Bill Text: MS SB2237 | 2015 | Regular Session | Introduced
Bill Title: Genetic testing; reimbursement of costs to a father successfully asserting paternity.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Failed) 2015-02-03 - Died In Committee [SB2237 Detail]
Download: Mississippi-2015-SB2237-Introduced.html
MISSISSIPPI LEGISLATURE
2015 Regular Session
To: Judiciary, Division A
By: Senator(s) Collins
Senate Bill 2237
AN ACT TO AMEND SECTION 93-9-9, MISSISSIPPI CODE OF 1972, TO CLARIFY THE COURT'S DUTY TO DECREE A CHILD'S SURNAME IN AN ORDER OF FILIATION AND TO PROVIDE THAT THE FATHER SEEKING AN ORDER OF FILIATION CANNOT BE CHARGED MORE FOR GENETIC TESTING THAN WOULD BE CHARGED TO THE MOTHER PROCEEDING AGAINST A PUTATIVE FATHER TO SEEK AN ORDER OF FILIATION; TO AMEND SECTION 93-9-21, MISSISSIPPI CODE OF 1972, TO REQUIRE A DEFENDANT IN A PATERNITY ACTION TO REIMBURSE THE SUCCESSFUL PLAINTIFF; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 93-9-9, Mississippi Code of 1972, is amended as follows:
93-9-9. (1) Paternity may
be determined upon the petition of the mother, or father, the child or any
public authority chargeable by law with the support of the child; provided that
such an adjudication after the death of the defendant must be made only upon
clear and convincing evidence. If paternity has been lawfully determined, or
has been acknowledged in writing according to the laws of this state, the
liabilities of the noncustodial parent may be enforced in the same or other
proceedings by the custodial parent, the child, or any public authority which
has furnished or may furnish the reasonable expenses of pregnancy, confinement,
education, necessary support and maintenance, and medical or funeral expenses
for the custodial parent or the child. The trier of fact shall receive without
the need for third-party foundation testimony certified, attested or sworn documentation
as evidence of (a) childbirth records; (b) cost of filing fees; (c) court
costs; (d) services of process fees; (e) mailing cost; (f) genetic tests and
testing fees; (g) the department's attorney's fees; (h) in cases where the
state or any of its entities or divisions have provided medical services to the
child or the child's mother, all costs of prenatal care, birthing, postnatal
care and any other medical expenses incurred by the child or by the mother as a
consequence of the mother's pregnancy or delivery; and (i) funeral expenses.
All costs and fees shall be ordered paid to the Department of Human Services in
all cases successfully prosecuted with a minimum of Two Hundred Fifty Dollars
($250.00) in attorney's fees or an amount determined by the court without
submitting an affidavit. Proceedings may be instituted at any time until such
child attains the age of twenty-one (21) years unless the child has been
emancipated as provided in Section 93-5-23 and Section 93-11-65. * * *
If
the court determines paternity, the surname of the child shall be * * * as agreed by the
parents, and if the parents cannot agree, as the judgment specifies * * * according to the best interests
of the child.
(2) If the alleged father in an action to determine paternity to which the Department of Human Services is a party fails to appear for a scheduled hearing after having been served with process or subsequent notice consistent with the Rules of Civil Procedure, his paternity of the child(ren) shall be established by the court if an affidavit sworn to by the mother averring the alleged father's paternity of the child has accompanied the complaint to determine paternity. Said affidavit shall constitute sufficient grounds for the court's finding of the alleged father's paternity without the necessity of the presence or testimony of the mother at the said hearing. The court shall, upon motion by the Department of Human Services, enter a judgment of paternity. Any person who shall willfully and knowingly file a false affidavit shall be subject to a fine of not more than One Thousand Dollars ($1,000.00).
(3) Upon application of both parents to the State Board of Health and receipt by the State Board of Health of a sworn acknowledgement of paternity executed by both parents subsequent to the birth of a child born out of wedlock, the birth certificate of the child shall be amended to show such paternity if paternity is not shown on the birth certificate. Upon request of the parents for the legitimization of a child under this section, the surname of the child shall be changed on the certificate to that of the father.
(4) (a) A signed voluntary acknowledgment of paternity is subject to the right of any signatory to rescind the acknowledgment within the earlier of:
(i) One (1) year; or
(ii) The date of a judicial proceeding relating to the child, including a proceeding to establish a support order, in which the signatory is a party.
(b) After the expiration of the one-year period specified in subsection (4)(a)(i) of this section, a signed voluntary acknowledgment of paternity may be challenged in court only on the basis of fraud, duress or material mistake of fact, with the burden of proof upon the challenger; the legal responsibilities, including child support obligations, of any signatory arising from the acknowledgment may not be suspended during the pendency of the challenge, except for good cause shown.
