ESTABLISHMENT OF PATERNITY
CS 305P Paternity: Adjudicated,
Presumed and Declarant Fathers
04/87
Revised 05/31/23 Training Completed 06/14/23 Last Reviewed 04/07/25
Utah
Code 26B-8-110; 30-1-17.2; 78B-15-102; 78B-15-204; 78B-15-301 to 311; 78B-15-505; 78B-15-601 to 623
CIC: Refer to procedures found in CS 1305P
CIC Paternity: Adjudicated, Presumed, and Declarant Fathers
Introduction
The Uniform
Parentage Act, enacted by Utah on May 1, 2005 and found in Utah Code 78B-15,
divides possible paternity 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 paternity 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 paternity 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 paternity 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 Paternity Disestablishment, Overview
• CS
329P-1 Paternity Disestablishment, Rescission of the “Affidavit for Voluntary
Declaration of Paternity by Parents”
• CS
329P-2 Paternity Disestablishment, Judicial Order Required
• CS
329P-3 Paternity Disestablishment, Amending Administrative Orders Based on
Genetic Test Results
• CS
329P-4 Paternity Disestablishment, Genetic Testing After the Order
Adjudicated
Father
Utah Code
78B-15-102 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 78B-15-102 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 paternity:
1.
A divorce
decree: Utah Code 78B-15-623 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 paternity is raised and the tribunal adjudicates according to Part
6, Adjudication of Parentage, 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 paternity 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: 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
paternity order.
3.
Juvenile Court order: Juvenile Courts have jurisdiction to adjudicate
paternity 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 paternity
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 paternity.
NOTE:
Review Juvenile Court orders with the AGO if paternity 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 paternity has been adjudicated by
the other document, narrate the discussion and reasons paternity 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, paternity has been administratively adjudicated for that child.
NOTE: In the past, CSS procedures directed agents to have willing
parents sign an “Affidavit for Voluntary Declaration of Paternity by Parents”
(VDP) after they’d been served with administrative paternity action. The
administrative order that followed the VDP may not actually contain the
paternity establishment language depending on the procedures in place when it
was issued.
Any order that
adjudicates paternity creates a binding parent-child relationship until/unless
it is amended, set aside, or terminated by a subsequent order. As long as
paternity has been adjudicated in an order, do not proceed with any
establishment actions against any other type of father until the paternity
issues in the existing order have been resolved.
If an adjudicated father or the mother wishes to
contest the legally established paternity, the options available are determined
by the type of order that adjudicated paternity. 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 paternity has been adjudicated, and that
challenging a judicial paternity 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 Department of Health, Office of Vital Records and
Statistics (OVRS), the previously existing court order governs the paternity 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
paternity order established paternity, 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 Paternity
Disestablishment, Amending Administrative Orders Based on Genetic Test Results.
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 paternity.” The situations are presented together in the
Paternity 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 paternity 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 78B-15-102 defines a presumed father as follows:
“(20) "Presumed father" means a man who, by operation of
law under Section 78B-15-204, is recognized
as the father of a child until that status is rebutted or confirmed as set
forth in this chapter.”
Utah
Code 78B-15-204 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) he and the 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)
he and the 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;”
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, he and the 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 its 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, 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, he voluntarily
asserted his paternity 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;
(ii) he agreed to be and is named as the child's father on the child's birth
certificate; or
(iii) he 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” are accomplished using the “Affidavit
for Voluntary Declaration of Paternity by Parents” (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 AGO to determine if it
is sufficient to meet the definition of presumed father.
Valid
Methods to Challenge the Presumption of Paternity
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 paternity. 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 paternity can be rebutted
(challenged), thus excluding the presumed father from further actions to
establish paternity 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 78B-15-607(3):
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 78B-15-505;”
(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 mother of the child neither cohabited
nor engaged in sexual intercourse with each other during the probable time of
conception; . . . .” (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 above examples, Utah Code 30-1-17.2(3) states:
“(3) If the child was born at the time
of entry of a divorce decree, other children are named
as children of the marriage, but that child is specifically not named, the
husband is not presumed to be
the father of the child not named in the order.”
In addition
to the exclusion methods mentioned above, there is one other method for a
presumed father to rebut the presumption of paternity: the “Affidavit for
Voluntary Declaration of Paternity by Parents” (VDP). Utah Code 78B-15-303
states:
“A presumed or declarant father may sign a denial of his paternity.
