H. B. 2107
(By Delegate Azinger)
[Introduced February 11, 2009; referred to the
Committee on the Judiciary.]
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new section, designated §48-18-105a, relating
to providing a method in which males may contest allegations
or presumptions of biological parentage under certain
circumstances.
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 section, designated §48-18-105a, to read as
follows:
ARTICLE 18. BUREAU FOR CHILD SUPPORT ENFORCEMENT.
§48-18-105a. Procedure for contesting paternity.
(a) In any action in which a male is required to pay child
support as the father of a child, a motion to set aside a
determination of paternity may be made at any time upon the grounds
set forth in this section. The motion shall be filed in the family court in which the matter is pending and shall include:
(1) An affidavit executed by the movant that newly discovered
evidence has come to the movant's knowledge since entry of
judgment; and
(2) The results from scientifically credible parentage-
determination genetic testing, administered within ninety days
prior to the filing of the motion demonstrates there is zero
percent probability that the male ordered to pay child support is
the father of the child for whom support is required.
(b) The court shall grant relief on a motion filed in
accordance with the provisions of subsection (a) of this section
upon a finding by the court of all of the following:
(1) The genetic test demonstrating zero percent probability of
parentage was properly conducted;
(2) The male ordered to pay child support has not adopted the
child;
(3) The child was not conceived by artificial insemination
while the male ordered to pay child support and the child's mother
were in wedlock;
(4) The male ordered to pay child support did not act to
prevent the biological father of the child from asserting his
paternal rights with respect to the child; and
(5) The male ordered to pay child support with knowledge that
he is not the biological father of the child has not:
(A) Married the mother of the child and voluntarily assumed
the parental obligation and duty to pay child support;
(B) Acknowledged his paternity of the child in a sworn
statement;
(C) Been named as the child's biological father on the child's
birth certificate with his consent;
(D) Been required to support the child because of a written
voluntary promise;
(E) Received written notice from the Department of Health and
Human Resources, any other state agency, or any court directing him
to submit to genetic testing which he disregarded;
(F) Signed a voluntary acknowledgment of paternity; or
(G) Proclaimed himself to be the child's biological father.
(c) In the event a movant fails to make the requisite showing
provided in subsection (b) of this section, the court may grant the
motion or enter an order as to paternity, duty to support, custody
and visitation privileges as otherwise provided by law.
(d) In the event relief is granted pursuant to subsection (b)
of 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
rights.
(e) The duty to pay child support and other legal obligations
for the child shall not be suspended while the motion is pending except for good cause shown: Provided, That the court may order
the child support be held in the registry of the court until final
determination of paternity has been made.
(f) (1) In any action brought under the provisions of this
section, if the genetic test results submitted are provided solely
by the male ordered to pay child support, the court may, sua sponte
or on the motion of a party, order the child, the child's mother
and the male ordered to pay child support, to submit to further
genetic testing. The court shall provide that the genetic testing
be conducted no more than thirty days after the court issues its
order.
(2) If the mother of the child or the male ordered to pay
child support willfully fails to submit to genetic testing, or if
either party is the custodian of the child and willfully fails to
submit the child for testing, the court shall issue an order
determining the relief on the motion against the party so failing
to submit to genetic testing. If a party shows good cause for
failing to submit to genetic testing, the failure may not be
considered willful.
(3) The party requesting genetic testing shall pay any fees
charged for the tests. If the custodian of the child is receiving
services from an administrative agency in its role as an agency
providing enforcement of child support orders, the agency shall pay
the cost of genetic testing if it requests the test and may seek reimbursement for the fees from the person against whom the court
assesses the costs of the action.
(g) If relief on a motion filed under the provisions of this
section is not granted, the court shall assess the costs of the
action and attorney's fees against the movant.
(h) Any male alleged or presumed to be the biological father
of a child shall be entitled, at his own expense, to a mandatory
genetic test which includes the DNA of himself, the mother of the
child and the child. In the event the test proves unequivocally he
is not the biological father of the child and that the mother's
statement of biological paternity, provided in subsection (i) of
this section, is false, he shall be entitled to reimbursement of
the costs of the genetic testing from the mother. In the event the
alleged or presumed biological father, the mother or the child are
deceased, then genetic testing may be completed by other available
methods and means.
(i) Any mother alleging a male to be the biological father of
a child shall be required to submit a sworn paternity statement
stating the following:
(1) Whether the accused male is the only male she had sexual
relations with during the sixty days surrounding the date of
conception, including the thirty days before and the thirty days
after the date of conception;
(2) An acknowledgment of her claim being under oath and subject to a criminal charge of perjury if false; and
(3) An acknowledgment that a genetic paternity test is
required to confirm paternity.
NOTE: The purpose of this bill is to provide a method in which
males may contest allegations or presumptions of biological
parentage under certain circumstances.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.