ESTABLISHMENT OF PARENTAGE
CS 305P Parentage:
Adjudicated, Presumed and Declarant Fathers
04/87
Revised 09/02/25 Training Completed 09/16/25 Last Reviewed 03/30/26
Utah Code 26B-8-110, 81-5-102, 81-5-204, 81-5-301 to 311, 81-5-505, 81-5-6
CIC: Refer to procedures found in CS 1305P
CIC Parentage: Adjudicated, Presumed, and Declarant Fathers
Introduction
The Uniform
Parentage Act found in Utah Code Title 81, Chapter 5, divides possible
parentage consorts into four distinct categories based on if there is a legal
parent-child relationship and the method of establishing that relationship. The
four categories are adjudicated father, presumed father, declarant father, and
alleged father.
For each
child, you must determine if parentage is or ever was an issue because the
child was born out of wedlock, then you must evaluate each potential
consort/father to determine which category applies. The applicable category
determines if further actions are necessary to legally establish parentage and
the actions available to establish a support order. The applicable category
also determines what actions are available to the parents if they wish to
challenge parentage establishment.
Each
category is discussed individually in the sub-sections that follow. If there
were multiple consorts that fall into a variety of categories, refer to CS 308P
Multiple Consorts for additional guidance and examples to properly work through
the combined categories. Because of the legal rights and obligations associated
with some categories of each legal parent-child relationship, ORS/CSS will
pursue consorts for child support in multiple consort situations in the
following order:
1. Adjudicated father;
2. Presumed father;
3. Declarant father;
4. Alleged father(s).
Refer to the
following sections of Policy for additional information and assistance with the
procedures described in this section:
• CS
308P Multiple Consorts
• CS
315P Voluntary Declaration of Paternity by Parents
• CS
329P Parentage Disestablishment, Overview
• CS
329P-1 Parentage Disestablishment, Rescission of the “Voluntary Declaration of
Paternity”
• CS
329P-2 Parentage Disestablishment, Judicial Order Required
• CS
329P-3 Parentage Disestablishment, Amending Administrative Orders Based on
Genetic Test Results
• CS
329P-4 Parentage Disestablishment, Genetic Testing After the Order
Adjudicated
Father
Utah Code
81-5-102 defines an adjudicated father as follows:
“(1) ‘Adjudicated father’ means a man
who has been adjudicated by a tribunal to be the father
of a child.”
Utah Code 81-5-102 defines a tribunal as follows:
“(26) 'Tribunal’ means a court of law,
administrative agency, or quasi-judicial entity authorized to establish,
enforce, or modify support orders or to determine parentage.”
The following are some examples of adjudicated parentage:
1.
A divorce
decree: Utah Code 81-5-623 states when a divorce is considered to have
adjudicated parentage as follows:
“(3) In a proceeding to dissolve a marriage, the tribunal is
considered to have made an adjudication of the parentage of a child if the
question of parentage is raised and the tribunal adjudicates according to this
part and the final order:
(a) expressly identifies a child as a ‘child of the marriage,’
‘issue of the marriage,’ or similar words indicating that the husband is the
father of the child; or
(b) provides for support of the child by the husband unless
parentage is specifically disclaimed in the order.
(4) The tribunal is not considered to have made an adjudication of
the parentage of a child if the child was born at the time of entry of the
order and other children are named as children of the marriage, but that child
is specifically not named.”
NOTE
1: For orders entered on or after September 1, 2024, there is still a presumed
parent even if one child is named in the divorce decree and another child
existing at the time of the divorce is not named.
NOTE
2: If the Findings
of Fact are incorporated by reference into the divorce decree, then they are
considered part of the decree. If they are not, they still will be deemed by
the Attorney General’s Office (AGO) and by the courts as helpful information.
If you have questions about the Findings of Fact and whether they have been
incorporated by the final order, review the order with the AGO.
2.
Judicial
parentage order.
3.
Juvenile Court order: Juvenile Courts have jurisdiction to adjudicate
parentage issues and the adjudication is not affected when Juvenile Court
terminates its jurisdiction. The order must contain specific language that the
man is found to be the father of the child in order to consider that parentage
has been adjudicated. It is not enough for the man to be listed as the father
among those present at the court proceedings.
