ESTABLISHMENT OF PATERNITY         

CS 305P Paternity:  Adjudicated, Presumed and Declarant Fathers

04/87 Revised 04/10/15 Training Completed 05/19/11

U.C.A. 26-2-10; 30-1-17.2; 78B-15-102; 78B-15-204; 78B-15-301 to 311; 78B-15-505; 78B-15-601 to 623

 

Introduction

 

The Uniform Parentage Act, enacted by Utah on May 1, 2005 and found in UCA 78B-15, divides possible paternity consorts into four distinct categories based on if there is a legal parent-child relationship and the method of establishing that relationship.  The four categories are adjudicated father, presumed father, declarant father, and alleged father. 

 

For each child, you must determine if paternity is or ever was an issue because the child was born out of wedlock, then you must evaluate each potential consort/father to determine which category applies.  The applicable category determines if further actions are necessary to legally establish paternity and the actions available to establish a support order.  The applicable category also determines what actions are available to the parents if they wish to challenge paternity establishment.

 

Each category is discussed individually in the sub-sections that follow.  If there were multiple consorts that fall into a variety of categories, refer to CS 308P Multiple Consorts for additional guidance and examples to properly work through the combined categories. 

 

Adjudicated Father

 

UCA 78B-15-102 defines an adjudicated father as follows:

 

“(1) “Adjudicated father” means a man who has been adjudicated by a tribunal to be the father of a child.”

 

UCA 78B-15-102 defines a tribunal as follows:

 

“(26) "Tribunal" means a court of law, administrative agency, or quasi-judicial entity authorized to establish, enforce, or modify support orders or to determine parentage.”

 

The following are some examples of adjudicated paternity:

 

1.                   A divorce decree:  UCA 78B-15-623 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.  

 

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 an “Affidavit for 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 until the paternity issues in the existing order have been resolved.

 

If an adjudicated father or the mother wishes to contest the legally established paternity, the options available are determined by the type of order that adjudicated paternity.  In addition, consider the following depending on the type of order involved:

 

1.                   Utah Judicial Order:  Inform the adjudicated father and/or the mother that paternity has been adjudicated, and that challenging a judicial paternity order is not a service 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 previously existing 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 until you 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. 

 

2.                   Utah Administrative Order - If a Utah administrative paternity order established paternity, there has been no court order determining his parentage or registering the administrative order for enforcement, and the adjudicated father is later excluded by CSS-facilitated or privately-obtained genetic tests, follow the procedures for Paternity Disestablishment, Amending Administrative Orders Based on Genetic Test Results.

 

NOTE:  Although a presumed father may present genetic test results that exclude him as the biological father of a child, terminating the support obligation for a presumed father is not the same legal situation as “disestablishing paternity.”  The situations are presented together in the Paternity Disestablishment sections of Volume 2 only because the required paperwork and procedures are similar.    

 

3.                   Other State Order - An order from another state must be given full faith and credit.  If the adjudicated father claims he is not the biological father, he may attempt to pursue an action in the original tribunal issuing the paternity order.  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. 

         

Identifying a Presumed Father

 

UCA 78B-15-102 defines a presumed father as follows:

 

“(20) "Presumed father" means a man who, by operation of law under Section 78B-15-204, is recognized as the father of a child until that status is rebutted or confirmed as set forth in this chapter.

 

UCA 78B-15-204 explains several sets of circumstances that cause a man to be legally presumed to be the father of a child. 

 

“(1) A man is presumed to be the father of a child if:
(a) he and the mother of the child are married to each other and the child is born during the marriage;”

 

EXAMPLE 1:  A man and woman were married on April 30, 2003 and they have not divorced.  The child was born March 30, 2004.  Because the child was born during the marriage, the man is legally presumed to be the father of the child. 

 

EXAMPLE 2:  A man and woman were married on August 1, 2001 and divorced on September 15, 2004.  The child was born on October 8, 2002.  Because the child was born between the marriage and divorce dates, this man is a presumed father.  More information would be needed to determine if the presumption has been successfully challenged (rebutted) by any method.


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

 

EXAMPLE:  A man and woman were married on March 1, 2000 and divorced on December 1, 2004.  The child was born on January 18, 2005.  Even though the child was not born between the marriage and divorce dates, the child was born within 300 days of the divorce decree; therefore, this man is presumed to be the father of the child.  More information would be needed to determine if the presumption has been successfully rebutted by any method.

