HB 4002 Text

Introduced Version « House Bill 4002 History

Key: Green = existing Code. Red = new code to be enacted

H. B. 4002

(By Delegate Azinger)
[Introduced January 9, 2008; 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.

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