EXAMPLE
1: The Juvenile Court order states that “John Smith is found to be the
father of the child Bobby Smith born August 10,
EXAMPLE
2: The Juvenile Court order states that “The mother, Anna Smith; the
father, John Smith; the guardian ad litem Joanna Montana; and the DCFS worker,
Bob Utah were present at the hearing.” This language is not a specific
adjudication of parentage.
NOTE: Review Juvenile Court orders with
the assigned Assistant Attorney General (AAG) if parentage appears to have been
addressed in a Findings of Fact or other Juvenile Court document, but not in
the final order. If the AGO advises that the parentage has been adjudicated by
the other document, narrate the discussion and reasons parentage is considered
established.
4.
Utah
administrative order: If a Utah administrative order contains the following
language (or similar): “That (alleged father’s name) is the father of the
following child(ren) born to (mother’s name)” and then lists the child(ren) in
question, parentage has been administratively adjudicated for that child.
NOTE: In the past, CSS procedures directed agents to have willing
parents sign an Voluntary Declaration of Paternity (VDP) after they’d been
served with administrative parentage action. The administrative order that
followed the VDP may not actually contain the parentage establishment language
depending on the procedures in place when it was issued.
Any order that
adjudicates parentage creates a binding parent-child relationship until/unless
it is amended, set aside, or terminated by a subsequent order. As long as
parentage has been adjudicated in an order, do not proceed with any
establishment actions against any other type of father until the parentage
issues in the existing order have been resolved.
If an adjudicated father or the mother wishes to
contest the legally established parentage, the options available are determined
by the type of order that adjudicated parentage. In addition, consider the
following depending on the type of order involved:
1.
Utah Judicial Order: Inform the adjudicated
father and/or the mother that parentage has been adjudicated, and that
challenging a judicial parentage order is not a service provided by ORS. Even
if the adjudicated father, the mother, and an “alleged” father all signed a VDP
that was filed with the Office of Vital Records and Statistics (OVRS), the
previously existing court order governs the parentage of the child until/unless
modified. Continue to enforce the support obligation until such time as you
receive an exclusion order, or until you are ordered by the court to cease
enforcing the existing order. If you receive an exclusion order, end the
current support debt on ORSIS. Do not refund any payments that have been made
by the individual and collect the arrears that are still owed, unless the court
order states otherwise.
2.
Utah Administrative Order: If a Utah administrative
parentage order established parentage, there has been no court order
determining his parentage or registering the administrative order for
enforcement, and the adjudicated father is later excluded by CSS-facilitated or
privately-obtained genetic tests, follow the procedures for outlined in policy.
NOTE: Although a presumed father may present genetic test results
that exclude him as the biological father of a child, terminating the support
obligation for a presumed father is not the same legal situation as
“disestablishing parentage.” The situations are presented together in the
Parentage Disestablishment sections of Volume 2 only because the required
paperwork and procedures are similar.
3.
Other State Order: An order from another state must
be given full faith and credit. If the adjudicated father claims he is not the
biological father, he may attempt to pursue an action in the original tribunal
issuing the parentage order. Continue to enforce the support obligation until
such time as you receive an exclusion order, or are ordered by the court to
cease enforcing the existing order.
Utah Code 81-5-102 defines a presumed
father as follows:
“(22) ‘Presumed father’ means a man who, by operation
of law under Section 81-5-204, is recognized as the father of a child until
that status is rebutted or confirmed in accordance with this chapter.”
Utah
Code 81-5-204 explains several sets of circumstances that cause a man to
be legally presumed to be the father of a child.
1.
“(1) A man is presumed to be the father of a child if:
(a) the man and
the birth mother of the child are married to each other and the child is born
during the marriage;” (Emphasis
added)
EXAMPLE 1: A man and woman were married on
April 30, 2003 and they have not divorced. The child was born March 30, 2004.
Because the child was born during the marriage, the man is legally presumed to
be the father of the child.
