Chapter 26-3 PATERNITY AND GENETIC TESTING

CHAPTER 26-3
PATERNITY AND GENETIC TESTING

26-3-1 General.

(A) Applicability. This Chapter governs the establishment of parentage for a minor child as defined herein.

(B) Authority. The adjudicating court is authorized to adjudicate parentage under this Title.

(C) Adjudication of Parent-Child Relationship. The adjudicating court shall apply the laws of the Nation to adjudicate the parent-child relationship. The applicable laws do not depend on:

(1) The place of birth of the child, or

(2) The past or present residence of the child.

26-3-2 No Effect on Tribal Enrollment.

Determination of paternity under this Chapter has no effect on tribal enrollment or membership.

26-3-3 Parent-Child Relationship.

(A) The mother-child relationship is established between a woman and a child by:

(1) The woman’s having given birth to the child;

(2) Adoption of the child by the woman; or

(3) As otherwise provided by law.

(B) The father-child relationship is established between a man and a child by:

(1) An unrebutted presumption of the man’s paternity of the child under Section 26-3-5 herein;

(2) An effective acknowledgment of paternity by the man in accordance with this Code, unless the acknowledgment has been rescinded or successfully challenged;

(3) An adjudication of the man’s paternity;

(4) Adoption of the child by the man; or

(5) As otherwise provided by law.

26-3-4 Rights Valid until Terminated.

Unless parental rights are terminated, a parent-child relationship established under this Title applies for all purposes, except as otherwise specifically provided by other law of the Nation.

26-3-5 Presumption of Paternity – Marriage.

(A) A man is presumed to be the father of a child if:

(1) He and the mother of the child are married to each other and the child is born during this marriage;

(2) He and the mother of the child were married to each other and the child is born within three hundred (300) days after the termination of the marriage by death, annulment, declaration of invalidity, divorce or dissolution of marriage, or decree of separation is entered by the court;

(3) Before the birth of the child, he and the mother of the child married each other in apparent compliance with the law, even if the attempted marriage is or could be declared invalid, and the child is born during the invalid marriage or within three hundred (300) days after its termination by death, annulment, declaration of invalidity, divorce or dissolution of marriage, or decree of separation is entered by the court;

(4) After the birth of the child, he and the mother of the child married each other in apparent compliance with law, whether or not the marriage is or could be declared invalid, and he voluntarily asserted his paternity of the child, and:

(a) The assertion is on record filed with the state agency maintaining birth records;

(b) He agreed to be and is named as the child’s father on the child’s birth certificate; or

(B) A presumption of paternity established under this Code may be rebutted only by an adjudication of paternity.

26-3-6 No Discrimination Based on Marital Status.

A child born to parents who are not married to each other has the same rights under this Title as a child born to parents who are married.

26-3-7 Voluntary Acknowledgment of Paternity.

(A) A man claiming to be the genetic father of the child may sign, together with the mother of the child, an acknowledgment of paternity with the intent to establish the man’s paternity.

(B) An acknowledgment of paternity must:

(1) Be in a record (oral or written);

(2) Be signed, or otherwise authenticated, under penalty of perjury by the mother and by the man seeking to establish paternity;

(3) State that the child whose paternity is being acknowledged:

(a) Does not have a presumed father, or has a presumed father whose full name is stated; and

(b) Does not have another acknowledged or adjudicated father;

(4) State whether there has been genetic testing and, if so, that the acknowledging man’s claim of paternity is consistent with the results of the testing; and

(5) State that the signatories understand that the acknowledgment is the equivalent of a judicial adjudication of paternity of the child; and that a challenge to the acknowledgment is permitted only under limited circumstances and is barred after two (2) years.

(1) States that another man is a presumed father, unless a denial of paternity signed or otherwise authenticated by the presumed father is filed with the state agency maintaining birth records;

(2) States that another man is an acknowledged or adjudicated father; or

(3) Falsely denies the existence of the presumed, acknowledged or adjudicated father of the child.

(D) A presumed father may sign or otherwise authenticate an acknowledgment of paternity.

(E) Except as otherwise provided in this Title, a valid acknowledgment of paternity filed with the state agency maintaining birth records is equivalent to an adjudication of paternity of a child and confers upon the acknowledged father all of the rights and duties of a parent.

