ESTABLISHMENT OF PATERNITY

CS 300P Federal Regulations and State Laws

10/82 Revised 08/06/08 Training Completed 04/28/05

45 CFR 302.31, 45 CFR 302.33, 45 CFR 302.70, 45CFR 303.4, 45 CFR 303.5, 45 CFR 303.101, 42 USC 666(a)(5)(J), U.C.A 26-2-5, 62A-11-304.2, 78B-12-108, 78B-15-109, 301 through 313, 310, 503, 505, 111, 606, 613, and 616

 

1.                         Services on IV-A cases.  45 CFR 302.31 states:  
 
“The State plan shall provide that:
    (a) The IV-D agency will undertake:
    (1) In the case of a child born out of wedlock with respect to whom an assignment as defined in Sec. 301.1 of this chapter is effective, to establish the paternity of such child; and
    (2) In the case of any individual with respect to whom an assignment as defined in Sec. 301.1 of this chapter is effective, to secure support for a child or children from any person who is legally liable for such support, using State laws regarding intrastate and interstate establishment and enforcement of support obligations. Effective October 1, 1985, this includes securing support for a spouse or former spouse who is living with the child or children, but only if a support obligation has been established for that spouse and the child support obligation is being enforced under the title IV-D State plan.
    (3) When assigned medical support payments are received and retained 
by a non-IV-A Medicaid recipient, the IV-D agency shall notify the Medicaid agency whenever it discovers that directly received medical support payments are being, or have been, retained.
    (b) Upon receiving notice of a claim of good cause for failure to cooperate, the IV-D agency will suspend all activities to establish paternity or secure support until notified of a final determination by the appropriate agency.
    (c) The IV-D agency will not undertake to establish paternity or secure support in any case for which it has received notice that there has been a finding of good cause unless there has been a determination that support enforcement may proceed without the participation of the caretaker or other relative. If there has been such a determination, the IV-D agency will undertake to establish paternity or secure support but may not involve the caretaker or other relative in such undertaking.”
 
2.                         Services on Non-IV-A Cases.  45 CFR 302.22(a)(1) states:
 
“(1) The State plan must provide that the services established under the plan shall be made available to any individual who:           
    (i) Files an application for the services with the IV-D agency. In an interstate case, only the initiating State may require an application under this section; or
    (ii) Is a non-IV-A Medicaid recipient; or
    (iii) Has been receiving IV-D services and is no longer eligible for assistance under the title IV-A, IV-E foster care, and Medicaid program.”
 

3.                  Federal timeframes for establishing paternity and an order.  45 CFR 303.4(d) states:

 

“(d) Within 90 calendar days of locating the alleged father or 

noncustodial parent, regardless of whether paternity has been established, establish an order for support or complete service of process necessary to commence proceedings to establish a support order and, if necessary, paternity (or document unsuccessful attempts to serve process, in accordance with the State's guidelines defining diligent efforts under Sec. 303.3(c)).”

 

4.                  Federal timeframes for expedited process.  45 CFR 303.101(b)(2)(i) states: 

 
“(i) In IV-D cases needing support order establishment, regardless of whether paternity has been established, action to establish support orders must be completed from the date of service of process to the time of disposition within the following timeframes: (A) 75 percent in 6 months; and (B) 90 percent in 12 months.”

 

The expedited process is covered by UCA 78B-15-301 through 313, which establishes a voluntary declaration of paternity process, and UCA 62A-11-304.2, which allows the determination of paternity and setting of child support awards using the administrative process.

 

5.                  Requirement for Hospital-based Voluntary Declaration of Paternity.  45 CFR 302.70(a)(5)(iii)(A) through (C) requires states to have:

   

“(A) A hospital-based program in accordance with Sec. 303.5(g) for 
the voluntary acknowledgment of paternity during the period immediately before or after the birth of a child to an unmarried mother, and a requirement that all public and private birthing hospitals participate in the hospital-based program defined in Sec. 303.5(g)(2); and
(B) A process for voluntary acknowledgment of paternity in hospitals, State birth record agencies, and in other entities designated by the State and participating in the State's voluntary paternity establishment program; and
(C) A requirement that the procedures governing hospital-based programs and State birth record agencies must also apply to other entities designated by the State and participating in the State's voluntary paternity establishment program, including the use of the same notice provisions, the same materials, the same evaluation methods, and the same training for the personnel of these other entities providing voluntary paternity establishment services.”