EXAMPLE 2: A man and woman were married on
August 1, 2001 and divorced on September 15, 2004. The child was born on
October 8, 2002. Because the child was born between the marriage and divorce
dates, this man is a presumed father. More information would be needed to
determine if the presumption has been successfully challenged (rebutted) by any
method.
2.
“(b) the man and the birth mother of the child were
married to each other and the child is born within 300 days after the marriage is
terminated by death, annulment, declaration of invalidity, or divorce, or after
a decree of separation;” (Emphasis added)
EXAMPLE: A man and woman were married on
March 1, 2000 and divorced on December 1, 2004. The child was born on January
18, 2005. Even though the child was not born between the marriage and divorce
dates, the child was born within 300 days of the divorce decree; therefore,
this man is presumed to be the father of the child. More information would be
needed to determine if the presumption has been successfully rebutted by any
method.
3.
“(c) before the birth of the child, the man and
the birth mother of the child married each other in apparent compliance with
law, even if the attempted marriage is or could be declared invalid, and the
child is born during the invalid marriage or within 300 days after the
marriage's termination by death, annulment, declaration of invalidity, or
divorce or after a decree of separation; or. . .” (Emphasis added)
EXAMPLE
1: A man and woman get married on January 31, 2005. The child is born
February 1, 2005. The parties have the marriage annulled on February 28, 2005.
Because the child was born during the marriage (even though the marriage was
later annulled), this man is presumed to be the father. More information would
be needed to determine if the presumption has been successfully rebutted by any
method.
EXAMPLE
2: A man and woman get married on January 31, 2005 and have the marriage
annulled on February 28, 2005. A child is born on March 15, 2005. Because the
child was born within 300 days of the marriage being terminated by annulment,
the man is the presumed father of this child.
4.
“(d) after the birth of the child, the
man and the birth mother of the child married each other in apparent compliance
with law, whether or not the marriage is, or could be declared, invalid, the
man voluntarily asserted the man's parentage of the child, and there is no
other presumptive father of the child, and:
(i) the assertion is in a record filed with the Office of Vital Records
and Statistics;
(ii) the man agreed to be and is named as the child's father on the
child's birth certificate; or
(iii) the man promised in a record to support the child as his own.”
(Emphasis
added)
At this time, OVRS indicates that any assertions “in a record
filed with the Office of Vital Records and Statistics” are accomplished using
the Voluntary Declaration of Paternity (VDP) and may involve a process known as
legitimation. Because the use of the VDP actually creates a declarant father
relationship instead of a presumed father relationship, refer to the declarant
father section below.
If either party provides any other type of “record” or “promise”
to support the child, review the documentation with the assigned AAG to
determine if it is sufficient to meet the definition of presumed father.
Valid
Methods to Challenge the Presumption of Parentage
If a man meets the legal definition of a presumed father as given above,
there is a legal presumption that he is the biological father. A legal
presumption may be contested and is, therefore, not the same as a legal finding
or adjudication of parentage. Either the presumed father or the mother may
contest the presumption in either an administrative or judicial proceeding.
There are several ways that this presumption of parentage can be rebutted
(challenged), thus excluding the presumed father from further actions to
establish parentage and/or child support. If you determine that a presumed
father has been appropriately excluded by one of the methods listed below,
narrate your determination, and proceed against other named consorts.
Many of the exclusion methods available to presumed fathers are
found in Utah Code 81-5-607:
1.
“(3) The presumption may be rebutted by:
(a) genetic test results that exclude the presumed father;” (Emphasis added)
EXAMPLE:
The presumed father participates in genetic tests through an accredited
laboratory which exclude him as the biological father of the child.
2.
“(b)
genetic test results that rebuttably identify another man as the father in
accordance with Section 81-5-505;” (Emphasis added)
NOTE: In the past, CSS has
allowed testing of presumed fathers and alleged fathers in no particular order,
and an administrative order could be issued against an alleged father based on
positive genetic test results, even if a presumed father existed who had not
been excluded. Current policy recognizes that there are additional rights given
to presumed fathers pursuant to Utah law, so the rights of the presumed father
and his legal relationship to the child must be resolved by adjudication prior
to pursuing or testing any other consorts.