26-3-8 Denial of Paternity.

(A) A presumed father may sign a denial of his paternity. The denial is valid only if:

(1) An acknowledgment of paternity signed, or otherwise authenticated, by another man is filed pursuant to this Code;

(2) The denial is in a record, and is signed, or otherwise authenticated, under penalty of perjury; and

(3) The presumed father has not previously:

(a) Acknowledged his paternity, unless the previous acknowledgment has been rescinded, or successfully challenged pursuant to this Code; or

(b) Been adjudicated to be the father of the child.

(4) The denial is signed not later than two (2) years after the birth of the child.

(B) Except as otherwise provided in this Code, a valid denial of paternity by a presumed father filed with the state agency maintaining birth records in conjunction with a valid acknowledgment of paternity is equivalent to an adjudication of the non-paternity of the presumed father and discharges the presumed father from all rights and duties of a parent.

26-3-9 Rules for Acknowledgment and Denial of Paternity.

(A) An acknowledgment of paternity and a denial of paternity may be filed separately or simultaneously. If the acknowledgment and denial are both necessary, neither is valid until both are filed.

(B) An acknowledgment of paternity or denial of paternity may be signed before the birth of the child.

(C) Subject to Subsection “A” of this Section, an acknowledgment or denial of paternity takes effect on the birth date of the child or the filing of the document with the state agency maintaining birth records, whichever occurs later.

(D) An acknowledgment of paternity or denial of paternity signed by a minor is valid if it is otherwise in compliance with this Title.

26-3-10 Proceedings for Rescission, Rescission by Minor.

(A) A signatory may rescind an acknowledgment of paternity or denial of paternity by commencing a proceeding to rescind before the earlier of:

(1) Sixty (60) days after the effective date of the acknowledgment or denial; or

(2) The date of the first hearing, in a proceeding to which the signatory is a party, before a court to adjudicate an issue relating to the child, including a proceeding that establishes support.

(B) A signatory who was a minor at the time of execution of the acknowledgment may rescind an acknowledgment of paternity within sixty (60) days of reaching the age of eighteen (18).

26-3-11 Challenges after Expiration of Period for Rescission.

(A) After the period for rescission under Section 26-3-10 of this Chapter has expired, a signatory of an acknowledgment of paternity or denial of paternity may commence a proceeding to challenge the acknowledgment or denial only:

(1) On the basis of fraud, duress or material mistake of fact; and

(2) Within two (2) years after the acknowledgment or denial is filed with the state agency maintaining the birth records.

(B) A party challenging an acknowledgment of paternity or denial of paternity has the burden of proof.

26-3-12 Procedures for Rescission or Challenge.

(A) Every signatory to an acknowledgment and any related denial of paternity must be made a party to a proceeding to rescind or challenge the acknowledgment or denial.

(B) For the purpose of a rescission of, or challenge to, an acknowledgment of paternity or denial of paternity, a signatory submits to personal jurisdiction of the adjudicating court by signing the acknowledgment or denial effective upon the filing of the document with the state agency maintaining birth records.

(C) Except for good cause, during the pendency of a proceeding to rescind or challenge an acknowledgment of paternity or denial of paternity, the court may not suspend the legal responsibilities of a signatory arising from the acknowledgment, including the duty to pay child support.

(D) A proceeding to rescind or to challenge an acknowledgment of paternity or denial of paternity must be conducted in the same manner as a proceeding to adjudicate parentage under this Chapter.

(E) At the conclusion of a proceeding to challenge an acknowledgment of paternity or denial of paternity, the court shall order the state agency maintaining birth records to amend the birth record of the child, if appropriate.

26-3-13 Ratification Barred.

A court or administrative agency conducting a judicial or administrative proceeding is not required or permitted to ratify an unchallenged acknowledgment of paternity.

26-3-14 Full Faith and Credit.

Full faith and credit shall be given to an acknowledgment of paternity or denial of paternity effective in another tribe or state if the acknowledgment or denial has been signed and is otherwise in compliance with the law of the other tribe or state.

26-3-15 Exceptions to the Establishment of Paternity.

