ENGROSSED

COMMITTEE SUBSTITUTE

FOR

H. B. 2766


(By Delegates Trump, Riggs, Amores, Faircloth and Staton)

(Originating in the House Committee on the Judiciary)

[March 1, 1995]


A BILL to amend article five-b, chapter sixteen of the code of
West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section thirteen; and to amend and reenact sections one, three, four and six, article six, chapter forty-eight-a of said code, all relating to expediting the establishment of paternity; codifying and amending relief which shall or may be granted upon a judicial finding or voluntary acknowledgement of paternity; implementing a hospital based paternity program; revocation of voluntary acknowledgements; and enacting provisions of the omnibus budget reconciliation act of one thousand nine hundred ninety-four.

Be it enacted by the Legislature of West Virginia:
That article five-b, chapter sixteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new section, designated section thirteen; and that sections one, three, four and six, article six, chapter forty-eight-a be amended and reenacted, all to read as follows:
CHAPTER 16. PUBLIC HEALTH.

ARTICLE 5B. HOSPITALS AND SIMILAR INSTITUTIONS.

§16-5B-13. Hos
pital based paternity program.
(a) For purposes of this section, "birthing hospital" means a hospital that has a licensed obstetric care unit or is licensed to provide obstetric services, or a licensed birthing center associated with a hospital. A birthing center is a facility outside a hospital that provides maternity services.
(b) Every public and private birthing hospital in West Virginia shall participate in the hospital based paternity program.
(c) During the period immediately preceding or following the birth of a child to an unmarried woman in the hospital, the hospital shall:
(1) Provide to both the mother and the alleged father, if he is present in the hospital:
(A) Written materials about paternity establishment;
(B) Forms necessary to voluntarily acknowledge paternity;
(C) A written description of the rights and responsibilities of acknowledging paternity; and
(D) An opportunity, prior to discharge from the hospital to speak with hospital staff, either by telephone or in person, who are trained to clarify information and answer questions about paternity establishment.
(2) Provide the mother and the alleged father, if he is present, the opportunity to voluntarily acknowledge paternity in the hospital;
(3) Afford due process safeguards;
(4) Provide the mother and the father with a copy of the completed acknowledgement; and
(5) Forward the original and one copy of the completed acknowledgement to the state registrar of vital statistics.
(d) The state must assess each birth hospital's program on at least an annual basis.
(e) The provisions of this section may be enforced by the state wherein any offending hospital is located by filing an action in the circuit court of the county in which the offending hospital is located.
CHAPTER 48A. ENFORCEMENT OF FAMILY OBLIGATIONS.

ARTICLE 6. ESTABLISHMENT OF PATERNITY.

§48A-6-1. Paternity proceedings.

(a) A civil action to establish the paternity of a child and to obtain an order of support for the child may be instituted, by verified complaint, in the circuit court of the county where the child resides: Provided, That if such venue creates a hardship for the parties, or either of them, or if judicial economy requires, the court may transfer the action to the county where either of the parties resides.
(b) A "paternity proceeding" is a summary proceeding, equitable in nature and within the domestic relations jurisdiction of the courts, wherein a circuit court upon the petition of the state or another proper party may intervene to determine and protect the respective personal rights of a child for whom paternity has not been lawfully established, of the mother of such the child and of the putative father of such the child.
(c) The sufficiency of the statement of the material allegations in the complaint set forth as grounds for relief and the grant or denial of the relief prayed for in a particular case shall rest in the sound discretion of the court, to be exercised by the court according to the circumstances and exigencies of the case, having due regard for precedent and the provisions of the statutory law of this state.
(d) A decree or order made and entered by a court in a paternity proceeding shall include a determination of the filial relationship, if any, which exists between a child and his or her putative father, and, if such relationship is established, shall resolve dependent claims arising from family rights and obligations attendant to such filial relationship.
(e) A paternity proceeding may be brought by any of the following persons:
(1) An unmarried woman with physical or legal custody of a child to whom she gave birth;
(2) A married woman with physical or legal custody of a child to whom she gave birth, if the complaint alleges that:
(A) Such The married woman lived separate and apart from her husband preceding the birth of the child;
(B) Such The married woman did not cohabit with her husband at any time during such separation and that such the separation has continued without interruption; and
(C) The defendant, rather than her husband, is the father of the child;
(3) The state of West Virginia or the department of health and human resources, or the child advocate office on its behalf, when such the proceeding is deemed necessary to prevent such the child from being or becoming a public charge;
(4) Any person who is not the mother of the child, but who has physical or legal custody of such the child;
(5) The guardian or committee of such the child;
(6) The next friend of such the child when the child is a minor;
(7) By such the child in his own right at any time after the child's eighteenth birthday but prior to the child's twenty-first birthday; or
(8) A man purporting to be the father of a child born out of wedlock, when there has been no prior judicial determination of paternity.
(f) Blood or tissue samples taken pursuant to the provisions of this article may be ordered to be taken in such locations as may be convenient for the parties so long as the integrity of the chain of custody of such the samples can be preserved.
(g) A person who has sexual intercourse in this state submits to the jurisdiction of the courts of this state for a proceeding brought under this article with respect to a child who was conceived by that act of intercourse. Service of process may be perfected according to the rules of civil procedure.
(h) If the person against whom the proceeding is brought has failed to plead or otherwise defend the action after proper service has been obtained, judgment by default may shall be issued by the court as provided by the rules of civil procedure.
§48A-6-3. Medical testing procedures to aid in the determination of paternity.