3.
“(c)
evidence that the presumed father and the birth mother of the child neither
cohabited nor engaged in sexual intercourse with each other during the probable
time of conception; or. . . .” (Emphasis
added)
EXAMPLE: The presumed father claims that
he was on active military duty in another country at the probable time of
conception and can provide documentation. Have the presumed father, mother, and
child (and any alleged fathers named) submit to genetic tests. If you receive a
genetic test exclusion for the presumed father, the genetic test results act as
further evidence to support that the parties were apart at the time of
conception, and the presumed father has been acceptably excluded. If testing
the presumed father is not possible, review the strength of the evidence
provided with the AGO before deciding if it is sufficient to exclude the
presumed father. If in doubt, proceed judicially and allow the courts to
determine if the evidence is sufficient or if testing is required.
4.
“(d) an
adjudication under this part.” (Emphasis
added)
If the divorce decree or other
judicial order contains a paragraph such as one of the three examples listed
below, you may generally conclude that the presumed father has been judicially
excluded as the biological father of the child.
EXAMPLES:
“During the marriage, a child was born to Mrs. Doe. Mr. Doe is not
the father of the child because he was residing in another country at the time
of conception;” or
“During the marriage, a child was born to Mrs. Doe. Mr. Doe is not
the father of that child;” or,
“There have been no children born of this marriage. Mrs. Doe is
expecting, but both parties acknowledge that Mr. Doe is not the biological
father of the unborn child.”
NOTE: The AGO has advised that it is not enough for an order to
state that “no children are expected” or “there were no children born as issue
of the marriage” to exclude a presumed father. There must also be a finding
that the mother is not currently expecting or that if she is expecting, the
expected child is not an issue of the marriage.
In addition to the exclusion methods mentioned
above, there is one other method for a presumed father to rebut the presumption
of parentage: the Voluntary Declaration of Paternity (VDP). Utah Code 81-5-303
states:
“(1) A presumed or declarant father may
sign a denial of the presumed or declarant father's paternity.
(2) The denial is valid only if:
(a) a declaration of paternity signed,
or otherwise authenticated, by another man is filed in accordance with Section
81-5-305;
(b) the denial is in a form prescribed
by and filed with the Office of Vital Records and Statistics and is signed, or
otherwise authenticated, under penalty of perjury; and
(c) the presumed or declarant father
has not previously:
(i) declared the presumed or declarant
father's paternity, unless the previous declaration has been rescinded in
accordance with Section 81-5-306 or successfully challenged in accordance with
Section 81-5-307; or
(ii) been adjudicated to be the father
of the child.”
Utah Code
81-8-305 states:
“(3) (a) Except as otherwise provided in
Sections 81-5-306 and 81-5-307, a valid denial of paternity by a presumed or
declarant father filed with the Office of Vital Records and Statistics in
conjunction with a valid declaration of paternity is equivalent to a legal
finding of the nonparentage of the presumed or declarant father and discharges
the presumed or declarant father from all rights and duties of a parent.
(b) If a
valid denial of paternity is filed with the Office of Vital Records and
Statistics, the presumed or declarant father may not recover child support that
was paid prior to the time of filing.”
The VDP
contains a section on the back of the form where a husband can sign indicating
that he agrees that he is not the biological father of the child. This section
of the VDP serves as the “denial of paternity” mentioned in Utah statute for
the presumed father. If the front of the VDP is also signed by the mother and a
declarant father and then filed with the Office of Vital Records and Statistics
(OVRS), the husband/presumed father is legally excluded as the father of the
child.
If a
presumed father excluded himself by signing the VDP, the exclusion is no longer
valid if the VDP is rescinded (the rescission section is signed within 60 days
of filing at OVRS) or if the VDP is void. Proceed against the presumed father
as if there had never been a VDP. If the VDP was successfully challenged in
court, consult with the assigned AAG on the current parentage status of each
possible consort.
If you are
unsure whether the judicial order, or any other method, excludes the presumed
father, consult with the assigned AAG before you proceed exclusively against an
alleged (or declarant) father.