The CSS is not required to establish paternity in any case involving incest or forcible rape, or in any case in which legal proceedings for adoption are pending, if it would not be in the best interest of the child to establish paternity.

SUBCHAPTER

GENETIC TESTING

26-3-16 General.

(A) This subchapter governs genetic testing of an individual to determine parentage, whether the individual is:

(1) voluntarily submitting to testing, or

(2) is tested pursuant to an order of the court.

(B) Traditional and customary objections to blood testing and/or DNA testing shall not be a basis for refusal to undergo such testing.

26-3-17 Order for Testing.

(A) Except as otherwise provided, the court shall order the child and other designated individuals to submit to genetic testing if the request for testing is supported by a sworn statement by the party to the proceeding:

(1) Alleging paternity, and stating facts establishing a reasonable possibility of the requisite sexual contact between the parties; or

(2) Denying paternity and stating facts establishing a possibility that sexual contact between the individuals, if any, did not result in the conception of the child.

(B) The CSS may require genetic testing only if there is no presumed, acknowledged or adjudicated father, unless for good cause shown, the CSS believes genetic testing is in the best interests of the minor child.

(C) If two (2) or more men are subject to court-ordered genetic testing, the testing may be ordered concurrently or sequentially.

(D) If a request for genetic testing of a child is made before the birth of the child, the court shall not order in utero testing, nor shall CSS require in utero testing.

26-3-18 Requirements for Genetic Testing.

(A) Genetic testing shall be of a type relied upon by experts in the field of genetic testing and performed in a testing laboratory accredited by:

(1) The American Association of Blood Banks, or a successor to its functions;

(2) The American Society for Histocompatibility and Immunogenetics, or a successor to its functions; or

(3) An accrediting body designated by the federal Secretary of Health and Human Services.

(B) A specimen used in genetic testing may consist of one or more samples, or a combination of samples of blood, buccal cells, bone, hair or other body tissue or fluid. The specimen used in the testing need not be of the same kind for each individual undergoing genetic testing.

(C) Based on the ethnic or racial group of an individual, the testing laboratory shall determine the databases from which to select frequencies for use in calculation of the probability of paternity. If there is disagreement as to the testing laboratory’s choice, the following rules apply:

(1) The individual objecting may require the testing laboratory, within thirty (30) days after receipt of the report of the test, to recalculate the probability of paternity using an ethnic or racial group different from that used by the laboratory.

(2) The individual objecting to the testing laboratory’s initial choice shall:

(a) if the frequencies are not available to the testing laboratory for the ethnic or racial group requested, provide the requested frequencies compiled in a manner recognized by accrediting bodies; or

(b) engage another testing laboratory to perform the calculations.

(3) The testing laboratory may use its own statistical estimate if there is a question regarding which ethnic or racial group is appropriate. If available, the testing laboratory shall calculate the frequencies using statistics for any other ethnic or racial group requested.

(D) If, after recalculation using a different ethnic or racial group, genetic testing does not conclusively identify a man as the father of a child, an individual who has been tested may be required to submit to additional genetic testing.

26-3-19 Report of Genetic Testing, Chain of Custody.

(A) A report of genetic testing shall be in a record and signed under penalty of perjury by a designee of the testing laboratory. A report made under the requirements of this Section is self-authenticating.

(B) Documentation from the testing laboratory of the following information is sufficient to establish a reliable chain of custody that allows the results of genetic testing to be admissible without testimony:

(1) The names and photographs of the individuals whose specimens have been taken;

(2) The names of the individuals who collected the specimens;

(3) The places and dates the specimens were collected;

(4) The names of the individuals who received the specimens in the testing laboratory, and

(5) The dates the specimens were received.

26-3-20 Genetic Testing Results, Rebuttal.

(A) A man is, by a rebuttable presumption, identified as the father of a child if the genetic testing complies with this Chapter and the results disclose that the man has:

(1) At least a ninety-nine (99) percent probability of paternity, using a prior probability of 0.50, as calculated by using the combined paternity index obtained in the testing; and

(2) A combined paternity index of at least 100 to 1.

