H. B. 2766
(By Delegates Trump, Riggs, Amores, Faircloth and Staton)
[Introduced February 24, 1995; referred to the
Committee on the Judiciary then Finance.]
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 up to one half of the
birth costs actually paid by the mother, except that if the child
has attained the age of three years, 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) 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.
(c) 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.
(d) 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.
(e) 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, notwithstanding the terms of the consent or relinquishment, the
consent or relinquishment 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.
NOTE: The purpose of this bill is to implement the
requirements of section 13721 of the Omnibus Budget
Reconciliation Act of 1993, which relate to the expeditious
establishment of paternity and includes the creation of a
hospital-based paternity program wherein unmarried birth mothers
and alleged fathers, if present at the birthing hospital, are
provided, prior to discharge, information and the opportunity to
voluntarily acknowledge paternity. The bill also codifies and
amends the relief which a court shall or may order when paternity
is established and provides a procedure and grounds for revoking
voluntary acknowledgements of paternity in certain circumstances.
§16-5B-13 is new; therefore, strike-throughs and
underscoring have been omitted.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.