Senate Bill No. 153
(By Senators Grubb and Yoder)
[Introduced January 23, 1995; referred to the
Committee on Health and Human Resources; and then
to the Committee on the Judiciary.]
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
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
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
(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
(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
(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
(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
(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
(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
(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
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
§48A-6-4. Establishment of paternity and duty of
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
(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
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