If there is
a presumed father and either the mother
or the presumed father contests terminating the parent-child relationship
or states in a hearing request that s/he believes that excluding the presumed
father would not be in the best interests of the child(ren), discuss the
party’s concerns with the assigned AAG, who will review the case based on Utah
Code 81-5-607 and 608. These sections indicate that presumed and declarant
fathers may be adjudicated to be the father of the child despite evidence that
there is no biological relationship if it is in the best interest of the child.
On a case-by-case basis, the AGO may determine that a judicial action is
necessary to adjudicate the parent-child relationship concerning the presumed
or declarant father and to establish support after considering the following
per Utah Code 81-5-608:
“(1) In a proceeding to adjudicate
the parentage of a child having a presumed father or to challenge the parentage
of a child having a declarant father, the tribunal may deny a motion seeking an
order for genetic testing of the birth mother, the child, and the presumed or
declarant father, or if testing has been completed, the tribunal may disregard
genetic test results that exclude the presumed or declarant father if the
tribunal determines that:
(a) the conduct of the birth
mother or the presumed or declarant father estops that party from denying
parentage; and
(b) it would be inequitable to
disrupt the parent-child relationship between the child and the presumed or
declarant father.
(2) In determining whether to deny
a motion seeking an order for genetic testing or to disregard genetic test
results under this section, the tribunal shall consider the best interest of
the child, including the following factors:
(a) the length of time between the
proceeding to adjudicate parentage and the time that the presumed or declarant
father was placed on notice that the presumed or declarant father might not be
the genetic father of the child;
(b) the length of time during
which the presumed or declarant father has assumed the role of parent of the
child;
(c) the facts surrounding the
presumed or declarant father's discovery of the father's possible nonparentage;
(d) the nature of the relationship
between the child and the presumed or declarant father;
(e) the age of the child;
(f) the harm that may result to the
child if presumed or declared parentage is successfully disestablished;
(g) the nature of the relationship
between the child and any alleged father;
(h) the extent to which the
passage of time reduces the chances of establishing the parentage of another
individual and a child-support obligation in favor of the child; and
(i) other factors that may affect
the equities arising from the disruption of the parent-child relationship
between the child and the presumed or declarant father or the chance of other
harm to the child.
(3)
If the tribunal denies a motion seeking an order for genetic testing or
disregards genetic test results that exclude the presumed or declarant father,
the tribunal shall issue an order adjudicating the presumed or declarant father
to be the father of the child.”
Procedures:
Obtaining a Support Order Against a Presumed Father
If a presumed
father exists, pursue a support order using the following procedures. If there
are multiple consorts, the presumed father issues must be resolved before
pursuing other consorts.
1.
No order
exists. Child is born during a valid marriage between the presumed father and
mother. If the child was born during a valid marriage, serve the mother and
presumed father with a “Notice of Agency Action: Child Support” that does not
raise the presumed parentage issue or provide the genetic testing option.
Obtain an administrative child support order. If the presumed father (not the
mother) requests genetic testing in this situation, facilitate the testing. If
the presumed father is excluded by the genetic testing:
a.
Provide both parties with a copy of the
results; and,
b.
After the appropriate response period,
issue an “Order: Genetic Test Exclusion” form to adjudicate that the presumed
father is not the father;
c.
Begin establishment procedures against
the alleged father. For additional information, refer to CS 308P.
If the mother responds to
the NAA and contests the parentage of the presumed father, dismiss the NAA
and refer the case to the AGO. Do not facilitate genetic tests on a presumed
father based on the mother’s request unless directed by the AGO.
2.
No order exists. Child is not
born during a valid marriage (meaning the presumption of parentage was created
outside of the dates of a valid marriage/divorce).
a.
Serve the
mother and presumed father with a “Notice of Agency Action: Parentage and Child
Support.”
i.
Select the
option which recommends that they submit to genetic testing because the
presumption of parentage is in question.
ii.
Select the
notices in the document generation packet for service with the “Notice of
Agency Action: Paternity and Child Support” form on the mother and presumed
father respectively. These notices also recommend that testing be conducted and
ask the parents to consent to testing.
iii.
