Senate Bill No. 153

(By Senators Grubb and Yoder)

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[Introduced January 23, 1995; referred to the

Committee on Health and Human Resources; and then

to the Committee on the Judiciary.]

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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; implementing a hospital-based paternity program; 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 of said code be amended and reenacted, all to read as follows:
CHAPTER 16. PUBLIC HEALTH.

ARTICLE 5B. HOSPITALS AND SIMILAR INSTITUTIONS.

§16-5B-13. Hospital 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 birthing 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 child and of the putative father of such 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 married woman lived separate and apart from her husband preceding the birth of the child;
(B) Such married woman did not cohabit with her husband at any time during such separation and that such 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 proceeding is deemed necessary to prevent such 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 child;
(5) The guardian or committee of such child;
(6) The next friend of such child when the child is a minor;
(7) By such 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 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 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 test results and serve a copy of such protest upon the other party. The written protest must be filed at least ten 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 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 results are admissible evidence which is clear and convincing evidence of paternity. The admission of such 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 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 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.
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.
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 administrative or judicial process.
§48A-6-6. Establishing paternity by acknowledgment of natural father.

(a) The natural father of a child may 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) A written acknowledgment 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 must be signed by the man and the woman. Their signatures must be authenticated by a notary public. 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. The acknowledgement must list the rights and responsibilities of acknowledging paternity including the duty to financially support the child.
(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.
(b) The written acknowledgement shall include filing instructions and lines for the parents' social security numbers and addresses.
(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.
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 include 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.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.

Section thirteen, article five-b, chapter sixteen is new; therefore, strike-throughs and underscoring have been omitted.