ESTABLISHMENT OF PATERNITY        

CS 329P-1 Paternity Disestablishment, Rescission of the “Affidavit for Voluntary Declaration of Paternity by Parents”

04/87 Revised 08/13/08 Training Completed 07/17/06

U.C. A. 78B-12-112(3)(c), 78B-15-301 to 313, 78B-15-608, 78B-15-609

 

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

 

According to UCA 78B-15-306 and 307 when a declarant father contests paternity after signing an Affidavit for Voluntary Declaration of Paternity by Parents (VDP), the appropriate procedures for rescinding the VDP depend on the length of time since the VDP was signed and if a support order has been issued. 

 

78B-15-306. Proceeding for rescission.
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.” (Emphasis added.)
                      

“78B-15-307. Challenge after expiration of period for rescission.
     (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.”
(Emphasis added.)

 

“Affidavit for Voluntary Declaration of Paternity by Parents” Rescinded within 60-Day Period, No Support Order Issued—Procedures

 

A parent who wishes to rescind a VDP within 60 days of signing the VDP and before notice of a proceeding to establish a support order may do so by filing a voluntary rescission document directly with the Department of Health, Office of  Vital Records and Statistics (OVRS).  The Office of Recovery Services/Child Support Services (ORS/CSS) does not accept this form directly from parents or file this form with OVRS for parents.

 

If a VDP rescission has been filed with OVRS, you may still pursue paternity establishment against the former declarant father using the procedures for alleged fathers.    

 

“Affidavit for Voluntary Declaration of Paternity by Parents” Contested after 60-Day Period, No Support Order Issued

 

After the 60-day time period for rescission has passed, the VDP must be rescinded by a judicial order.  The parties may file their own judicial action to rescind the VDP, or they may request genetic tests from CSS during the order establishment process and if both parties consent to the rescission, CSS will file the judicial action for rescission if the declarant father is excluded.  Effective May 1, 2005, UCA 78B-15-307 places a time limit of four years from the effective 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.)  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.       

 

1.                  The parties file a judicial action to rescind the VDP:  If the parties have filed their own judicial action to challenge the VDP, take the following steps.

a.                   Refer the CSS case to the AGO to represent CSS in the proceeding.

b.                  Provide genetic tests at no charge, if requested by the court, or if requested by the parties and approved by the court.

c.                   If the declarant father is excluded by genetic tests, his attorney should prepare an order to rescind the VDP.

d.                  Do not proceed against other consorts named by the mother until the VDP has been rescinded by court order because the courts may uphold the VDP (see UCA 78B-15-608). 

e.                   When the AG referral has been closed on the 345 Attorney General Detail screen, and the rescission order has been imaged and ORSIS has been updated, the Presiding Officer (PO) must send the “Notice of Adjudication of Paternity,” a copy of the Birth Look-up screen and a copy of the order rescinding the VDP to the docket unit for forwarding to OVRS.

 

2.                  The declarant father or mother requests genetic tests from CSS:  If a declarant father or mother requests genetic tests from CSS before a support order is issued, and not as part of a court proceeding, take the following steps:

a.                   Offer genetic tests at no charge as part of the order establishment process.  The declarant father or mother must sign the “Paternity:  Notice to Mother/Declarant Father to Request or Decline Genetic Testing.” This form contains options for the requesting party (or parties) to request, consent to or decline genetic testing and to consent to CSS filing a judicial action to rescind the VDP if the declarant father is excluded by genetic tests.

b.                  If either the declarant father or the mother requests genetic testing, attempt to obtain a signed notice from both parties, consenting to the action to rescind the VDP if the genetic test results exclude the declarant father.  You may proceed to schedule the genetic tests based on one party’s request; however, mail additional copies of the notice 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 will act on genetic test results that exclude the declarant father.

c.                   If genetic tests facilitated by CSS (or privately-obtained genetic tests that meet the chain of custody requirements are provided to CSS that) exclude the declarant father, take the following steps.

i.                     Review the file to see if both parties consented to the judicial rescission action in the case of genetic test exclusion by signing the letters.

ii.                   Send a copy of the genetic test results to each party with the “Genetic Test Exclusion to Mother, Declarant Father” letter.  If either party participated in genetic tests without signing the letter consenting to the VDP rescission, include the consent option in the genetic test results letter.  The parties are allowed 15 days to consent to or oppose the rescission action by returning the signed statement at the bottom of the genetic test exclusion letter. 

iii.                  If both parties consent in writing to rescission of the VDP, refer the case to the AGO to initiate an action to rescind the VDP.  In your referral, notify the AGO of the parties’ signatures indicating support for rescinding the VDP. 