(B) A man identified under subsection A of this Section to be the father of the child may rebut the genetic testing results only by other genetic testing satisfying the requirements of this Chapter which:

(1) Excludes the man as a genetic father of the child; or

(2) Identifies another man as the possible father of the child.

(C) Except as otherwise provided herein, if more than one man is identified by genetic testing as the possible father of the child, the court shall order them to submit to further

26-3-21 Costs of Genetic Testing.

(A) The costs of the initial genetic testing must be advanced:

(1) By CSS when CSS is providing services;

(2) By the individual who made the request;

(3) As agreed by the parties; or

(4) As ordered by the court.

(B) When the cost is advanced by CSS, CSS may seek reimbursement from the man who is, by a rebuttable presumption, identified as the father.

26-3-22 Additional Genetic Testing.

The court may order, or CSS may request, additional genetic testing upon the request of the party who contests the result of the original testing. If the previous genetic testing identified a man as the father of the child, the court may not order additional testing unless the party challenging the test provides advance payment for the testing.

26-3-23 Genetic Testing When Specimen is Not Available.

(A) Subject to subsection B of this Section, if a genetic-testing specimen is not available from a man who may be the father of a child, for good cause and under circumstances the court considers to be just, the court may order the following individuals to submit specimens for genetic testing:

(1) The parents of the man;

(2) Brothers and sisters of the man;

(3) Other children of the man and their mothers;

(4) Other relatives of the man necessary to complete genetic testing; and

(5) Any other custodians of genetic material.

(B) Issuance of a court order under this Section requires a finding that the need for genetic testing outweighs the legitimate interests of the individual sought to be tested.

26-3-24 Identical Brothers, Non-Genetic Evidence to Determine Father.

(A) The court may order genetic testing of a brother of a man identified as the father of a child if the man is commonly believed to have an identical brother and evidence suggests that the brother may be the genetic father of the child.

(B) If each brother satisfies the requirements as the identified father of the child under this Section, without consideration of another identical brother being identified as the father of the child, the court may rely on non-genetic evidence to adjudicate which brother is the father of the child.

26-3-25 Release of Report of Genetic Testing.

Release of a genetic testing report for parentage is pursuant to policy and procedure promulgated by the CSS.

SUBCHAPTER

PROCEEDINGS TO ADJUDICATE PARENTAGE

26-3-26 Civil Proceeding to Adjudicate Parentage.

A civil procedure may be maintained to adjudicate parentage of a child. The proceeding is governed by Title 4 of this Code, unless otherwise specified herein.

26-3-27 Standing to Maintain Proceeding.

Except as otherwise stated a proceeding to adjudicate parentage may be maintained by:

(1) The child;

(2) The mother of the child;

(3) A man whose paternity of the child is to be adjudicated;

(4) The CSS; or

(5) A representative authorized by law to act for an individual who would otherwise be entitled to maintain a proceeding but who is deceased, incapacitated or a minor.

26-3-28 Parties to Proceeding.

The following individuals must be joined as parties in a proceeding to adjudicate parentage:

(1) The mother of the child; and

(2) A man whose paternity of the child is to be adjudicated.

26-3-29 No Limitation: Child Having No Presumed, Acknowledged or Adjudicated Father.

An adjudication proceeding to determine the parentage of a child having no presumed, acknowledged or adjudicated father may be commenced at any time, even after:

(1) The child becomes an adult, but only if the child initiates the proceeding; or

(2) An earlier proceeding to adjudicate paternity has been dismissed based upon the application of a statute of limitation then in effect.

26-3-30 Limitation: Child Having Presumed Father.

(A) Except as otherwise provided in subsection B of this Section, a proceeding brought by a presumed father, the mother or another individual to adjudicate the parentage of a child having a presumed father must be commenced not later than two (2) years after the birth of the child.

(B) A proceeding seeking to disprove the father-child relationship between a child and the child’s presumed father may be maintained at any time if the court determines that:

(1) The presumed father and the mother of the child neither cohabited nor engaged in sexual intercourse with each other during the probable time of conception; and

(2) The presumed father never openly held out the child as his own.

(C) A proceeding seeking to disprove the father-child relationship between a child and the child’s presumed or acknowledged father may be maintained at any time if the court determines the biological father, or the presumed or acknowledged father, and the mother agree to adjudicate the biological father’s parentage.

