ESTABLISHMENT OF PATERNITY

CS 315 Voluntary Declaration of Paternity by Parents

04/87 Revised 07/01/16 Training Completed 06/07/16

U.C.A. 26-2-5, 78B-15-107, 78B-15-301 through 313

 

 

Effective May 16, 1994, biological fathers may voluntarily acknowledge paternity of a child born in the state of Utah to an unmarried mother by signing the “Affidavit for Voluntary Declaration of Paternity by Parents” (VDP).  The VDP is a Department of Health, Office of Vital Records and Statistics (OVRS) form and may be signed by the birth parents at the time of the child’s birth, or at any time after the birth of the child. 

 

NOTE: Paternity declaration forms signed prior to May 16, 1994, such as the “Acknowledgment of Paternity by Parents” do not have the same legal effect as the “Voluntary Declaration of Paternity by Parents” form.  If the alleged father and mother signed an older form attempt to establish paternity administratively. 

 

U.C.A. 78B-15-302 Execution of declaration of paternity provides the requirements for a valid VDP as follows:

“(1) A declaration of paternity must:

(a) be in a record;

(b) be signed, or otherwise authenticated, under penalty of perjury, by the mother and by the declarant father;

(c) be signed by the birth mother and declarant father in the presence of two witnesses who are not related by blood or marriage; and

(d) state that the child whose paternity is being declared:

(i) does not have a presumed father, or has a presumed father whose full name is stated; and

(ii) does not have another declarant or adjudicated father;

(e) state whether there has been genetic testing and, if so, that the declarant man's claim of paternity is consistent with the results of the testing; and

(f) state that the signatories understand that the declaration is the equivalent of a legal finding of paternity of the child and that a challenge to the declaration is permitted only under the limited circumstances described in Section 78B-15-307.

(2) If either the birth mother or the declarant father is a minor, the voluntary declaration must also be signed by that minor's parent or legal guardian.

(3) A declaration of paternity is void if it:

(a) states that another man is a presumed father, unless a denial of paternity signed or otherwise authenticated by the presumed father is filed with the Office of Vital Records in accordance with Section 78B-15-303;

(b) states that another man is a declarant or adjudicated father; or

(c) falsely denies the existence of a presumed, declarant, or adjudicated father of the child.

(4) A presumed father may sign or otherwise authenticate an acknowledgment of paternity.

(5) The declaration of paternity shall be in a form prescribed by the Office of Vital Records and shall be accompanied with a written and verbal notice of the alternatives to, the legal consequences of, and the rights and responsibilities that arise from signing the declaration.

(6) The Social Security number of any person who is subject to declaration of paternity shall be placed in the records relating to the matter.

(7) The declaration of paternity shall become an amendment to the original birth certificate. The original certificate and the declaration shall be marked as to be distinguishable. The declaration may be included as part of subsequently issued certified copies of the birth certificate. Alternatively, electronically issued copies of a certificate may reflect the amended information and the date of the amendment only.

(8) A declaration of paternity may be completed and signed any time after the birth of the child. A declaration of paternity may not be signed or filed after consent to or relinquishment for adoption has been signed.

(9) A declaration of paternity shall be considered effective when filed and entered into a database established and maintained by the Office of Vital Records.”

 

U.C.A. 78B-15-305(1) explains the effect of a signed and filed VDP:

“(1) Except as otherwise provided in Sections 78B-15-306 and 78B-15-307, a valid declaration of paternity filed with the Office of Vital Records is equivalent to a legal finding of paternity of a child and confers upon the declarant father all of the rights and duties of a parent.”

 

Signing of the form by the mother and biological father is strictly voluntary.  The parents may not be influenced in any way by health care or state workers.  A pamphlet titled “Voluntary Declaration of Paternity” describes the parent’s rights, responsibilities, and alternatives to signing the VDP.  It must accompany the VDP form and be given to the parents by personnel at hospitals, birthing facilities, or designated state offices, including OVRS.  The pamphlet that is provided by the birthing facility or designated agency includes a telephone number to call for the oral notice.  Information about the form, pamphlet, and procedures can be found on the ORS website.

 

All completed VDP forms are filed with OVRS by the birthing facility, a designated agency, or the signatories. If a VDP is signed at a hospital or birthing facility, the biological father’s information will be entered on the child’s original birth certificate.  If it is signed later and filed with OVRS, the information will be entered as an amendment to the birth certificate.

 

The Office of Recovery Services/Child Support Services (ORS/CSS) is not considered a designated agency for the purpose of facilitating the establishment of paternity by providing VDP forms.  If the parties request a VDP form from CSS, direct them to the local OVRS office to obtain pamphlet and VDP form for filing after it has been completed.  Do not accept a completed VDP form or offer to file it for the parties.

 

 

Pending Administrative Action

 

Refer to CS 305P Paternity:  Adjudicated, Presumed and Declarant Fathers for complete procedures to administratively establish child support against a declarant father. 

 

If the parents inform you that they want to sign a VDP after the administrative paternity establishment process has already begun, inform the parents that CSS does not use the VDP form to establish paternity.  Repeat the recommendation for genetic testing at no cost, and inform the parents that if they choose to forego genetic testing they will waive the right to future tests arranged and paid for by CSS.  If the parents will not consent to genetic testing, ask the parents to sign an administrative “Stipulation and Order:  Paternity and Child Support,” and include the paragraph which declines and waives the right to testing. If the parents are willing to submit to the testing, proceed with the testing and if the father is not excluded, obtain an administrative order of paternity and child support following the normal procedures for an alleged father.   