A.                 Do not proceed against the next consort named by the mother until the VDP has been rescinded by judicial order because the courts may uphold the VDP despite the genetic test exclusion (see UCA 78B-15-608).

B.                 If the rescission is successful, the AGO will provide the parties with a copy of the final order.

C.                 When the AG referral has been closed on the 345 Attorney General Detail screen, and the rescission order has been imaged and ORSIS has been updated, the PO must send the “Notice of Adjudication of Paternity” (form NAOP), a copy of the Birth Look-up screen and a copy of the order rescinding the VDP to the docket unit for forwarding to OVRS.

D.                 If a presumed father excluded himself by signing the VDP, the exclusion is no longer valid once the VDP is rescinded.  Proceed against the presumed father and any other possible consorts as if there had never been a VDP.

iv.                 If either party contests the rescission of the VDP or fails to sign consent for CSS to pursue rescission of the VDP, do not proceed with an administrative order.  Notify the parties using the “Paternity:  Unable to Rescind VDP” letters that CSS cannot assist with rescinding the VDP due to lack of consent from both parents and that the parent interested in pursuing the matter must do so on his/her own.  Refer the case to the AGO to pursue a child support order based 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.”

d.                  If genetic tests do not exclude the declarant father, proceed to establish a support obligation. 

 

“Affidavit for Voluntary Declaration of Paternity by Parents” Contested After Judicial Support Order Issued 

 

A declarant father or mother who wants to rescind the VDP after a judicial support order has been issued must contest paternity and the support order through the court that issued the order. 

 

If the parties file a judicial action to rescind the VDP after a judicial support order, the post-order worker will take the following steps.

 

1.                  Refer the CSS case to the AGO to represent CSS in the proceeding. 

 

2.                  Provide genetic tests if requested by the court, or requested by the parties and approved by the court.  The AGO will request prepayment of the genetic test fees when possible.  Otherwise, the AGO will request reimbursement of the fees after the testing.  The pre-order team located in the same office as the AGO will coordinate the testing for the AGO. 

 

3.                  If the declarant father is excluded by genetic tests, his attorney should prepare an order to rescind the VDP and terminate the support order.

 

4.                  Do not proceed against other consorts named by the mother until the VDP has been rescinded by court order because the courts may uphold the VDP (see UCA 78B-15-608).

 

5.                  The AGO will provide the parties with a copy of the final order.

 

After a judicial support order exists, if a declarant father or mother provides privately-obtained genetic tests that include the required chain of custody documentation, and if both parties consent to the rescission of the VDP, CSS will file the judicial action for rescission.  Effective May 1, 2005, UCA 78B-15-307 places a time limit of four years from the effective 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.)

 

NOTE: The PO must send the “Notice of Adjudication of Paternity” (form NAOP), a copy of the Birth Look-up screen and a copy of the rescission order to the docket unit for forwarding to the OVRS once the order is imaged and ORSIS has been updated.

 

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.  Take the following steps:

 

Provide a copy of the test results to both parents with the “Genetic Test Exclusion to Mother, Declarant Father” letter.  Include the consent option in both letters. The parties are allowed 15 days to consent to or oppose the rescission action by returning the signed statement at the bottom of the letter. 

 

1.                  If both parties consent in writing to rescission of the VDP, refer the case to the AGO to initiate an action to rescind the VDP.  In your referral, notify the AGO of the parties’ signatures indicating support for rescinding the VDP. 

a.                   Do not proceed against the next consort named by the mother until the VDP has been rescinded by judicial order because the courts may uphold the VDP despite the genetic test exclusion (see UCA 78B-15-608).

b.                  If the rescission is successful, the AGO will provide the parties with a copy of the final order.

c.                   When the AG referral has been closed, the rescission order has been imaged and ORSIS has been updated, the PO must send the “Notice of Adjudication of Paternity” (form NAOP), a copy of the Birth Look-up screen and a copy of the order rescinding the VDP to the docket unit for forwarding to OVRS.

d.                  If a presumed father excluded himself by signing the VDP, the exclusion is no longer valid once the VDP is rescinded.  Proceed against the presumed father and any other possible consorts as if there had never been a VDP.

 

2.                  If either party contests the rescission of the VDP or fails to sign consent for CSS to pursue rescission of the VDP, continue enforcement of the existing order.  Notify the parties using the “Paternity:  Unable to Rescind VDP” letters that CSS cannot assist with rescinding the VDP due to lack of consent from both parents and that they must pursue the matter on their own. 