(a) The court may, on its own motion, or shall upon the motion of any party, order the mother, her child and the man to submit to blood tests or tissue tests to aid the court in proving or disproving paternity. Such motion may be made, upon ten days' written notice to the mother and alleged father, without the necessity of filing a complaint. If such the tests are ordered, the court shall direct that the inherited characteristics, including, but not limited to, blood types, be determined by appropriate testing procedures at a hospital, independent medical institution or independent medical laboratory, duly licensed under the laws of this state, or any other state, and shall appoint an expert qualified as an examiner of genetic markers to analyze and interpret the results and to report to the court. The court shall consider the results as follows:
(1) Blood or tissue test results which exclude the man as the father of the child are admissible and shall be clear and convincing evidence of nonpaternity and the court shall, upon considering such evidence, dismiss the action.
(2) Blood or tissue test results which show a statistical probability of paternity of less than ninety-eight percent are admissible and shall be weighed along with other evidence of the defendant's paternity.
(3) Undisputed blood or tissue test results which show a statistical probability of paternity of more than ninety-eight percent shall, when filed with the court, legally establish the man as the father of the child for all purposes and child support may be established pursuant to the provisions of this chapter.
(4) If the defendant desires to challenge the results of the blood or tissue tests or the expert's analysis of inherited characteristics, he shall file a written protest within thirty days of the filing of such the test results, and serve a copy of such protest upon the other party. The written protest must be filed at least thirty days prior to any hearing involving the test results. The court, upon reasonable request of a party, shall order that additional tests be made by the same laboratory or another laboratory within thirty days of the entry of such the order, at the expense of the party requesting additional testing. If the results of the blood or tissue tests or the expert's analysis which show a statistical probability of paternity of more than ninety-eight percent are confirmed by the additional testing, then such the results are admissible evidence which is clear and convincing evidence of paternity. The admission of such the evidence creates a presumption that the defendant is the father.
(b) Documentation of the chain of custody of the blood or tissue specimens is competent evidence to establish such the chain of custody. A verified expert's report shall be admitted at trial unless a challenge to the testing procedures or a challenge to the results of test analysis has been made before trial. The costs and expenses of making such the tests shall be paid by the parties in proportions and at times determined by the court.
§48A-6-4. Establishment of paternity and duty of support.

(a) If the defendant, by verified responsive pleading, shall admit that the man is the father of the child and owes a duty of support, or if after a trial on the merits, the court shall find, by clear and convincing evidence that the man is the father of the child, the court shall order support in accordance with the provisions of this chapter section.
(b) The court shall give full faith and credit to a determination of paternity made by any other state, whether established through voluntary acknowledgement or through administration or judicial process.
(c) Notwithstanding any provision of this code to the contrary, the court shall order the following relief in the initial child support order following a voluntary acknowledgement or judicial determination of paternity:
(1) The court shall order child support prospectively from the date of entry of judgment in accordance with the provisions of article two of this chapter. The court shall order child support, plus simple interest thereon, retroactive from the date of the filing of the complaint, petition or voluntary acknowledgement and up to the date of the entry of the initial support order in accordance with the provisions of article two of this chapter. Child support may not be awarded in a paternity case for any period prior to the filing of the complaint, petition or acknowledgement;
(2) Irrespective of which parent is awarded custody of the child, the court shall award the mother that percentage of primary child support attributed to the father as determined by the child support guidelines of the birth costs actually paid by the mother, except that if the child has attained the age of three years at the time of the filing of the complaint or proceeding to establish the initial child support order if such obligation arises from the voluntary acknowledgment of the father, no birth costs shall be assessed against the father.
(d) Notwithstanding any provision of this code to the contrary, the court may order the following relief in the initial child support order following a judicial determination of paternity or voluntary acknowledgement:
(1) The court may require the father to pay court costs, except that if the father admitted paternity through voluntary acknowledgement or his answer to the complaint or petition, the court may not require the father to pay more than one half of court costs;
(2) The court may award reasonable attorney's fees to the prevailing party in cases where both the mother and father are represented by private counsel. The court may not award attorney's fees when: (A) The mother does not expend any funds for counsel; or (B) where the father admits paternity in the answer to the petition or complaint or voluntarily acknowledges paternity;
(3) Subject to the limitations contained in section fifteen, article five, chapter forty-eight-a of this code, the court may, after paternity is established, order the noncustodial parent to procure and maintain hospitalization and health care insurance for the child;
(4) Nothing contained herein shall be construed to prevent any party from seeking a modification of any child support or custody order after the court's initial support order following a judicial determination of paternity or voluntary acknowledgement, except that the court may not modify its initial child support order with respect to the payment of retroactive child support, court costs, birth costs or attorney's fees.
§48A-6-6. Establishing paternity by acknowledgement of natural father; grounds and procedure for revocation of same; contents of acknowledgement form.

