Bill Text: MS SB2705 | 2010 | Regular Session | Introduced
Bill Title: Paternity; clarify conditions for disestablishment of.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Failed) 2010-02-02 - Died In Committee [SB2705 Detail]
Download: Mississippi-2010-SB2705-Introduced.html
MISSISSIPPI LEGISLATURE
2010 Regular Session
To: Judiciary, Division A
By: Senator(s) Hyde-Smith
Senate Bill 2705
AN ACT TO CODIFY SECTION 93-9-10, MISSISSIPPI CODE OF 1972, TO PROVIDE CIRCUMSTANCES UNDER WHICH A LEGAL FATHER MAY DISESTABLISH PATERNITY AND TERMINATE A CHILD SUPPORT OBLIGATION; TO AMEND SECTION 93-9-21, MISSISSIPPI CODE OF 1972, TO ALLOW GENETIC TESTING ONLY WHEN PATERNITY HAS NOT BEEN PREVIOUSLY ESTABLISHED; TO AMEND SECTION 93-11-71, MISSISSIPPI CODE OF 1972, IN CONFORMITY AND TO DELETE THE REVERTER ON THIS CODE SECTION RELATING TO THE ENFORCEMENT OF JUDGMENTS FOR OVERDUE CHILD SUPPORT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. The following shall be codified as Section 93-9-10, Mississippi Code of 1972:
93-9-10. (1) This section establishes circumstances under which a male (legal father) may disestablish paternity and terminate a child support obligation when the male is not the biological father of the child. To disestablish paternity and terminate a child support obligation, the male must file a petition in the court having jurisdiction over the child support obligation. The petition must be served on the mother or other legal guardian or custodian of the child. If the Department of Human Services is or has been a party to the establishment of paternity or collection of child support, the Attorney General of the State of Mississippi must be served with a copy of the petition. The petition must include:
(a) An affidavit executed by the petitioner that newly discovered evidence relating to the paternity of the child has come to the petitioner's knowledge since the initial paternity determination.
(b) The results of scientific test(s) that are generally acceptable to the scientific community to show a probability of paternity, administered within one (1) year prior to the filing of such petition, which results indicate that the male (legal father) is excluded as being the biological father of the child or an affidavit executed by the petitioner stating that he did not have access to the child to have the scientific testing performed prior to the filing of the petition. A petitioner who files such affidavit can request in the petition that the court order the child and mother, if available, be tested.
(2) The court shall grant relief on a petition filed in accordance with subsection (1) upon a finding by the court of all of the following:
(a) Newly discovered evidence relating to the paternity of the child has come to the petitioner's knowledge since the initial paternity determination.
(b) The scientific testing required in subsection (1)(b) was properly conducted.
(c) The male ordered to pay child support has not adopted the child.
(d) The child was not conceived by artificial insemination while the male ordered to pay support and the child's mother were married.
(e) The male ordered to pay child support did not act to prevent the biological father of the child from asserting his parental rights with respect to the child.
(3) Notwithstanding subsection (2), a court shall not set aside the paternity determination or child support order if the male engaged in any of the following conduct:
(a) Married or habitated with the mother of the child and voluntarily assumed the parental obligation and duty to support the child after having knowledge that he is not the biological father of the child;
(b) Consented to be named as the biological father on the child's birth certificate and signed said birth certificate or executed a simple acknowledgement of paternity, after having failed to request genetic testing or having declined genetic testing, and having failed to withdraw consent or acknowledgment within the time provided for by law;
(c) Signed a voluntary acknowledgment of paternity and a stipulated agreement of paternity, after having failed to request genetic testing or having declined genetic testing, and the agreement has been approved by order of the court;
(d) Signed a stipulated agreement of support which has been approved by order of the court after having knowledge that he is not the biological father of the child;
(e) Been named as the legal father or ordered to pay support by valid order of the court after having failed to request genetic testing or having declined genetic testing;
(f) Received written notice from the Department of Human Services or any court directing him to submit to genetic testing which he willfully disregarded.
(4) In the event the petitioner fails to make the requisite showing required by this section, the court shall deny the petition.
(5) In the event relief is granted pursuant to this section, relief shall be limited to the issues of prospective child support payments, past due child support payments, termination of parental rights, custody and visitation privileges as otherwise provided by law. This section shall not be construed to create a cause of action to recover child support that has been previously paid.
(6) The duty to pay child support and other legal obligations for the child shall not be suspended while the petition is pending except for good cause. However, the court may order that the child support paid be held by the court or the Department of Human Services until final determination of paternity has been made.
(7) The party requesting genetic testing shall pay any fees charged for the testing.
(8) In any action brought pursuant to this section, the court on its own motion, or on the motion of any party, may order the biological mother and child, through the child's legal guardian or custodian, to submit to genetic testing.
(9) If the relief sought under this petition is not granted by the court, the petitioner shall be assessed the court costs, genetic testing fees and reasonable attorney fees.
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.
SECTION 3. Section 93-11-71, Mississippi Code of 1972, is amended as follows:
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93-11-71. (1) Whenever a court orders any person to make periodic payments of a sum certain for the maintenance or support of a child, and whenever such payments as have become due remain unpaid for a period of at least thirty (30) days, a judgment by operation of law shall arise against the obligor in an amount equal to all payments that are then due and owing.
(a) A judgment arising under this section shall have the same effect and be fully enforceable as any other judgment entered in this state. A judicial or administrative action to enforce the judgment may be begun at any time; and
(b) Such judgments arising in other states by operation of law shall be given full faith and credit in this state.
(2) Any judgment arising under the provisions of this section shall operate as a lien upon all the property of the judgment debtor, both real and personal, which lien shall be perfected as to third parties without actual notice thereof only upon enrollment on the judgment roll. The department or attorney representing the party to whom support is owed shall furnish an abstract of the judgment for periodic payments for the maintenance and support of a child, along with sworn documentation of the delinquent child support, to the circuit clerk of the county where the judgment is rendered, and it shall be the duty of the circuit clerk to enroll the judgment on the judgment roll. Liens arising under the provisions of this section may be executed upon and enforced in the same manner and to the same extent as any other judgment.
(3) Notwithstanding the provisions in subsection (2) of this section, any judgment arising under the provisions of this section shall subject the following assets to interception or seizure without regard to the entry of the judgment on the judgment roll of the situs district or jurisdiction and such assets shall apply to all child support owed including all arrears:
(a) Periodic or lump-sum payments from a federal, state or local agency, including unemployment compensation, workers' compensation and other benefits;
(b) Winnings from lotteries and gaming winnings that are received in periodic payments made over a period in excess of thirty (30) days;
(c) Assets held in financial institutions;
(d) Settlements and awards resulting from civil actions;
(e) Public and private retirement funds, only to the extent that the obligor is qualified to receive and receives a lump-sum or periodic distribution from the funds; and
(f) Lump-sum payments as defined in Section 93-11-101.
(4) Notwithstanding the provisions of subsections (1) and (2) of this section, upon a petition filed pursuant to Section 93-9-10 and meeting all conditions necessary for relief under said statute, * * * the court shall disestablish paternity and may forgive any child support arrears of the obligor for the child or children determined by the court not to be the biological child or children of the obligor, if the court makes a written finding that, based on the totality of the circumstances, the forgiveness of the arrears is equitable under the circumstances.
(5) In any case in which a child receives assistance from block grants for Temporary Assistance for Needy Families (TANF), and the obligor owes past-due child support, the obligor, if not incapacitated, may be required by the court to participate in any work programs offered by any state agency.
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SECTION 4. This act shall take effect and be in force from and after July 1, 2010.