          

 “Affidavit of Voluntary Declaration of Paternity by Parents” Contested After Administrative Support Order Issued

 

A declarant father or mother who wants to rescind a VDP after an administrative support order has been issued must contest paternity and the support order judicially; however, upon the request of either party, CSS will facilitate genetic tests prior to a judicial action being filed and if both parties consent to the rescission of the VDP, CSS will file the judicial action for rescission if the declarant father is excluded.  Effective May 1, 2005, UCA 78B-15-307 places a time limit of four years from the effective 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.)  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.         

 

1.                  Attempt to obtain a signed letter from both parties, consenting to the action to rescind the VDP if the genetic test results exclude the declarant father.  You may proceed to schedule the genetic tests based on one party’s request; however, mail additional copies of the letter 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 will act on genetic test results that exclude the declarant father.

 

2.                  If genetic tests exclude a declarant father with an administrative support order, the VDP must be rescinded by a judicial order.

a.                   Do not issue a “Decision and Order Based on Genetic Tests.” 

b.                  Review the file to see if both parties consented to the judicial rescission action in the case of a genetic test exclusion by checking the appropriate boxes and signing the letters.

c.                   Send a copy of the genetic test results to each party with the “Genetic Test Exclusion to Mother, Declarant Father” letter.  If either party participated in genetic tests without signing the letter consenting to the VDP rescission, include the consent option in the genetic test results letter.  The parties are allowed 15 days to consent to or oppose the rescission action by contacting the agent or by returning the signed statement at the bottom of the letter. 

d.                  If both parties consent in writing to rescission of the VDP, the pre-order agent will refer the case to the AGO to obtain a judicial order rescinding the VDP.  In your referral, notify the AGO of the parties’ signatures indicating support for rescinding the VDP.

i.                     The post-order agent will continue to charge current support until the judicial order is signed based on UCA 78B-15-308(3) 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 against the next consort named by the mother until the VDP has been rescinded because the courts may uphold the VDP despite the genetic test exclusion (see UCA 78B-15-608).

e.                   If either party contests the rescission of the VDP or fails to sign consent for CSS to pursue rescission of the VDP, notify the parties using the “Paternity:  Unable to Rescind VDP” letters that CSS cannot assist with rescinding the VDP due to lack of consent from both parents and that the parent interested in pursuing the matter must do so on his/her own.  Continue to enforce the existing order based 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 there is a support order and the VDP is rescinded by court order, the post-order agent will take the following steps.

a.                   End the current support obligation on ORSIS prospectively from the date of the rescission order. 

b.                  Do not refund any money or remove any arrears debts.  Per UCA 78B-15-308(6):

“(6) If the declaration is rescinded, the declarant father may not recover child support he paid prior to the entry of an order of rescission.”

c.                   Update the 250 Child Paternity Establishment Detail I screen as follows:

A.                 change the “Y” in the PAT EST (Paternity Established) field to an “N”;

B.                 remove the information in the PAT EST DATE and METHOD fields;

C.                 add the date of the genetic tests in the PAT EXCL DATE field;

D.                 complete the PAT EXCLUSION REASON field using Assist GT for assistance with the valid codes and the PAT EXCL DATE field; 

 

NOTE:  If genetic testing was involved in the disestablishment process, use GNTE (Genetic Test Exclusion) and the date of the tests in these fields.

E.                  place a “Y” in the OUT OF WEDLOCK field; and,

F.                  press = to commit. 

 

NOTE:  Do not use “X” in the PAT EST field to close the paternity record if paternity has been disestablished. 

a.                   Coordinate with the intake team for a new case to be opened to pursue paternity establishment on the next consort(s).

 

NOTE:  If the AGO obtains the judicial rescission order, the AGO will provide the parties with a copy of the final order.  The PO must send the “Notice of Adjudication of Paternity” (form NAOP), a copy of the Birth Look-up screen and a copy of the rescission order to the docket unit for forwarding to OVRS once the order is imaged and ORSIS has been updated. 

 

Voluntary “Acknowledgments” of Paternity from Other States

 

UCA 78B-15-310 states:

 

“78B-15-310. Full faith and credit.
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.”

 

Honor voluntary declarations obtained by other states (often called “voluntary acknowledgements” rather than “declarations”).  All states are required by the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 1996 to have a law providing for voluntary declaration of paternity in hospitals and for rescinding a declaration.  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.