Senate Bill No. 70

(By Senators Boley and Nohe)

____________

[Introduced January 11, 2012; referred to the Committee on the Judiciary.]

____________

A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §48-24A-101, §48-24A-102, §48-24A-103, §48-24A-104, §48-24A-105, §48-24A-106, §48-24A-107, §48-24A-108, §48-24A-109, §48-24A-110, §48-24A-111, §48-24A-112, §48-24A-113 and §48-24A-114, all relating to creating the Paternity Justice Act of 2012; providing short title; making legislative findings and declarations; providing definitions; permitting a motion to vacate judgment of paternity and when it may be granted; appointing guardian ad litem for child; providing for genetic testing procedures to aid in determination of paternity; establishing who pays the costs of genetic testing; setting forth when an order vacating judgment of paternity is not to be entered; establishing what is to be considered in vacating judgment of paternity; modification of child support; when Bureau for Child Support Enforcement may participate; when prior orders are to be terminated; and providing that article does not affect adoptions.

Be it enacted by the Legislature of West Virginia:

    That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §48-24A-101, §48-24A-102, §48-24A-103, §48-24A-104, §48-24A-105, §48-24A-106, §48-24A-107, §48-24A-108, §48-24A-109, §48-24A-110, §48-24A-111, §48-24A-112, §48-24A-113 and §48-24A-114, all to read as follows:

ARTICLE 24A. PATERNITY JUSTICE ACT OF 2012.

§48-24A-101. Short title.

    This article may be cited as the “Paternity Justice Act of 2012".

§48-24A-102. Findings and declarations.

    (a) The Legislature finds and declares all of the following:

    (1) DNA genetic testing is recognized as scientifically valid by the courts of this country.

    (2) In 1995, the State of West Virginia recognized the validity of DNA testing and created a procedure for an individual convicted of certain crimes to petition a court to reopen his or her case.

    (3) A man who is adjudicated to be the father of a child by a court in a paternity action when he is not actually the biological father of the child may be financially liable for up to eighteen years of child support.

    (4) The American Association of Blood Banks reported that out of a total of more than two hundred eighty thousand cases evaluated in 1999, almost thirty percent excluded the tested individual as the biological father.

    (5) A growing number of states now have antifraud paternity statutes which permit an individual previously adjudicated to be the father of a child to reopen his case and present or obtain DNA testing if he believes he may have been erroneously identified as the father.

    (6) Respect for the judicial system is greatly diminished when the laws do not permit the correction of an injustice.

    (b) For these reasons, it is the intent of the Legislature to enact the Paternity Justice Act of 2012.

§48-24A-103. Definitions.

    For purposes of this article, the following definitions shall apply:

    (1) "Child" means the child of a previously established father, as determined by the court in a judgment that is the subject of a motion to vacate brought pursuant to this article.

    (2) "Previously established father" means a person identified as the father of a child in a judgment issued by the court in which the issue of paternity was, or could have been, raised.

    (3) "Previously established mother" means a person identified as the mother of a child in a judgment issued by the court that is the subject of a motion to vacate brought pursuant to this article.

§48-24A-104. Motion to vacate judgment establishing paternity.

    Notwithstanding any other provision of law, after the expiration of the time period within which a judgment may be vacated pursuant to Rule 60 of the West Virginia Rules of Civil Procedure, the previously established mother of a child, the previously established father of a child, the child, or the legal representative of any of these persons may move to vacate a judgment establishing paternity if genetic testing indicates that the previously established father of a child is not the biological father of the child.

§48-24A-105. Vacating judgment of paternity.

    (a) A court shall grant a motion to vacate a judgment establishing paternity only if all of the following conditions are met:

    (1) The motion to vacate is filed prior to the date the child reaches eighteen years of age. 

    (2) The motion is filed in a court of proper venue.

    (3) The motion contains, at a minimum, all of the following information, if known:

    (A) The legal name, age, county of residence and residence address of the child.

    (B) The names, mailing addresses and counties of residence, or, if deceased, the date and place of death, of the following persons:

    (i) The previously established father and the previously established mother, and the biological mother and father of the child.

    (ii) The guardian of the child, if any.

    (iii) Any person who has physical custody of the child.

    (iv) The guardian ad litem of the child, as appointed pursuant to the provisions of section one hundred-six of this article.