 

(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 …”

 

EXAMPLE 1:  A man and woman get married on January 31, 2005.  The child is born February 1, 2005.  The parties have the marriage annulled on February 28, 2005.  Because the child was born during the marriage (even though the marriage was later annulled), this man is presumed to be the father.  More information would be needed to determine if the presumption has been successfully rebutted by any method.

 

EXAMPLE 2:  A man and woman get married on January 31, 2005 and have the marriage annulled on February 28, 2005.  A child is born on March 15, 2005.  Because the child was born within 300 days of the marriage being terminated by annulment, the man is the presumed father of this child.


“(d) after the birth of the child, he and the mother of the child married each other in apparent compliance with 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.

At this time, OVRS indicates that any “assertions in a record filed with the Office of Vital Records” are accomplished using the “Affidavit for Voluntary Declaration of Paternity by Parents” (VDP) and may involve a process known as legitimation.  Because the use of the VDP actually creates a declarant father relationship instead of a presumed father relationship, refer to the declarant father section below.

 

If either party provides any other type of “record” or “promise” to support the child, review the documentation with the AGO to determine if it is sufficient to meet the definition of presumed father.

 

Valid Methods to Challenge the Presumption of Paternity

 

If a man meets the legal definition of a presumed father as given above, there is a legal presumption that he 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 either an administrative or judicial proceeding.  There are several ways that this presumption of paternity can be rebutted (challenged), thus excluding the presumed father from further actions to establish paternity and/or child support.  If you determine that a presumed father has been appropriately excluded by one of the methods listed below, narrate your determination, and proceed against other named consorts. 

 

Many of the exclusion methods available to presumed fathers are found in UCA 78B-15-607(3):

 

“(3) The presumption may be rebutted by:
(a) genetic test results that exclude the presumed father;”

 

EXAMPLE:  The presumed father participates in genetic tests through an accredited laboratory which exclude him as the biological father of the child.


(b) genetic test results that rebuttably identify another man as the father in accordance with Section 78B-15-505;”

NOTE:  In the past, CSS has allowed testing of presumed fathers and alleged fathers in no particular order, and an administrative order could be issued against an alleged father based on positive genetic test results, even if a presumed father existed who had not been excluded.  Current policy recognizes that there are additional rights given to presumed fathers pursuant to Utah law, so the rights of the presumed father and his legal relationship to the child must be resolved by adjudication prior to pursuing or testing any other consorts. 

 

(c) evidence that the presumed father and the mother of the child neither cohabited nor engaged in sexual intercourse with each other during the probable time of conception; or”

EXAMPLE:  The presumed father claims that he was on active military duty in another country at the probable time of conception and can provide documentation.  Have the presumed father, mother, and child (and any alleged fathers named) submit to genetic tests.  If you receive a genetic test exclusion for the presumed father, the genetic test results act as further evidence to support that the parties were apart at the time of conception, and the presumed father has been acceptably excluded.  If testing the presumed father is not possible, review the strength of the evidence provided with the AGO before deciding if it is sufficient to exclude the presumed father.  If in doubt, proceed judicially and allow the courts to determine if the evidence is sufficient or if testing is required.  

 

(d) an adjudication under this part.”

If the divorce decree 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:

“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;” or

 

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

 

“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.

 

In addition to the above examples, UCA 30-1-17.2(3) states:

 

“(3) If the child was born at the time of entry of a divorce decree, other children are named as children of the marriage, but that child is specifically not named, the husband is not presumed to be the father of the child not named in the order.”

In addition to the exclusion methods mentioned above, there is one other method for a presumed father to rebut the presumption of paternity:  the “Affidavit for Voluntary Declaration of Paternity by Parents” (VDP).  UCA 78B-15-303 states: 

 

A presumed or declarant father may sign a denial of his paternity. The denial is valid only if:
     (1) a declaration of paternity signed, or otherwise authenticated, by another man is filed pursuant to Section 78B-15-305;
     (2) the denial is in a form prescribed by and filed with the Office of Vital Records, and is signed, or otherwise authenticated, under penalty of perjury; and
     (3) the presumed or declarant father has not previously:
     (a) declared his paternity, unless the previous declaration has been rescinded pursuant to Section 78B-15-306 or successfully challenged pursuant to Section 78B-15-307; or
     (b) been adjudicated to be the father of the child
.