 

Additionally, 45 CFR 303.5(a) states: 

 

“(a) For all cases referred to the IV-D agency or applying for services under Sec. 302.33 of this chapter in which paternity has not been established, the IV-D agency must, as appropriate:
    (1) Provide an alleged father the opportunity to voluntarily acknowledge paternity in accordance with Sec. 302.70(a)(5)(iii); and
    (2) Attempt to establish paternity by legal process established under State law.”
 

Effective May 16, 1994, UCA 26-2-5 and UCA 78B-15-301 through 313 provide for a hospital-based voluntary declaration of paternity process that establishes a legal father-child relationship and a basis for a child support order without any further requirement or proceeding regarding the establishment of paternity.

 

6.                  Contesting genetic testing.  45 CFR 302.70(a)(5)(v) through (viii) requires states to have:

 

“(v) Procedures which provide that any objection to genetic testing results must be made in writing within a specified number of days before any hearing at which such results may be introduced into evidence; and if no objection is made, a written report of the test results is admissible as evidence of paternity without the need for foundation testimony or other proof of authenticity or accuracy;
(vi) Procedures which create a rebuttable or, at the option of the 
State, conclusive presumption of paternity upon genetic testing results indicating a threshold probability of the alleged father being the father of the child;
(vii) Procedures under which a voluntary acknowledgment must be recognized as a basis for seeking a support order without requiring any further proceedings to establish paternity; and
(viii) Procedures requiring a default order to be entered in a paternity case upon a showing that process was served on the defendant in accordance with State law, that the defendant failed to respond to service in accordance with State procedures, and any additional showing required by State law.”

 

UCA 78B-15-613 states:

 

“(1) Except as otherwise provided in Subsection (3), a record of a genetic-testing expert is admissible as evidence of the truth of the facts asserted in the report unless a party objects to its admission within 14 days after its receipt by the objecting party and cites specific grounds for exclusion.  Unless a party files a timely objection, testimony shall be in affidavit form. The admissibility of the report is not affected by whether the testing was performed:
     (a) voluntarily or pursuant to an order of the tribunal; or
     (b) before or after the commencement of the proceeding.”

 

UCA 78B-15-505 states: 

 

“(1) Under this chapter, a man is presumed to be identified as the father of a child if the genetic testing complies with this part and the results disclose that:
     (a) the man has at least a 99% probability of paternity, using a prior probability of 0.50, as calculated by using the combined paternity index obtained in the testing; and
     (b) a combined paternity index of at least 100 to 1.
(2) A man identified under Subsection (1) as the father of the child may rebut the genetic testing results only by other genetic testing satisfying the requirements of this part which:
     (a) excludes the man as a genetic father of the child; or
     (b) identifies another man as the possible father of the child.
(3) If an issue is raised as to whether the appropriate ethnic or racial group database was used by the testing laboratory, the testing laboratory will be asked to rerun the test using the correct ethnic or racial group database. If the testing laboratory does not have an adequate database, another testing laboratory may be engaged to perform the calculations.
(4) If a presumption of paternity is not rebutted by a second test, the tribunal shall issue an order establishing paternity.”

UCA 78B-15-301 states: 

 

“The mother of a child and a man claiming to be the genetic father of the child may sign a declaration of paternity to establish the paternity of the child.”

 

UCA 78B-15-305(2) states:

 

“(2) When a declaration of paternity is filed, it shall be recognized as a basis for a child support order without any further requirement or proceeding regarding the establishment of paternity.”

 

UCA 78B-15-111 states:

 

“Utah Rule of Civil Procedure 55, Default Judgment, shall apply to paternity actions commenced under this chapter.”