Because of
the presumption of parentage, include arrears in the document.
b.
If the presumed
father submits to genetic testing and is not excluded, notify both parties of
the test results and proceed to take an “Order: Parentage and Child Support”
after the response timeframe.
c.
If the
presumed father participates and is excluded by genetic testing,
i.
Notify of
the parties of the test results and issue the “Order: Genetic Test Exclusion;”
and,
ii.
Ask the
mother to name the biological father. If she refuses or insists that the
presumed father is the father, initiate non-cooperation procedures as
appropriate.
d.
If he does
not submit to testing, but chooses to waive this right and stipulate, ask the
mother and the presumed father to sign an administrative “Stipulation and
Order: Parentage and Child Support”.
e.
If the
presumed father does not submit to testing but will not voluntarily sign a
stipulation, proceed to take an “Order: Parentage and Child Support”.
3.
All other possible consorts have
been excluded (or the mother can not name other consorts), and mother claims
that a previously-excluded presumed father is the only remaining possibility: The possible actions available
depend on how the presumed father was previously excluded.
a.
Genetic test
results: Genetic test results that exclude a presumed father can only be
contested with additional genetic testing.
b.
VDP: If a
presumed father previously excluded himself by signing the denial of paternity
on the VDP, the exclusion is no longer valid if the VDP is rescinded by
signature (within 60 days) or if the VDP is void. Proceed against the presumed
father and any other possible consorts as if there had never been a VDP. If the
VDP was successfully challenged in court, consult with the assigned AAG on the
parentage status of each potential consort.
c.
Judicial
order exists that specifically states that the presumed father is excluded:
Consult with the AGO to determine whether the judicial order precludes pursuing
the parentage of the husband (or ex-husband). If it does not, refer the case to
the AGO to petition the court for an order requiring him to submit to genetic
testing, and if he is not excluded, to modify the existing judicial order to
name the child, establish paternity, and establish an appropriate child support
award.
d.
Judicial
order exists that is silent concerning the child’s parentage (doesn’t name the
child in question and doesn’t specifically exclude the presumed father as the
father of the child): Consult with the assigned AAG. The judicial order may
need to be modified to clarify the parentage status of the child; however, the
AGO will direct you as to when and if genetic testing is appropriate during the
judicial process.
If the
presumed father files a legal action in the district court, or if a judicial
legal action has been filed and is pending, do not proceed administratively to
establish an order. Refer the case to the AGO to join in the action. If
appropriate, the attorney may petition the court for a temporary judicial
support order against the presumed father. Genetic testing will be facilitated
by CSS as directed by the assigned AAG and courts.
Declarant
Father
Declarant father: Defined in Utah Code 81-5-102
as follows:
“(9) ‘Declarant father’ means a male who:
(a) along with the birth mother, claims to be the genetic father
of a child; and
(b) signs a voluntary declaration of paternity to establish the
man's parentage.”
If parentage has previously been legally established
by the mother and declarant father signing a VDP that was filed with the Office
of Vital Records and Statistics (OVRS), the steps you’ll take will depend on
whether genetic tests have been completed.
1.
Genetic testing was previously completed that supports the VDP:
a.
Ask the mother and the declarant father to sign an
administrative stipulation for child support.
b.
If the declarant father will not sign an
administrative stipulation, proceed to serve both parents with a “Notice of
Agency Action: Child Support” and obtain an “Order of Child Support.”
2.
Genetic testing was NOT previously completed that supports the VDP and
the VDP was filed less than four years ago:
a.
Serve the
mother and declarant father with a “Notice of Agency Action: Child Support.”
i.
Include the
paragraph which recommends that genetic testing be conducted to determine if
the VDP is consistent with testing results. It also states that if s/he
consents to genetic testing and the testing results show he is not the
biological father, s/he concurrently consents that CSS may initiate an action
in court to rescind the VDP.
ii.