The denial is valid only if:
(1) a declaration of paternity signed, or otherwise authenticated, by another
man is filed pursuant to Section 78B-15-305;
(2) the denial is in a form prescribed by and filed with the Office of Vital
Records, and is signed, or otherwise authenticated, under penalty of perjury;
and
(3) the presumed or declarant father has not previously:
(a) declared his paternity, unless the previous declaration has been rescinded
pursuant to Section 78B-15-306 or successfully challenged pursuant to Section
78B-15-307; or
(b) been adjudicated to be the father of the child.”
Utah Code 78B-15-305
states:
“(3) Except as otherwise provided in Sections 78B-15-306 and 78B-15-
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 Department of Health, 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 AGO on the current paternity status of each possible
consort.
If you are
unsure whether the judicial order, or any other method, excludes the presumed
father, consult with the AGO before you proceed exclusively against an alleged
(or declarant) father.
If you are
unsure whether the judicial order, or any other method, excludes the presumed
father, consult with the AGO, before pursuing other potential consorts.
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 AGO, who will review the case based on Utah Code 78B-15-607
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:
“78B-15-608. Authority to
deny motion for genetic testing or disregard test results.
(1) In a proceeding to adjudicate the parentage of a child having a presumed
father or to challenge the paternity of a child having a declarant father, the
tribunal may deny a motion seeking an order for genetic testing of the 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 mother or the presumed or declarant father estops that
party from denying parentage; and
(b) it would be inequitable to disrupt the father-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 he might
not be the genetic father;
(b) the length of time during which the presumed or declarant father has
assumed the role of father of the child;
(c) the facts surrounding the presumed or declarant father's discovery of his
possible nonpaternity;
(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 paternity 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 paternity of another man 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 father-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,
it 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 paternity 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 paternity 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 paternity was created
outside of the dates of a valid marriage/divorce).
a.
Serve the
mother and presumed father with a “Notice of Agency Action: Paternity and Child
Support.”
i.
Select the
option which recommends that they submit to genetic testing because the
presumption of paternity 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 paternity, 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: Paternity 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: Paternity 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: Paternity 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 AGO on the paternity
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
paternity 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 paternity (doesn’t name the
child in question and doesn’t specifically exclude the presumed father as the
father of the child): Consult with the AGO. The judicial order may need to be
modified to clarify the paternity 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 AGO and courts.
Declarant
Father
Declarant father: Defined in Utah Code 78B-15-102(8)
as follows:
“(8) "Declarant father" means a male who, along with the
biological mother claims to be the genetic father of a child, and signs a
voluntary declaration of paternity to establish the man's paternity.”
If paternity has previously been legally established
by the mother and declarant father signing a VDP that was filed with the
Department of Health, 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, Paternity
Disestablishment, Rescission of the “Affidavit for Voluntary Declaration of
Paternity by Parents” 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 paternity prior to the
administrative order, refer the case to the AGO.
NOTE: Effective May 1, 2005, UCA 78B-15-307 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). (No VDP signed on or before May 1, 2005 will reach the deadline
before May 1, 2009. VDPs signed after May 1, 2005 have just four years from the
date accepted by OVRS.) 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 child was born in Utah, the Presiding Officer must send the
“Notice of Adjudication of Paternity” (form NAOP), a copy of the Birth Look-up
screen and a copy of the order establishing or disestablishing paternity to the
docket unit for forwarding to OVRS once the order is received and ORSIS has
been updated.
If the declarant father requests a hearing, follow administrative hearing
procedures as long as paternity is not the issue. If the declarant father or
mother questions paternity 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 78B-15-305(2)
which states:
“(2) When a declaration of paternity is
filed, it shall be recognized as a basis for a child support order without any further requirement or proceeding regarding
the establishment of paternity.”
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 78B-15-305(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 78B-15-305(2).
Declarant
Fathers and Legitimation
OVRS has
authority per Utah Code 26-2-10 for a process called legitimation:
“26B-8-110 Supplementary
certificate of birth.
(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 natural parents when the individual's natural 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 78B-6-141 or Section 78B-6-144.”
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 78B-15-102(2)
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 Affidavit of
Paternity.
Refer to Administrative Notice
of Agency Action - Paternity 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 paternity,
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.