Bill Text: MS SB2911 | 2011 | Regular Session | Introduced

Mississippi Senate Bill 2911 (Prior Session Legislation)

Introduced

Bill Title: Paternity; provide circumstances for disestablishment and clarify genetic testing requirements.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Failed) 2011-02-01 - Died In Committee [SB2911 Detail]

Download: Mississippi-2011-SB2911-Introduced.html

MISSISSIPPI LEGISLATURE

2011 Regular Session

To: Public Health and Welfare; Judiciary, Division A

By: Senator(s) Hyde-Smith

Senate Bill 2911

AN ACT TO CODIFY SECTION 93-9-10 AND AMEND SECTION 93-11-71, 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 93-9-28, MISSISSIPPI CODE OF 1972, TO REVISE THE AMOUNT OF TIME A PERSON HAS TO RESCIND ACKNOWLEDGEMENT OF PATERNITY AFTER HAVING ACKNOWLEDGED PATERNITY AND SAID ACKNOWLEDGEMENT IS ADDED TO THE CHILD'S BIRTH CERTIFICATE; 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. Disestablishment of paternity. (1) This section establishes circumstances under which a legal father may disestablish paternity and terminate a child support obligation when the legal father is not the biological father of the child. To disestablish paternity and terminate a child support obligation, the legal father 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 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) of this section 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) of this section was properly conducted.

(d) The child was not conceived by artificial insemination while the legal father ordered to pay support and the child's mother were married.

(e) The legal father 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) of this section, a court shall not set aside the paternity determination or child support order if the legal father 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 acknowledgment of paternity and failed to withdraw consent or acknowledgment within the time provided for by law in Section 43-19-28;

(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 declined genetic testing;

(f) Failed to appear for a scheduled genetic testing draw pursuant to a valid court order compelling him to submit to genetic testing.

(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 will be assessed the court costs, genetic testing fees and reasonable attorney fees.

SECTION 2. Section 93-11-71, Mississippi Code of 1972, is amended as follows:

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:

(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;

(d) Settlements and awards resulting from civil actions; and

(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.

(4) Notwithstanding the provisions of subsections (1) and (2) of this section, upon a motion filed by the obligor, pursuant to Section 93-9-10, and a finding of clear and convincing evidence including negative DNA testing that the obligor is not the biological father of the child or children for whom support has been ordered, 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.

* * *

SECTION 3. 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 4. Section 93-9-28, Mississippi Code of 1972, is amended as follows:

93-9-28. (1) The Mississippi State Department of Health in cooperation with the Mississippi Department of Human Services shall develop a form and procedure which may be used to secure a voluntary acknowledgement of paternity from the mother and father of any child born out of wedlock in Mississippi. The form shall clearly state on its face that the execution of the acknowledgement of paternity shall result in the same legal effect as if the father and mother had been married at the time of the birth of the child. The form shall also clearly indicate the right of the alleged father to request genetic testing through the Department of Human Services within the one-year time period specified in subsection (2)(a)(i) of this section and shall state the adverse effects and ramifications of not availing himself of this one-time opportunity to definitively establish the paternity of the child. When such form has been completed according to the established procedure and the signatures of both the mother and father have been notarized, then such voluntary acknowledgement shall constitute a full determination of the legal parentage of the child. The completed voluntary acknowledgement of paternity shall be filed with the Bureau of Vital Statistics of the Mississippi State Department of Health. The name of the father shall be entered on the certificate of birth upon receipt of the completed voluntary acknowledgement.

(2) (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 (2)(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 (2)(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.

(d) The one-year time limit, specified in subsection (2)(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 (2)(b) of this section shall apply.

(3) The Mississippi State Department of Health and the Mississippi Department of Human Services shall cooperate to establish procedures to facilitate the voluntary acknowledgement of paternity by both father and mother at the time of the birth of any child born out of wedlock. Such procedures shall establish responsibilities for each of the departments and for hospitals, birthing centers, midwives, and/or other birth attendants to seek and report voluntary acknowledgements of paternity. In establishing such procedures, the departments shall provide for obtaining the social security account numbers of both the father and mother on voluntary acknowledgements.

(4) Upon the birth of a child out of wedlock, the hospital, birthing center, midwife or other birth attendant shall provide an opportunity for the child's mother and natural father to complete an acknowledgement of paternity by giving the mother and natural father the appropriate forms and information developed through the procedures established in subsection (3). The hospital, birthing center, midwife or other birth attendant shall be responsible for providing printed information, and audio visual material if available, related to the acknowledgement of paternity, and shall be required to provide notary services needed for the completion of acknowledgements of paternity. The information described above shall be provided to the mother and natural father, if present and identifiable, within twenty-four (24) hours of birth or before the mother is released. Such information, including forms, brochures, pamphlets, video tapes and other media, shall be provided at no cost to the hospital, birthing center or midwife by the Mississippi State Department of Health, the Department of Human Services or other appropriate agency.

SECTION 5. This act shall take effect and be in force from and after July 1, 2011.