Senate Bill No. 547
(By Senator Boley)
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[Introduced February 16, 1999;
referred to the Committee on the Judiciary.]
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A BILL to amend and reenact sections two, three and four, article
six, chapter forty-eight-a of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, all relating
to prohibiting retroactive child support when paternity has
not been established within one year of the child's birth;
expenses for establishment of paternity under certain
circumstances; and requiring applications for establishment
of paternity to be acted upon within sixty days.
Be it enacted by the Legislature of West Virginia:
That sections two, three and four, article six, chapter
forty-eight-a of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, be amended and reenacted, all to
read as follows:
ARTICLE 6. ESTABLISHMENT OF PATERNITY.
§48A-6-2. Statute of limitations; prior statute of limitations
not a bar to action under this article; effect of
prior adjudication between husband and wife.
(a) Except for a proceeding brought by a child in his or her
own right under the provisions of subdivision (7), subsection
(e), section one of this article, a proceeding for the
establishment of the paternity of a child shall be brought prior
to such child's eighteenth birthday: Provided That, if a
proceeding to establish the paternity of the child is not brought
by the child's first birthday, then retroactive child support may
not be awarded by the court. Provided, however, in such
instances, the court will award current and future child support
only.
(b) A proceeding to establish paternity under the provisions
of this article may be brought by or on behalf of a child
notwithstanding the fact that, prior to the effective date of
this section, an action to establish paternity may have been
barred by a prior statute of limitations set forth in this code
or otherwise provided for by law.
(c) A proceeding to establish paternity under the provisions
of this article may be brought for any child who was not yet
eighteen years of age on the sixteenth day of August, one
thousand nine hundred eighty-four, regardless of the current age.
(d) A proceeding to establish paternity under the provisions
of this article may be brought for any child who was not yet
eighteen years of age on the sixteenth day of August, one
thousand nine hundred eighty-four, and for whom a paternity
action was brought but dismissed because a statute of limitations
of less than eighteen years was then in effect.
(e) Any other provision of law to the contrary
notwithstanding, when a husband and wife or former husband and
wife, in an action for divorce or an action to obtain a support
order, have litigated the issue of the paternity of a child
conceived during their marriage to the end that the husband has
been adjudged not to be the father of such the child, such prior
adjudication of the issue of paternity between the husband and
the wife shall does not preclude the mother of such the child
from bringing a proceeding against another person to establish
paternity under the provisions of this article.
§48A-6-3. Medical testing procedures to aid in the determination
of paternity.
(a) Prior to the commencement of an action for the
establishment of paternity, the child support enforcement
division may order the mother, her child and the man to submit to
genetic tests to aid in proving or disproving paternity. The
division may order the tests upon the request of a party,
supported by a sworn statement. If the request is made by a
party alleging paternity, the statement shall set forth facts
establishing a reasonable possibility of requisite sexual contact
between the parties. If the request is made by a party denying
paternity, the statement may set forth facts establishing a
reasonable possibility of the nonexistence of sexual contact
between the parties or other facts supporting a denial of
paternity. If genetic testing is not performed pursuant to an
order of the child support enforcement division, the court may,
on its own motion, or shall upon the motion of any party, order
such tests. A request or motion may be made upon ten days'
written notice to the mother and alleged father, without the
necessity of filing a complaint. When the tests are ordered,
the court or the division 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 an expert qualified as an examiner of genetic markers shall
analyze, interpret and report on the results to the court or to
the division of child support enforcement. Any tests ordered
pursuant to this section shall be acted upon within sixty days of
the date of the order. The results shall be considered 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, if a complaint has been
filed, 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, 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) When a party desires to challenge the results of the
blood or tissue tests or the expert's analysis of inherited
characteristics, he or she shall file a written protest with the
family law master or circuit court or with the division of child
support enforcement, if appropriate, within thirty days of the
filing of such test results, and serve a copy of such protest
upon the other party. The written protest shall be filed at
least thirty days prior to any hearing involving the test
results. The court or the child support enforcement division,
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 the order, at the expense of the
party requesting additional testing. Costs shall be paid in
advance of the testing. When 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 the results are
admissible evidence which is clear and convincing evidence of
paternity. The admission of the evidence creates a presumption
that the man tested is the father.
(b) Documentation of the chain of custody of the blood or
tissue specimens is competent evidence to establish 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 the tests shall be paid by the
parties in proportions and at times determined by the court.
(c) Except as provided in subsection (d) of this section,
when a blood test is ordered pursuant to this section, the moving
party shall initially bear all costs associated with the blood
test unless that party is determined by the court to be
financially unable to pay those costs. This determination shall
be made following the filing of an affidavit pursuant to section
one, article two, chapter fifty-nine of this code. When the
court finds that the moving party is unable to bear that cost,
the cost shall be borne by the state of West Virginia. Following the finding that a person is the father based on the results of
a blood test ordered pursuant to this section, the court shall
order that the father be ordered to reimburse the moving party
for the costs of the blood tests unless the court determines,
based upon the factors set forth in this section, that the father
is financially unable to pay those costs.
(d) When a blood test is ordered by the child support
enforcement division, the division shall initially bear all costs
subject to recoupment from the alleged father if paternity is
established.
§48A-6-4. Establishment of paternity and duty of support.
(a) When the defendant, by verified responsive pleading,
admits that the man is the father of the child and owes a duty of
support, or if after a hearing 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 section.
(b) Upon motion by a party, the court shall issue a
temporary order for child support pending a judicial
determination of parentage if there is clear and convincing evidence of paternity on the basis of genetic tests or other
scientifically recognized evidence.
(c) The court shall give full faith and credit to a
determination of paternity made by any other state, based on the
laws of that state, whether established through voluntary
acknowledgment or through administrative or judicial process.
(d) Bills for pregnancy, childbirth, and genetic testing are
admissible as evidence of expenses incurred. Evidence so
admitted shall constitute prima facie evidence of amounts
incurred for such services or for testing on behalf of the child.
(e) In instances where the mother has named an individual
as father on the birth certificate of the child in question, and
subsequently names another individual as father of such child,
all expenses incurred in establishing paternity shall be borne by
the mother, and no retroactive child support may be collected
from the biological father.
NOTE: The purpose of this bill is to prohibit retroactive
child support payments when paternity has not been established within one year of the child's birth; to provide for the payment
of expenses for establishment of paternity under certain
circumstances; and to require applications for establishment of
paternity to be acted upon within sixty days.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.