UCA 78B-15-305 states:

 

“(3) Except as otherwise provided in Sections 78B-15-306 and 78B-15-307, a valid denial of paternity by a presumed or declarant father filed with the Office of Vital Records in conjunction with a valid declaration of paternity is equivalent to a legal finding of the nonpaternity of the presumed or declarant father and discharges the presumed or declarant father from all rights and duties of a parent. If a valid denial of paternity is filed with the Office of Vital Records, the declarant or presumed father may not recover child support he paid prior to the time of filing.”

The VDP contains a section on the back of the form where a husband can sign indicating that he agrees that he is not the biological father of the child.  This section of the VDP serves as the “denial of paternity” mentioned in Utah statute for the presumed father.  If the front of the VDP is also signed by the mother and a declarant father and then filed with the Department of Health, Office of Vital Records and Statistics (OVRS), the husband/presumed father is legally excluded as the father of the child.   

 

If a presumed father excluded himself by signing the VDP, the exclusion is no longer valid if the VDP is rescinded (the rescission section is signed within 60 days of filing at OVRS) or if the VDP is void.  Proceed against the presumed father as if there had never been a VDP.  If the VDP was successfully challenged in court, consult with the AGO on the current paternity status of each possible consort.

 

If you are unsure whether the judicial order, or any other method, excludes the presumed father, consult with the AGO before you proceed exclusively against an alleged (or declarant) father. 

 

If you are unsure whether the judicial order, or any other method, excludes the presumed father, consult with the AGO, before pursuing other potential consorts. 

 

If there is a presumed father and either the mother or the presumed father contests terminating the parent-child relationship or states in a hearing request that s/he believes that excluding the presumed father would not be in the best interests of the child(ren), discuss the party’s concerns with the AGO, who will review the case based on UCA 78B-15-607 and 608.  These sections indicate that presumed and declarant fathers may be adjudicated to be the father of the child despite evidence that there is no biological relationship if it is in the best interest of the child.  On a case-by-case basis, the AGO may determine that a judicial action is necessary to adjudicate the parent-child relationship concerning the presumed or declarant father and to establish support after considering the following: 

 

78B-15-608.   Authority to deny motion for genetic testing or disregard test results.
     (1) In a proceeding to adjudicate the parentage of a child having a presumed father or to challenge the paternity of a child having a declarant father, the tribunal may deny a motion seeking an order for genetic testing of the mother, the child, and the presumed or declarant father, or if testing has been completed, the tribunal may disregard genetic test results that exclude the presumed or declarant father if the tribunal determines that:
     (a) the conduct of the mother or the presumed or declarant father estops that party from denying parentage; and
     (b) it would be inequitable to disrupt the father-child relationship between the child and the presumed or declarant father.
     (2) In determining whether to deny a motion seeking an order for genetic testing or to disregard genetic test results under this section, the tribunal shall consider the best interest of the child, including the following factors:
     (a) the length of time between the proceeding to adjudicate parentage and the time that the presumed or declarant father was placed on notice that he might not be the genetic father;
     (b) the length of time during which the presumed or declarant father has assumed the role of father of the child;
     (c) the facts surrounding the presumed or declarant father's discovery of his possible nonpaternity;
     (d) the nature of the relationship between the child and the presumed or declarant father;
     (e) the age of the child;
     (f) the harm that may result to the child if presumed or declared paternity is successfully disestablished;
     (g) the nature of the relationship between the child and any alleged father;
     (h) the extent to which the passage of time reduces the chances of establishing the paternity of another man and a child-support obligation in favor of the child; and
     (i) other factors that may affect the equities arising from the disruption of the father-child relationship between the child and the presumed or declarant father or the chance of other harm to the child.
     (3) If the tribunal denies a motion seeking an order for genetic testing or disregards genetic test results that exclude the presumed or declarant father, it shall issue an order adjudicating the presumed or declarant father to be the father of the child.”

Procedures:  Obtaining a Support Order Against a Presumed Father

 

If a presumed father exists, pursue a support order using the following procedures. If there are multiple consorts, the presumed father issues must be resolved before pursuing other consorts.

 

1.                   No order exists.  Child is born during a valid marriage between the presumed father and mother.  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 presumed father is excluded by the genetic testing:

a.                   Provide both parties with a copy of the results; and, 

b.                  After the appropriate response period, issue an “Order:  Genetic Test Exclusion: (form OGTE) to adjudicate that the presumed father is not the father.  For additional information on this process, refer to CS 317 Genetic Testing;

c.                   Begin establishment procedures against the alleged father.    For additional information, refer to CS 308.