Select the
notices in the document generation packet for service with the NACA
on the mother and declarant father respectively. These notices allow each
parent to request genetic tests or to consent to genetic tests if requested by
the other parent. Each party also has the option to decline genetic tests. Each
party may also consent to
iii.
Include
arrears, if appropriate.
b.
If either
the declarant father or the mother requests genetic testing, attempt to obtain
a signed genetic request/consent from both parties. You may proceed to schedule
the genetic tests based on one party’s request; however, mail additional copies
of the request/consent with the appointment letters or meet with all parties
prior to the genetic tests to obtain their signatures on this form. While the
testing may be scheduled based on one party’s request, both parties must
consent to having the VDP rescinded before the AGO can act on genetic test
results that exclude the declarant father.
c.
If the
declarant father participated in genetic testing and is the biological father,
take the following steps.
i.
Generate the
“Genetic Test Results to Mother/Declarant Father” letters. Include a copy of
the genetic test results.
ii.
Set a
self-alert for 30 days after the letter.
iii.
Monitor for
responses.
iv.
Issue an
administrative order of child support at the end of the response timeframes.
d.
If the
declarant father participates in testing and is excluded, refer to Parentage
Disestablishment, Rescission of the “Voluntary Declaration of Paternity” for
the procedures to notify the parents of the results and to determine if CSS
will file a judicial rescission action.
e.
If either
party requests genetic tests by signing the request option in the forms (not
the consent option), but the other party does not participate in testing, refer
the case to the AGO to establish the support order judicially.
f.
If only one
party requests genetic tests by signing the request option in the forms (not
the consent option) but then does not participate in testing, genetic tests
have been “declined” and you may proceed as if neither party had requested
genetic tests.
g.
If neither
party requests genetic tests by signing the request option in the forms, take an administrative order of child support
against the declarant father.
3.
Genetic testing was NOT
previously conducted that supports the valid VDP, but the VDP was filed more
than four years ago: ORS/CSS
will not offer or conduct genetic testing for parties if it has been more than
four years since the VDP was filed with OVRS.
a.
Serve the
mother and declarant father with a “Notice of Agency Action: Child Support”. Do
not include the Voluntary Declaration of Paternity, Genetic Testing Not
Completed option. Do not include the letters recommending testing or requesting
consent from the parties.
b.
If either
party requests testing in response to the Notice inform them that ORS/CSS does
not facilitate testing beyond the four-year timeframe for challenging the VDP
based on a material mistake of fact.
c.
After the
response timeframe has passed, issue the appropriate order, but do not include
a Voluntary Declaration of Paternity option within the order. If either party
commences a judicial action to challenge the parentage prior to the
administrative order, refer the case to the AGO.
NOTE: Utah Code 81-5-307 places a time limit of four years from
the effective date (filing date) of the VDP for a VDP to be challenged in court
based on a material mistake of fact (i.e., genetic test results). ORS/CSS will
not offer or facilitate genetic testing for parties if it has been more than
four years since the VDP was filed with OVRS.
Generally,
If the declarant father requests a hearing, follow administrative
hearing procedures as long as parentage is not the issue. If the declarant
father or mother questions parentage at any time during the administrative
hearing (and the VDP has not passed the four-year limit for genetic testing
facilitated by ORS/
1.
Proceed with
the administrative hearing process if the declarant father is the biological
father based on genetic tests.
2.
If the
requesting party(ies) fail to participate in genetic tests, proceed with the
OAH hearing based on the statute on Utah Code 81-5-305 which states:
“(2) (a) When a declaration of
paternity is filed, the declaration of paternity shall be recognized as a basis
for a child support order without any further requirement or proceeding
regarding the establishment of parentage.
(b) The liabilities of the declarant
father include the reasonable expense of the birth mother's pregnancy and
confinement and for the education, necessary support, and any funeral expenses
for the child.
(c) When a father declares paternity,
the father's liability under Subsection (2)(a) for past amounts due is limited
to the period of four years immediately preceding the date that the voluntary
declaration of paternity was filed.”
3.
If either
party requests genetic tests by signing the request option in the forms (not
the consent option), but the other party does not participate in testing,
dismiss the administrative action and notify OAH that the action has been
dismissed. Refer the case to the AGO to establish the support order judicially
based on Utah Code 81-5-305(2).