(a) The natural father of a child may: (1) Before the birth of the child or after the birth of child, but no later than the filing of the certificate of birth in accordance with section twelve, article five, chapter sixteen of this code, may sign a written statement acknowledging himself as the father of the named child legally establishing himself as the father of the child for all purposes and child support can be established under the provisions of this chapter; or (2) anytime after the filing of certificate of birth, file, in the county where the natural father resides, the child resides, or the child was born, file an application to establish paternity in circuit court when he acknowledges that the child is his or when he has married the mother of the child after the child's birth and upon consent of the mother, or if she is deceased or incompetent, or has surrendered custody, upon the consent of the person or agency having custody of the child or of a court having jurisdiction over the child's custody. The application may be filed in the county where the natural father resides, the child resides, or the child was born. The circuit court, if satisfied that the applicant is the natural father and that establishment of the relationship is for the best interest of the child, shall enter the finding of fact and an order upon its docket, and thereafter the child is the child of the applicant, as though born to him in lawful wedlock.
(b) A written acknowledgement by both the man and woman that the man is the father of the named child legally establishes the man as the father of the child for all purposes and child support can be established under the provisions of this chapter. The acknowledgement is not valid and may not serve as a basis for the entry of a child support order unless: (1) It is signed by the father and the mother in the presence of two witnesses, who shall also sign the acknowledgement; (2) their signatures are authenticated by a notary public; (3) it affirmatively states the parties acknowledging themselves as the parents of the child, bear equal responsibility for raising the child, including providing financial support; (4) it states that each party may petition a court of competent jurisdiction for the establishment or modification of child custody, child support and other issues relating to the welfare of the child; and (5) shall include filing instructions and lines for the parents' social security numbers and addresses. Any person who signs the acknowledgement and is under the age of eighteen must have a cosigner who is his or her parent or legal guardian.
(c) The surname for the child shall be entered on the birth certificate as the surname of the natural father, the surname of the natural mother or as a hyphenated combination of the two surnames: Provided, That if the child is to be adopted, then the surname of the adoptive parent or parents may be entered on the birth certificate.
(c) On and after the first day of November, one thousand nine hundred ninety, in addition to providing the information necessary to establish paternity in accordance with the provisions of this section, a person whose name is to appear in the order establishing paternity as a parent shall furnish to the clerk of the circuit court the social security account number (or numbers, if the parent has more than one such number) issued to the parent. A record of the social security number or numbers shall be forwarded to the state registrar of vital statistics along with the order establishing paternity.
(d) The original written acknowledgement shall be filed with the state registrar of vital statistics. A copy of the acknowledgement shall be filed with the child advocate office. Both parents shall be provided copies of the acknowledgement.
(e) When the state registrar of vital statistics receives the original and one copy of the completed acknowledgement from a hospital, pursuant to section thirteen, article five-b, chapter sixteen of this code, the registrar shall forward the copy of the acknowledgement to the child advocate office.
(f) The father or mother may institute a civil action to revoke a voluntary acknowledgement, by verified complaint, in the circuit court of the county where the child resides: Provided, That if such venue creates a hardship for the parties, or either of them, or if judicial economy requires, the court may transfer the action to the county where either of the parties resides. A voluntary acknowledgement shall be revoked if the party seeking revocation proves, by clear and convincing evidence: (1) That, the acknowledgment was obtained by fraud or duress; or (2) that the contents of the voluntary acknowledgement form signed by the party does not comply with the requirements of this section: Provided, however, That a complaint to revoke a voluntary acknowledgement based upon the inadequacy of the contents of the voluntary acknowledgement form must be brought within one year after the execution of such form.