 

If the mother responds to the NAA and contests the paternity of the presumed father, dismiss the NAA and refer the case to the AGO.  Do not facilitate genetic tests on a presumed father based on the mother’s request unless directed by the AGO. 

 

2.                   No order exists.  Child is not born during a valid marriage (meaning the presumption of paternity was created outside of the dates of a valid marriage/divorce).

a.                   Serve the mother and presumed father with a “Notice of Agency Action: Paternity and Child Support”

i.                     Select the option which recommends that they submit to genetic testing because the presumption of paternity is in question.

ii.                   Select the notices in the document generation packet for service with the NACP on the mother and presumed father respectively.  These notices also recommend that testing be conducted and ask the parents to consent to testing. 

iii.                  Because of the presumption of paternity, include arrears in the document. 

b.                  If the presumed father submits to genetic testing and is not excluded, notify both parties of the test results and proceed to take an “Order:  Paternity and Child Support” after the response timeframe.

c.                   If the presumed father participates and is excluded by genetic testing,

i.                     notify of the parties of the test results and issue the “Order: Genetic Test Exclusion” and

ii.                   ask the mother to name the biological father. If she refuses or insists that the presumed father is the father, initiate non-cooperation procedures as appropriate. 

d.                  If he does not submit to testing, but chooses to waive this right and stipulate, ask the mother and the presumed father to sign an administrative “Stipulation and Order: Paternity and Child Support”. 

e.                  If the presumed father does not submit to testing but will not voluntarily sign a stipulation, proceed to take an “Order:  Paternity and Child Support”.

 

3.                   All other possible consorts have been excluded (or the mother can not name other consorts), and mother claims that a previously-excluded presumed father is the only remaining possibility:  The possible actions available depend on how the presumed father was previously excluded.

a.                   Genetic test results:  Genetic test results that exclude a presumed father can only be contested with additional genetic testing. 

b.                  VDP:  If a presumed father previously excluded himself by signing the denial of paternity on the VDP, the exclusion is no longer valid if the VDP is rescinded by signature (within 60 days) or if the VDP is void.  Proceed against the presumed father and any other possible consorts as if there had never been a VDP.  If the VDP was successfully challenged in court, consult with the AGO on the paternity status of each potential consort.

c.                   Judicial order exists that specifically states that the presumed father is excluded:  Consult with the AGO to determine whether the judicial order precludes pursuing the paternity of the husband (or ex-husband).  If it does not, refer the case to the AGO to petition the court for an order requiring him to submit to genetic testing, and if he is not excluded, to modify the existing judicial order to name the child, establish paternity, and establish an appropriate child support award.

d.                  Judicial order exists that is silent concerning the child’s paternity (doesn’t name the child in question and doesn’t specifically exclude the presumed father as the father of the child):  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. 

 

If the presumed father files a legal action in the district court, or if a judicial legal action has been filed and is pending, do not proceed administratively to establish an order.  Refer the case to the AGO to join in the action.  If appropriate, the attorney may petition the court for a temporary judicial support order against the presumed father.  Genetic testing will be facilitated by CSS as directed by the AGO and courts.

 

Declarant Father 

 

Declarant father:  Defined in UCA 78B-15-102(8) as follows: 

 

“(8) "Declarant father" means a male who, along with the biological mother claims to be the genetic father of a child, and signs a voluntary declaration of paternity to establish the man's paternity.

 

If paternity has previously been legally established by the mother and declarant father signing a VDP that was filed with the Department of Health, Office of Vital Records and Statistics (OVRS), the steps you’ll take will depend on whether genetic tests have been completed. 

 

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

a.                   Ask the mother and the declarant father to sign an administrative stipulation for child support. 

b.                  If the declarant father will not sign an administrative stipulation, proceed to serve both parents with a “Notice of Agency Action:  Child Support” and obtain an “Order of Child Support.”