    (C) A declaration that the person filing a motion to vacate a judgment of paternity believes that the previously established father is not the biological father of the child, the specific reasons for this belief and a declaration that the person desires that the paternity judgment be vacated. The moving party is not required to present evidence of a paternity test indicating that the previously established father is not the biological father of the child in order to bring this motion.

    (4) The court finds that the conclusions of the expert, as supported by the evidence, are that the previously established father is not the biological father of the child.

    (b) A motion to vacate the judgment of paternity shall include a proof of service upon the following persons, excluding the person bringing the motion:

    (1) The previously established mother.

    (2) The previously established father.

    (3) The Bureau for Child Support Enforcement, if services are being provided to the child pursuant to Title IV-D or IV-E of the Social Security Act (42 U.S.C. §301 et seq.).

§48-24A-106. Guardian ad litem for child.

    A guardian ad litem shall be appointed for the child to represent the best interests of the child in an action brought pursuant to this article.

§48-24A-107. Genetic testing procedures to aid in determination of paternity.

    Any genetic testing used to support the motion to vacate shall be conducted in accordance with the provisions of section one hundred-three, article twenty-four of this chapter. The court may, at the request of any person authorized to make a motion pursuant to this article or upon its own motion, order genetic testing to assist the court in making a determination whether the previously established father is the biological father of the child. 

§48-24A-108. When a court may grant motion to vacate paternity judgment.

    If the court determines that the genetic test results conducted in accordance with the provisions of section one hundred-three, article twenty-four of this chapter exclude the previously established father as the biological father of the child, the court shall grant the motion to vacate the paternity judgment.

§48-24A-109. Costs of genetic testing.

    The costs of genetic testing ordered pursuant to section one hundred-seven of this article, the costs of the guardian ad litem appointed pursuant to section one hundred-six of this article and all court costs, including attorney's fees, shall be paid by the nonprevailing party.

§48-24A-110. When Bureau for Child Support Enforcement may participate.

    (a) The Bureau for Child Support Enforcement may participate in a proceeding initiated pursuant to this article only if it is providing services as specified in Title IV-D of the Social Security Act (42 U.S.C. §651 et seq.) at the time the motion is filed pursuant to this article to a child who is the subject of that motion, and may participate in the proceeding only if those services are being provided at the time the motion is heard.

    (b) When the Bureau for Child Support Enforcement participates in a proceeding under this article, it may obtain an administrative order for genetic tests as described in section one hundred-seven of this article.

    (c) The Bureau for Child Support Enforcement is not responsible for the costs of genetic testing when performed in connection with a proceeding under this article, nor is the Bureau for Child Support Enforcement required to provide for, or assist in, genetic testing in any case in which it is not providing services under Title IV-D of the Social Security Act (42 U.S.C. §651 et seq.).

§48-24A-111. When order vacating judgment for paternity not to be issued.

    A court may not issue an order vacating a judgment establishing paternity pursuant to this article under either of the following circumstances:

    (1) The judgment was made or entered by a tribunal of another state, even if the enforcement of that judgment is sought in this state, unless genetic tests exclude the previously established father as the biological father; or

    (2) The judgment was made or entered in this state and genetic tests were conducted which did not exclude the previously established father as the biological father of the child or the judgment resulted from a trial or contested hearing in which the issue of paternity was, or could have been, raised and in which the defendant was represented by counsel.

§48-24A-112. Modification of child support.

    Notwithstanding any other provision of law, if the court grants a motion to vacate a paternity judgment pursuant to this article, the court shall modify any order for child support issued on the basis of that previous judgment of paternity.

§48-24A-113. When prior orders to be terminated.

    Except as otherwise provided in an order granting a motion to vacate pursuant to this article, upon the granting of that motion, all prior orders granting custody or visitation to a previously established father may be terminated by the court. In making this determination, the court shall consider all of the following circumstances:

    (1) The nature, duration and quality of any relationship between the previously established father and the child, including the duration and frequency of any time periods during which the child and the previously established father resided in the same household or enjoyed a parent-child relationship; and

    (2) Additional factors deemed by the court to be relevant to its determination of the child's best interests.

§48-24A-114. Article does not affect adoptions.

    This article does not establish a basis for termination of any adoption, and does not affect any obligation of an adoptive parent to an adoptive child.

    NOTE: The purpose of this bill is to provide a procedure for vacating a judgment of paternity when there is genetic evidence that excludes the previously established father as the biological father of the child in question.

    This article is new; therefore, strike-throughs and underscoring have been omitted.