 

UCA 62A-11-304.2(1) states:

 

“(1) Through an adjudicative proceeding the office may issue or modify an administrative order that:
     (a) determines paternity;”

 

7.                  Genetic test results.  UCA 78B-15-613 states: 

 

“(1) Except as otherwise provided in Subsection (3), a record of a genetic-testing expert is admissible as evidence of the truth of the facts asserted in the report unless a party objects to its admission within 14 days after its receipt by the objecting party and cites specific grounds for exclusion.  Unless a party files a timely objection, testimony shall be in affidavit form. The admissibility of the report is not affected by whether the testing was performed:
     (a) voluntarily or pursuant to an order of the tribunal; or
     (b) before or after the commencement of the proceeding.
(2) A party objecting to the results of genetic testing may call one or more genetic-testing experts to testify in person or by telephone, video conference, deposition, or another method approved by the tribunal. Unless otherwise ordered by the tribunal, the party offering the testimony bears the expense for the expert testifying.
(3) If a child has a presumed or declarant father, the results of genetic testing are inadmissible to adjudicate parentage unless performed:
     (a) pursuant to Section 78B-15-503;
     (b) within the time periods set forth in this chapter; and
     (c) pursuant to a tribunal order or administrative process; or
     (d) with the consent of both the mother and the presumed or declarant father.
(4) If a child has an adjudicated father, the results of genetic testing are inadmissible to challenge paternity except as set forth in Sections 78B-15-607 and 78B-15-608.
(5) Copies of bills for genetic testing and for prenatal and postnatal health care for the mother and child which are furnished to the adverse party not less than ten days before the date of a hearing are admissible to establish:
     (a) the amount of the charges billed; and
     (b) that the charges were reasonable, necessary, and customary.”

UCA 78B-15-503(1) states:

 

(1) Genetic testing must be of a type reasonably relied upon by experts in the field of genetic testing and performed in a testing laboratory accredited by:
     (a) the American Association of Blood Banks, or a successor to its functions;
     (b) the American Society for Histocompatibility and Immunogenetics, or a successor to its functions; or
     (c) an accrediting body designated by the federal Secretary of Health and Human Services.

8.                  Statute of limitations: 

 

UCA 78B-15-305(2)(b) states: 

 

(2) When a declaration of paternity is filed, it shall be recognized as a basis for a child support order without any further requirement or proceeding regarding the establishment of paternity . . .
      (b) When a father declares paternity, his liability for past amounts due is limited to the period of four years immediately preceding the date that the voluntary declaration of paternity was filed.

 

UCA 78B-15-606 states:

 

“A proceeding to adjudicate the parentage of a child having no declarant or adjudicated father may be commenced at any time. If initiated after the child becomes an adult, only the child may initiate the proceeding.”

UCA 78B-15-109 states:

 

“The obligor's liabilities for past support are limited to the period of four years preceding the commencement of an action.”

9.                  Support follows the child:  UCA 78-45-4.4 states: 

 

“(1) Obligations ordered for child support and medical expenses are for the use and benefit of the child and shall follow the child.
(2) Except in cases of joint physical custody and split custody as defined in Section 78-45-2, when physical custody changes from that assumed in the original order, the parent without physical custody of a child shall be required to pay the amount of support determined in accordance with Sections 78-45-7.7 and 78-45-7.15, without the need to modify the order for:
     (a) the parent who has physical custody of the child;
     (b) a relative to whom physical custody of the child has been voluntarily given; or
     (c) the state when the child is residing outside of the home in the protective custody, temporary custody, or custody or care of the state or a state-licensed facility for at least 30 days.
” 

 

10.              Full faith and credit.  45 CFR 302.70(a)(11) requires states to have:

 

“(11) Procedures under which the State must give full faith and credit to a determination of paternity made by any other State, whether established through voluntary acknowledgment or through administrative or judicial processes.”

 

UCA 78B-15-310 states:

 

“A tribunal of this state shall give full faith and credit to a declaration of paternity or denial of paternity effective in another state if the declaration or denial has been signed and is otherwise in compliance with the law of the other state.”

11.              Temporary Support Orders:  Welfare Reform legislation (PRWORA), found at 42 USC 666(a)(5)(J), requires states to have:

“(J) Temporary support order based on probable paternity in contested cases. -

Procedures which require that a temporary order be issued, upon motion by a party, requiring the provision of child support pending an administrative or judicial determination of parentage, if there is clear and convincing evidence of paternity (on the basis of genetic tests or other evidence).”

UCA 78B-15-616(1) states:

 

“(1) In a proceeding under this part, the tribunal shall issue a temporary order for support of a child if the order is appropriate and the individual ordered to pay support is: 

     (a) a presumed father of the child;
     (b) petitioning to have his paternity adjudicated;
     (c) identified as the father through genetic testing under Section 78B-15-505;
     (d) an alleged father who has failed to submit to genetic testing;
     (e) shown by clear and convincing evidence to be the father of the child; or
     (f) the mother of the child.”