4.
If the
parties are tested and the declarant father is excluded, dismiss the
administrative action and notify OAH that the action has been dismissed. Follow
the procedures found in policy to determine if CSS will file a judicial
rescission action (when both parties have consented to rescission) or file a
judicial action to pursue child support based on Utah Code 81-5-305 (2).
Declarant
Fathers and Legitimation
OVRS has
authority per Utah Code 26-2-10 for a process called legitimation:
“(1) An individual born in this state may request the state
registrar to register a supplementary birth certificate for the individual if:
(a) the individual is legally recognized as a child of the
individual's parents when the individual's parents are subsequently married;
(b) the individual's parentage has been determined by a state
court of the United States or a Canadian provincial court with jurisdiction; or
(c) the individual has been legally adopted, as a child or as an
adult, under the law of this state, any other state, or any province of Canada.
(2) The application for registration of a supplementary birth certificate
may be made by: (a) the individual requesting registration under Subsection (1)
if the individual is of legal age;
(b) a legal representative; or
(c) any agency authorized to receive children for placement or
adoption under the laws of this or any other state.
(3) (a) The state registrar shall require that an applicant submit
identification and proof according to department rules.
(b) In the case of an adopted individual, that proof may be
established by order of the court in which the adoption proceedings were held.
(4) (a) After the supplementary birth certificate is registered,
any information disclosed from the record shall be from the supplementary birth
certificate.
(b) Access to the original birth certificate and to the evidence
submitted in support of the supplementary birth certificate are not open to
inspection except upon the order of a Utah district court or as described in
Section 81-13-103 or 81-13-504.”
At this time, OVRS procedures for the legitimation process require
the parents to provide their marriage certificate, pay a fee and sign the VDP.
This is different than when parents normally sign a VDP in two ways: First, the
parents must be married after the birth of the child; and second, after the
legitimation process, a new birth record is issued where the father’s name is
listed as if the parents had been married at the time of birth. The previous
birth record, the marriage certificate, and the VDP are then sealed, similar to
an adoption. If the parents sign the VDP before they are married, they may
complete the legitimation procedure after their marriage. OVRS can confirm that
legitimation has occurred (continue to work through ORSBIRTHCERT, ORSBIRTHCERT
and the CSS employees who contact OVRS) but can provide no other information
from the sealed record.
Because the use of the VDP in legitimation creates a declarant
father relationship, handle the father-child relationship as a declarant father
relationship if you confirm that legitimation has occurred, even though you
will not be able to obtain a copy of the VDP. The only difference in procedures
between a legitimized declarant father and a normal declarant father is that if
the legitimized declarant father is excluded by genetic tests,
EXAMPLE: A child is born on January 18,
2005. The mother and a man marry on February 14, 2005. When you receive the
birth certificate information for the child, the man’s name appears on the
form. Since the child was born out of wedlock, you request a copy of the VDP
only to be told that a VDP does not exist. At this point, you ask if
legitimation occurred. If the answer is yes, proceed with the order
establishment procedures outlined for declarant fathers; however, if genetic
testing is completed,
Alleged
Father
Utah Code
81-5-102 defines an alleged father as follows:
“(2) ‘Alleged father’ means a man who alleges himself to be, or is
alleged to be, the genetic father or a possible genetic father of a child, but
whose paternity has not been determined.”
An alleged father is identified for CSS when the
mother, the alleged father, or a specified relative completes an declaration of
parentage.
Refer to Administrative Notice
of Agency Action – Parentage and Child Support for the forms and procedures to
use when establishing a support order against an alleged father.
Mother
Cooperation
If the
mother does not cooperate with genetic testing in any of the above fact
situations and scenarios, initiate non-cooperation procedures as appropriate.
Exception: If the parents previously signed
a VDP which has been filed with OVRS or if there is a presumption of parentage,
do not pursue non-cooperation of the mother if she fails to appear for the
genetic testing appointment or refuses to be tested. Refer the case to the AGO
and establish child support judicially.