(1) If the presumed or acknowledged father or mother is unavailable, the court may proceed if it is determined that diligent efforts have been made to locate the unavailable party and it would not be prejudicial to the best interest of the child to proceed without that party.

(2) In a proceeding under this Section, the court shall enter an order either confirming the existing father-child relationship or adjudicating the biological father as the parent of the child. A final order under this Section shall not leave the child without an acknowledged or adjudicated father.

26-3-31 Authority to Deny Motion for Genetic Testing, Factors to Consider.

(A) In a proceeding to adjudicate the parentage of a child having a presumed father or to challenge the paternity of a child having an acknowledged father, the court may deny a motion seeking an order for genetic testing of the mother, the child and the presumed or acknowledged father if the court determines that:

(1) The conduct of the mother or the presumed or acknowledged father estops that party from denying parentage; and

(2) It would be inequitable or otherwise against the best interests of the minor child to disprove the father-child relationship between the child and the presumed or acknowledged father.

(B) In determining whether to deny a motion seeking an order for genetic testing under this Section, the court shall consider the best interest of the child, including the following factors:

(1) The length of time between the date of the parentage adjudication proceeding and the date of notification to the presumed or acknowledged father that he may not be the genetic father;

(2) The length of time the presumed or acknowledged father assumed the role of father of the child;

(3) The facts surrounding the presumed or acknowledged father’s discovery of his possible non-paternity;

(4) The nature of the relationship between the child and the presumed or acknowledged father;

(5) The age of the child;

(6) The harm that may result to the child if presumed or acknowledged paternity is successfully disproved;

(7) The nature of the relationship between the child and any alleged father;

(8) The extent to which the passage of time reduces the chances of establishing the paternity of another man and a child-support obligation in favor of the child; and

(9) Other factors that may result from a disruption of the father-child relationship or the chance of harm to the child.

(C) In a proceeding involving the application of this Section, a minor or incapacitated child shall be represented by a guardian ad litem.

(D) If the court denies a motion seeking an order for genetic testing, it shall issue an order adjudicating the presumed or acknowledged father to be the father of the child.

26-3-32 Limitation: Child Having Acknowledged or Adjudicated Father.

(A) When a child has an acknowledged father, a signatory to the acknowledgment of paternity or denial of paternity may commence a proceeding to rescind the acknowledgment or denial or to challenge the paternity of the child but only within the time allowed under Section 26-3-10 or Section 26-3-11 of this Title.

(B) When a child has an acknowledged or adjudicated father and an individual, other than the child, seeks an adjudication of paternity of the child and who is neither a signatory to the acknowledgment of paternity nor a party to the adjudication the individual shall commence proceedings not later than two (2) years after the date of acknowledgment or adjudication.

26-3-33 Joinder of Proceedings.

Except as otherwise provided, a proceeding to adjudicate parentage may be joined with a proceeding for adoption, termination of parental rights, child custody or visitation, child support, divorce, annulment, legal separation or separate maintenance, probate or administration of an estate or other appropriate proceedings.

26-3-34 Commencement of Proceeding.

A proceeding to determine parentage may be commenced after the birth of the child.

26-3-35 Child as Party: Representation.

(A) A minor child is a permissible party, but is not a necessary party to a proceeding under this Chapter.

(B) The court shall appoint a guardian ad litem to represent a child if the child is a party or if the court determines that the interests of the child are not adequately represented.

26-3-36 Admissibility of Results of Genetic Testing.

(A) Except as otherwise provided in subsection C of this Section, a record of a genetic testing expert is admissible as evidence of the truth of the facts asserted in the report unless a party objects to its admission within fourteen (14) days after its receipt by the objecting party and cites specific grounds for exclusion. The admissibility of the report is not affected by whether the testing was performed:

(1) Voluntarily, pursuant to an order of the court or as requested by the CSS; or

(2) Before or after the commencement of the proceeding.

(B) A party objecting to the results of genetic testing may call one or more genetic-testing experts to testify in person or by telephone, videoconference, deposition or another method approved by the court. Unless otherwise ordered by the court, the party offering the testimony bears the expense for the expert testifying.