 

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

a.                   Serve the mother and declarant father with a “Notice of Agency Action: Child Support.” 

i.                     Include the paragraph which recommends that genetic testing be conducted to determine if the VDP is consistent with testing results.  It also states that if s/he consents to genetic testing and the testing results show he is not the biological father, s/he concurrently consents that CSS may initiate an action in court to rescind the VDP.

ii.                   Select the notices in the document generation packet for service with the NACA on the mother and declarant father respectively.  These notices allow each parent to request genetic tests or to consent to genetic tests if requested by the other parent.  Each party also has the option to decline genetic tests.  Each party may also consent to CSS filing a rescission action if genetic tests exclude the declarant father (both parties must consent before CSS will file a rescission action). Each parent is also asked to sign, date, and return the notice to you.

b.                  If either the declarant father or the mother requests genetic testing, attempt to obtain a signed genetic request/consent from both parties. You may proceed to schedule the genetic tests based on one party’s request; however, mail additional copies of the request/consent with the appointment letters or meet with all parties prior to the genetic tests to obtain their signatures on this form.  While the testing may be scheduled based on one party’s request, both parties must consent to having the VDP rescinded before the AGO can act on genetic test results that exclude the declarant father.

c.                   If the declarant father participates in genetic testing and is included, take the following steps.

i.                     Generate the “Genetic Test Results to Mother/Declarant Father” letters.  Include a copy of the genetic test results.

ii.                   Set a self-alert for 30 days after the letter.

iii.                  Monitor for responses.

iv.                 Issue an administrative order of child support at the end of the response timeframes.

d.                  If the declarant father participates in testing and is excluded, Paternity Disestablishment, Rescission of the “Affidavit for Voluntary Declaration of Paternity by Parents” for the procedures to notify the parents of the results and to determine if CSS will file a judicial rescission action.

e.                  If either party requests genetic tests by signing the request option in the forms (not the consent option), but the other party does not participate in testing, refer the case to the AGO to establish the support order judicially. 

f.                    If only one party requests genetic tests by signing the request option in the forms (not the consent option) but then does not participate in testing, genetic tests have been “declined” and you may proceed as if neither party had requested genetic tests.

g.                   If neither party requests genetic tests by signing the request option in the forms, take an administrative order of child support against the declarant father.

 

3.                   Genetic testing was NOT previously conducted that supports the valid VDP, but the VDP was filed more than four years ago:  ORS/CSS will not offer or conduct genetic testing for parties if it has been more than four years since the VDP was filed with OVRS. 

a.                   Serve the mother and declarant father with a “Notice of Agency Action: Child Support”.  Do not include the Voluntary Declaration of Paternity, Genetic Testing Not Completed option.  Do not include the letters recommending testing or requesting consent from the parties. 

b.                  If either party requests testing in response to the Notice inform them that ORS/CSS does not facilitate testing beyond the four-year timeframe for challenging the VDP based on a material mistake of fact. 

c.                   After the response timeframe has passed, issue the appropriate order, but do not include a Voluntary Declaration of Paternity option within the order.  If either party commences a judicial action to challenge the paternity prior to the administrative order, refer the case to the AGO.

 

NOTE:  Effective May 1, 2005, UCA 78B-15-307 places a time limit of four years from the effective date (filing date) of the VDP for a VDP to be challenged in court based on a material mistake of fact (i.e., genetic test results).  (No VDP signed on or before May 1, 2005 will reach the deadline before May 1, 2009. VDPs signed after May 1, 2005 have just four years from the date accepted by OVRS.)  ORS/CSS will not offer or facilitate genetic testing for parties if it has been more than four years since the VDP was filed with OVRS. 

 

Generally, CSS assists with rescissions based on a material mistake of fact; however, you may review the possibility of rescission based on fraud or duress with the AGO on a case-by-case basis.

 

If the child was born in Utah, the Presiding Officer must send the “Notice of Adjudication of Paternity” (form NAOP), a copy of the Birth Look-up screen and a copy of the order establishing or disestablishing paternity to the docket unit for forwarding to OVRS once the order is received and ORSIS has been updated. 

 

If the declarant father requests a hearing, follow administrative hearing procedures as long as paternity is not the issue.  If the declarant father or mother questions paternity at any time during the administrative hearing  (and the VDP has not passed the four-year limit for genetic testing facilitated by ORS/CSS), agree to arrange the genetic tests at no cost if either of the parties sign the “Notice to Mother/Declarant Father to Request or Decline Genetic Tests”.  Request the Office of Administrative Hearings (OAH) to “continue” the case while you arrange genetic tests if the hearing request has been referred to them before the question of paternity is raised. 

 

1.                   Proceed with the administrative hearing process if the declarant father is the biological father based on genetic tests. 