(c) During the one-year time period specified in subsection (4)(a)(i) of this section, the alleged father may request genetic testing through the Department of Human Services in accordance with the provisions of Section 93-9-21. The cost of genetic testing assessed to the father seeking to establish his paternity shall not exceed the cost that would be assessed to the mother if the mother were to request genetic testing.
(d) The one-year time limit, specified in subsection (4)(a)(i) of this section, for the right of the alleged father to rescind the signed voluntary acknowledgement of paternity shall be tolled from the date the alleged father files his formal application for genetic testing with the Department of Human Services until the date the test results are revealed to the alleged father by the department. After the one-year time period has expired, not including any period of time tolled for the purpose of acquiring genetic testing through the department, the provisions of subsection (4)(b) of this section shall apply.
SECTION 2. Section 93-9-21, Mississippi Code of 1972, is amended as follows:
93-9-21. (1) (a) In all cases brought pursuant to Title IV-D of the Social Security Act, upon sworn documentation by the mother, putative father, or the Department of Human Services alleging paternity, the department may issue an administrative order for paternity testing which requires the mother, putative father and minor child to submit themselves for paternity testing. The department shall send the putative father a copy of the Administrative Order and a Notice for Genetic Testing which shall include the date, time and place for collection of the putative father's genetic sample. The department shall also send the putative father a Notice and Complaint to Establish Paternity which shall specify the date and time certain of the court hearing by certified mail, restricted delivery, return receipt requested. Notice shall be deemed complete as of the date of delivery as evidenced by the return receipt. The required notice may also be delivered by personal service upon the putative father in accordance with Rule 4 of the Mississippi Rules of Civil Procedure insofar as service of an administrative order or notice is concerned.
(b) If the putative father does not submit to genetic testing, the court shall, without further notice, on the date and time previously set through the notice for hearing, review the documentation of the refusal to submit to genetic testing and make a determination as to whether the complaint to establish paternity should be granted. The refusal to submit to such testing shall create a rebuttable presumption of an admission to paternity by the putative father.
(c) In any case in which the Department of Human Services orders genetic testing, the department is required to advance costs of such tests subject to recoupment from the alleged father if paternity is established. If either party challenges the original test results, the department shall order additional testing at the expense of the challenging party.
(2) In any case in which paternity has not been established, the court, on its own motion or on motion of the plaintiff or the defendant, shall order the mother, the alleged father and the child or children to submit to genetic tests and any other tests which reasonably prove or disprove the probability of paternity. If paternity has been previously established, the court shall only order genetic testing pursuant to Section 93-9-10.
If any party refuses to submit to such tests, the court may resolve the question of paternity against such party or enforce its order for genetic testing as the rights of others and the interest of justice require.
(3) Any party calling a witness or witnesses for the purpose of testifying that they had sexual intercourse with the mother at any possible time of conception of the child whose paternity is in question shall provide all other parties with the name and address of the witness at least twenty (20) days before the trial. If a witness is produced at the hearing for the purpose provided in this subsection but the party calling the witness failed to provide the twenty-day notice, the court may adjourn the proceeding for the purpose of taking a genetic test of the witness before hearing the testimony of the witness if the court finds that the party calling the witness acted in good faith.
(4) The court shall ensure that all parties are aware of their right to request genetic tests under this section.
(5) (a) Genetic tests shall be performed by a laboratory selected from the approved list as prepared and maintained by the Department of Human Services.
(b) The Department of Human Services shall publicly issue a request for proposals, and such requests for proposals when issued shall contain terms and conditions relating to price, technology and such other matters as are determined by the department to be appropriate for inclusion or required by law. After responses to the request for proposals have been duly received, the department shall select the lowest and best bid(s) on the basis of price, technology and other relevant factors and from such proposals, but not limited to the terms thereof, negotiate and enter into contract(s) with one or more of the laboratories submitting proposals. The department shall prepare a list of all laboratories with which it has contracted on these terms. The list and any updates thereto shall be distributed to all chancery clerks. To be eligible to appear on the list, a laboratory must meet the following requirements:
(i) The laboratory is qualified to do business within the State of Mississippi;
(ii) The laboratory can provide test results in less than fourteen (14) days; and
(iii) The laboratory must have participated in the competitive procurement process.
(6) If a complainant initiates a paternity action and is ordered to advance the genetic testing costs upon a motion from the defendant, the defendant shall reimburse the complainant for the genetic testing costs upon the complainant's success in securing an adjudication of paternity.
SECTION 3. This act shall take effect and be in force from and after July 1, 2015.
