudicated father;

2.                  Presumed father;

3.                  Declarant father;

4.                  Alleged father(s).

 

If a Juvenile Court order names a specific person to pay support and it is in conflict with the order presented above, refer the case to the AGO for judicial establishment.

 

Adjudicated Father, Judicial Order Establishes the Paternity of the Child

 

The following are some examples of adjudicated paternity:

 

1.                  A divorce decree:  UCA 78B-15-623(3) and (4) states when a divorce is considered to have adjudicated parentage as follows:

 

“(3) In a proceeding to dissolve a marriage, the tribunal is considered to have made an adjudication of the parentage of a child if the question of paternity is raised and the tribunal adjudicates according to Part 6, Adjudication of Parentage, and the final order:
     (a) expressly identifies a child as a "child of the marriage," "issue of the marriage," or similar words indicating that the husband is the father of the child; or
     (b) provides for support of the child by the husband unless paternity is specifically disclaimed in the order.
     (4) The tribunal is not considered to have made an adjudication of the parentage of a child if the child was born at the time of entry of the order and other children are named as children of the marriage, but that child is specifically not named.

 

NOTE:  If the Findings of Fact are incorporated by reference into the divorce decree, then they are considered part of the decree.  If they are not, they still will be deemed by the Attorney General’s Office (AGO) and by the courts as helpful information.  If you have questions about the Findings of Fact and whether they have been incorporated by the final order, review the order with the AGO.

 

2.                  Judicial paternity order

 

3.                  Juvenile Court order:  Juvenile Courts have jurisdiction to adjudicate paternity issues and the adjudication is not affected when Juvenile Court terminates its jurisdiction.  The order must contain specific language that the man is found to be the father of the child in order to consider that paternity has been adjudicated.  It is not enough for the man to be listed as the father among those present at the court proceedings. 

 

EXAMPLE 1:  The Juvenile Court order states that “John Smith is found to be the father of the child Bobby Smith born August 10, 2003.”  This language represents a specific adjudication of paternity. 

 

EXAMPLE 2:  The Juvenile Court order states that “The mother, Anna Smith; the father, John Smith; the guardian ad litem Joanna Montana; and the DCFS worker, Bob Utah were present at the hearing.”  This language is not a specific adjudication of paternity.

 

NOTE:   Review Juvenile Court orders with the AGO if paternity appears to have been addressed in a Findings of Fact or other Juvenile Court document, but not in the final order.  If the AGO advises that the paternity has been adjudicated by the other document, narrate the discussion and reasons paternity is considered established.

 

4.                  Utah administrative order:  If a Utah administrative order contains the following language (or similar):  “That (alleged father’s name) is the father of the following child(ren) born to (mother’s name)” and then lists the child(ren) in question, paternity has been administratively adjudicated for that child. 

 

NOTE:  In the past, CSS procedures directed agents to have willing parents sign a “Voluntary Declaration of Paternity by Parents” (VDP) after they’d been served with administrative paternity action.  The administrative order that followed the VDP may not actually contain the paternity establishment language depending on the procedures in place when it was issued. 

 

Any order that adjudicates paternity creates a binding parent-child relationship until/unless it is amended, set aside, or terminated by a subsequent order.  As long as paternity has been adjudicated in an order, do not proceed with any establishment actions against any other type of father.

 

If there is an existing judicial order which establishes the child to be “of the marriage” or otherwise establishes the paternity of the husband/ex-husband, and the husband/ex-husband states he is not the biological father, inform the husband/ex-husband that challenging an existing judicial order is not a service that is provided by ORS.  Even if the adjudicated father, the mother, and an “alleged” father all signed a VDP that was filed with the Department of Health, Office of Vital Records and Statistics (OVRS), the court order governs the paternity of the child until/unless modified.  Continue to enforce the support obligation until such time as you receive an exclusion order, or are ordered by the court to cease enforcing the existing order.  If you receive an exclusion order, end the current support debt on ORSIS.  Do not refund any payments that have been made by the individual and collect the arrears that are still owed, unless the court order states otherwise.