 

 

Pending Judicial Action

 

If the parents offer to sign the VDP after the case has been referred to the Attorney General's Office (AGO) and a judicial action is pending (i.e. has been filed in court), refer the parents to the AGO.  The AGO will attempt to obtain genetic testing and a judicial paternity and child support order.  If no judicial action is yet pending, retrieve the case from the AGO and attempt to proceed administratively, including arranging genetic tests if those have not been conducted. 

 

If you learn that the parents have already signed a Utah VDP and a judicial action is pending and you need to refer the case to the AGO, obtain a copy of the filed VDP and send it to the AGO in paper form.  If the Utah VDP is only available as an electronic image, obtain a copy of the VDP as an attachment to an email by sending an email as instructed in policy.  Print a copy of the VDP and include it in the AGO referral packet.  If you have already referred the case to the AGO, forward a printed copy of the VDP through interoffice mail to the assigned attorney.  The AGO will either attempt to obtain a judicial child support stipulation, or submit the VDP to the court as evidence in order to establish child support without going to trial on the issue of paternity based on UCA 78B-15-305 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.”

 

Interstate Cases

 

All states are required by the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 1996 to have a law providing for voluntary declaration (Utah term) or “acknowledgment” (PRWORA term, and often other states’ term) of paternity in hospitals and for rescinding a declaration or “acknowledgment”.  They will be similar to Utah’s voluntary declaration procedures.  The child’s state of birth determines which state may have the voluntary declaration or acknowledgment of paternity.  Children born in Utah will have the Utah “Voluntary Declaration of Paternity by Parents” on file with OVRS if the form has been completed by the parents. 

 

If the child was born in another state, that state’s declaration or acknowledgment may be completed and filed with the vital statistics registrar in the state of the child’s birth.  Contact the vital statistics office or the IV-D agency in the child’s birth state for assistance in determining if a declaration or acknowledgment has been filed in another state.

 

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.”

 

Give full faith and credit to voluntary declarations or acknowledgments obtained by other states.  If a VDP was signed in another state and either or both parents request genetic testing, the parent(s) must arrange for genetic testing themselves.  Even if privately-obtained genetic tests exclude the declarant father, Utah cannot rescind another state’s voluntary declaration.  Parents who wish to rescind voluntary declarations obtained by other states must initiate their own legal action in the state where paternity was established.  Notify the parents to provide a copy of the other state’s rescission to CSS if it is successfully rescinded.  If you are not sure of the validity of an out of state voluntary declaration/acknowledgment or of a denial/waiver of paternity, or how to proceed on the case, consult with the attorney assigned to your case.

 

 

Rescission of the “Affidavit for Voluntary Declaration of Paternity by Parents”

 

UCA 78B-15-306 governs a simple rescission of a filed VDP by signing the rescission section on the back of the form as follows:

“A signatory may rescind a declaration of paternity or denial of paternity by filing a voluntary rescission document with the Office of Vital Records in a form prescribed by the office before the earlier of:
(1) 60 days after the effective date of the declaration or denial, as provided in Sections 78B-15-303 and 78B-15-304; or
(2) the date of notice of the first adjudicative proceeding to which the signatory is a party, before a tribunal to adjudicate an issue relating to the child, including a proceeding that establishes support.”

UCA 78B-15-307 governs the process for challenging a signed and filed VDP once the rescission section of the form is no longer applicable (after 60 days or after notice of an adjudicative proceeding):

“(1) After the period for rescission under Section 78B-15-306 has expired, a signatory of a declaration of paternity or denial of paternity, or a support-enforcement agency, may commence a proceeding to challenge the declaration or denial only on the basis of fraud, duress, or material mistake of fact.
(2) A party challenging a declaration of paternity or denial of paternity has the burden of proof.
(3) A challenge brought on the basis of fraud or duress may be commenced at any time.
(4) A challenge brought on the basis of a material mistake of fact may be commenced within four years after the declaration is filed with the Office of Vital Records. For the purposes of this Subsection (4), if the declaration of paternity was filed with the Office of Vital Records prior to May 1, 2005, a challenge may be brought within four years after May 1, 2005.
(5) For purposes of Subsection (4), genetic test results that exclude a declarant father or that rebuttably identify another man as the father in accordance with Section 78B-15-505 constitute a material mistake of fact.”

The mother or declarant father may file a court action to challenge a VDP that was not challenged within the 60-day timeframe, or may give consent for CSS to file the action if genetic testing results exclude the declarant father by signing the “Paternity:  Notice to Mother/Declarant Father to Request or Decline Genetic Testing” or the consent option in the “Paternity: Genetic Test Exclusion to Mother/Declarant Father.”  While the testing may be scheduled based on one party’s request, both parties must consent to having the VDP rescinded before the AGO will act on genetic test results that exclude the declarant father.  Document this information in the narratives and in the AGO case referral. 

 

If an action is filed in the courts to challenge/rescind a VDP, continue enforcing any existing orders per UCA 78B-15-308 which states:

“(3) Except for good cause shown, during the pendency of a proceeding to rescind or challenge a declaration of paternity or denial of paternity, the tribunal may not suspend the legal responsibilities of a signatory arising from the declaration, including the duty to pay child support.”

Do not proceed with paternity establishment for the next possible alleged father until the VDP has been rescinded as there is the possibility that the courts could uphold the VDP. 

 

If the VDP is rescinded by court order, end the current support obligation on ORSIS prospectively from the date of the rescission order.  Per UCA 78B-15-305:

“(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.  (Emphasis added.)