 

2.                   If the requesting party(ies) fail to participate in genetic tests, proceed with the OAH hearing based on the statute on UCA 78B-15-305(2) which 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.”
 

3.                   If either party requests genetic tests by signing the request option in the forms (not the consent option), but the other party does not participate in testing, dismiss the administrative action and notify OAH that the action has been dismissed. 

 

4.                   If the parties are tested and the declarant father is excluded, dismiss the administrative action and notify OAH that the action has been dismissed.  Follow the procedures found in policy to determine if CSS will file a judicial rescission action (when both parties have consented to rescission) or file a judicial action to pursue child support based on UCA 78B-15-305 (2). 

 

Declarant Fathers and Legitimation

 

OVRS has authority per UCA 26-2-10 for a process called legitimation:

 

26-2-10.   Supplementary certificate of birth.
     (1) Any person born in this state who is legitimized by the subsequent marriage of his natural parents, or whose parentage has been determined by any U.S. state court or Canadian provincial court having jurisdiction, or who has been legally adopted under the law of this or any other state or any province of Canada, may request the state registrar to register a supplementary certificate of birth on the basis of that status.
     (2) The application for registration of a supplementary certificate may be made by the person requesting registration, if he is of legal age, by a legal representative, or by any agency authorized to receive children for placement or adoption under the laws of this or any other state.
     (3) (a) The state registrar shall require that an applicant submit identification and proof according to department rules.
     (b) In the case of an adopted person, that proof may be established by order of the court in which the adoption proceedings were held.
     (4) (a) After the supplementary certificate is registered, any information disclosed from the record shall be from the supplementary certificate.
     (b) Access to the original certificate and to the evidence submitted in support of the supplementary certificate are not open to inspection except upon the order of a Utah district court or as provided under Section 78B-6-144.”

At this time, OVRS procedures for the legitimation process require the parents to provide their marriage certificate, pay a fee and sign the VDP.  This is different than when parents normally sign a VDP in two ways:  First, the parents must be married after the birth of the child; and second, after the legitimation process, a new birth record is issued where the father’s name is listed as if the parents had been married at the time of birth.  The previous birth record, the marriage certificate, and the VDP are then sealed, similar to an adoption.  If the parents sign the VDP before they are married, they may complete the legitimation procedure after their marriage.  OVRS can confirm that legitimation has occurred (continue to work through ORSBIRTHCERT, ORSBIRTHCERT and the CSS employees who contact OVRS) but can provide no other information from the sealed record. 

Because the use of the VDP in legitimation creates a declarant father relationship, handle the father-child relationship as a declarant father relationship if you confirm that legitimation has occurred, even though you will not be able to obtain a copy of the VDP.  The only difference in procedures between a legitimized declarant father and a normal declarant father is that if the legitimized declarant father is excluded by genetic tests, CSS and the AGO will not assist with the rescission process (even if both parties consent) because the VDP is part of a sealed record. 

 

EXAMPLE:  A child is born on January 18, 2005.  The mother and a man marry on February 14, 2005.  When you receive the birth certificate information for the child, the man’s name appears on the form.  Since the child was born out of wedlock, you request a copy of the VDP only to be told that a VDP does not exist.  At this point, you ask if legitimation occurred.  If the answer is yes, proceed with the order establishment procedures outlined for declarant fathers; however, if genetic testing is completed, CSS cannot rescind the VDP due to the fact that the records at OVRS are sealed.

 

Alleged Father

 

UCA 78B-15-102(2) defines an alleged father as follows:

 

(2) "Alleged father" means a man who alleges himself to be, or is alleged to be, the genetic father or a possible genetic father of a child, but whose paternity has not been determined.

 

An alleged father is identified for CSS when the mother, the alleged father, or a specified relative completes an Affidavit of Paternity. 

                                       

Refer to Administrative Notice of Agency Action - Paternity and Child Support for the forms and procedures to use when establishing a support order against an alleged father.

 

Mother Cooperation

 

If the mother does not cooperate with genetic testing in any of the above fact situations and scenarios, initiate non-cooperation procedures as appropriate. 

 

Exception:  If the parents previously signed a VDP which has been filed with OVRS or if there is a presumption of paternity, do not pursue non-cooperation of the mother if she fails to appear for the genetic testing appointment or refuses to be tested.  Refer the case to the AGO and establish child support judicially.