(C) If a child has a presumed, acknowledged or adjudicated father, the results of genetic testing are inadmissible to adjudicate parentage unless performed pursuant to an order of a Court of competent jurisdiction.

26-3-37 Consequences of Declining Genetic Testing.

(A) An order for genetic testing is enforceable by contempt.

(B) If an individual whose paternity is being determined declines to submit to a court order for genetic testing, the court may adjudicate parentage contrary to the position of that individual, provided the following conditions are met:

(1) The court finds, by clear and convincing evidence, the individual is more likely than not to be the parent of the child; and

(2) The adjudication is not contrary to the best interests of the child.

(C) Genetic testing of the mother of a child is not a condition precedent to testing the child and a man whose paternity is being determined. If the mother is unavailable or declines to submit to genetic testing, the court may order the testing of the child and every man whose paternity is being adjudicated.

26-3-38 Admission of Paternity Authorized.

(A) A respondent in a proceeding to adjudicate parentage may admit to the paternity of a child by filing a pleading to that effect or by admitting paternity under penalty of perjury in an affidavit filed in the case, or by sworn testimony before the presiding court.

(B) If the court finds that the admission of paternity satisfies the requirements of this Section and finds that there is no reason to question the admission, the court shall issue an order adjudicating the child to be the child of the man admitting paternity.

SUBCHAPTER

SPECIAL RULES FOR PROCEEDING TO ADJUDICATE PARENTAGE

26-3-39 Rules for Adjudication of Paternity.

(A) The court shall apply the following rules to adjudicate the paternity of a child:

(1) The paternity of a child having a presumed, acknowledged or adjudicated father may be disproved only by admissible results of genetic testing excluding that man as the father of the child or identifying another man as the father of the child.

(2) Unless the results of genetic testing are admitted to rebut other results of genetic testing, a man identified as the father of a child under Section 26-3-21 of this Title must be adjudicated the father of the child.

(3) If the court finds that genetic testing under Section 26-3-21 neither identifies nor excludes a man as the father of a child, the court may not dismiss the proceeding. In that event, the results of genetic testing, and other evidence, are admissible to adjudicate the issue of paternity.

(4) Unless the results of genetic testing are admitted to rebut other results of genetic testing, a man excluded as the father of a child by genetic testing shall not be adjudicated to be the father of the child.

26-3-40 Court Shall Adjudicate.

The court, without a jury, shall adjudicate paternity of a child.

26-3-41 Hearings, Records, Reports, Public Record.

(A) Upon the request of a party and for good cause shown, the court may close a proceeding under this Chapter.

(B) A final order in a proceeding under this Chapter is available for public inspection. Other records, reports and papers are available only with the consent of the parties or an order of the court for good cause.

26-3-42 Default Order.

(A) The court may issue an order adjudicating the paternity of a man who:

(1) After service of process, is in default; and

(2) Is found by the court to be the father of a child by clear and convincing evidence.

(B) All orders issued under this Section shall be in writing and shall include the following provision: “Paternity in this matter was adjudicated by default. This order shall not be used when determining eligibility for tribal membership.”

26-3-43 Dismissal Only Without Prejudice.

The court may dismiss a proceeding under this Chapter for want of prosecution only without prejudice. An order of dismissal for want of prosecution purportedly with prejudice is void and has only the effect of a dismissal without prejudice.

26-3-44 Order Adjudicating Parentage.

(A) The court shall issue an order adjudicating whether a man alleged or claiming to be the father is the parent of the child.

(B) An order adjudicating parentage must identify the child by name and date of birth.

(C) Except as otherwise provided in subsection D of this Section, the court may assess filing fees, reasonable attorney’s fees, fees for genetic testing and other costs, including necessary travel and other reasonable expenses incurred in a proceeding under this subchapter.

(D) The court may not assess fees, costs or expenses against any Title IV-D support-enforcement agency of this tribe or another tribe or state, except as provided by other law.

(E) On request of a party and for good cause shown, the court may order that the name of the child be changed.

(F) If the order of the court is at variance with the child’s birth certificate, the court shall order the state agency maintaining birth records to issue an amended birth registration.