 

Adjudicated Father, Administrative Order Establishes the Paternity of the Child

 

Utah Administrative Order - If a Utah administrative paternity order established the presumed father as the adjudicated father, there has been no court order determining his parentage, and he is later excluded by genetic tests, follow the procedures outlined in Paternity Rescinded.

 

Other State Administrative Order - If an administrative order from another state established the presumed father as the adjudicated father, it must be given full faith and credit.  If the adjudicated father contests the validity of the order, he may attempt to pursue an action in the original tribunal issuing the paternity order. 

Presumed Father, Divorce Decree or Other Judicial Order Excludes Presumed Father

 

If the divorce decree or findings of fact, or other judicial order contains a paragraph such as one of the three examples listed below, you may generally conclude that the presumed father has been judicially excluded as the biological father of the child. 

 

EXAMPLES:

 

  1. “During the marriage, a child was born to Mrs. Doe.  Mr. Doe is not the father of the child because he was residing in another country at the time of conception;”

 

  1. “During the marriage, a child was born to Mrs. Doe.  Mr. Doe is not the father of that child;” or,

 

  1. “There have been no children born of this marriage.  Mrs. Doe is expecting, but both parties acknowledge that Mr. Doe is not the biological father of the unborn child.”

 

NOTE: The AGO has advised that it is not enough for an order to state that “no children are expected” or “there were no children born as issue of the marriage” to exclude a presumed father.  There must also be a finding that the mother is not currently expecting or that if she is expecting, the expected child is not an issue of the marriage.

 

If you are unsure whether the judicial order excludes the presumed father, consult with the AGO before you proceed exclusively against an alleged (or declarant) father.  If the attorney determines that the order does not exclude the presumed father, refer to “Divorce Decree or Other Judicial Order Silent” below for instructions.

 

Presumed Father, Divorce Decree or Other Judicial Order Silent

 

If a child was conceived or born during the mother’s marriage, there is a legal presumption that the husband is the biological father.  A legal presumption may be contested and is, therefore, not the same as a legal finding or adjudication of paternity.  Either the presumed father or the mother may contest the presumption in a judicial proceeding. 

 

When there is a divorce decree or other judicial order addressing the marriage and/or divorce of the parties, but it does not name the child in question, consult with the AGO.  The judicial order may need to be modified to clarify the paternity status of the child; however, the AGO will direct you as to when and if genetic testing is appropriate during the judicial process. 

 

Presumed Father, No Court Order

 

If the child was born during a valid marriage, serve the mother and presumed father with a “Notice of Agency Action: Child Support”that does not raise the presumed paternity issue or provide the genetic testing option.  Obtain an administrative child support order.  If the presumed father (not the mother) requests genetic testing in this situation, facilitate the testing.  If the Juvenile Court has ordered genetic tests, consult with the AGO on how to proceed.

 

Declarant Father

 

If paternity has previously been legally established by the mother and declarant father signing a valid VDP that was filed with the Department of Health, Office of Vital Records and Statistics (OVRS), the steps you will take will depend on genetic test results and whether there is a presumed father and if he has excluded himself by testing, by court order or by signing the VDP in the “Legal Father” section.

 

1.                  Genetic testing was previously completed that supports the valid VDP:

Establish an administrative order for the declarant father to pay support.

 

2.                  Genetic testing was NOT previously completed that supports the valid    VDP: 

A.                 Testing not ordered by Juvenile Court: Establish an administrative order against the declarant father. 

B.                 Testing ordered by Juvenile Court and VDP was filed less than four years ago:  Facilitate the testing.  If the declarant father is excluded, refer the case to the AGO to notify the Juvenile Court of the results and initiate an action to challenge the VDP.  If results are positive, establish an administrative order against the declarant father.

C.                 Testing ordered by Juvenile Court, but VDP was filed more than four years ago:  Consult with the AGO for instructions on how to proceed since ORS does not generally offer or facilitate genetic testing for parties if it has been more than four years since the VDP was filed with OVRS. 

If the juvenile court orders genetic testing on another possible consort when a declarant father exists, do not proceed to establish paternity against the next possible biological father until the VDP has been rescinded by the courts (since it is possible that the courts may still uphold the VDP).