AN ACT TO AMEND SECTIONS 41-57-23, 93-9-9 AND 93-9-28, MISSISSIPPI LEGISLATURE

2001 Regular Session

To: Judiciary A

By: Representative Moody

ISSISSIPPI CODE OF 1972, TO PROVIDE THAT ANY PETITION OR COMPLAINT TO MAKE CHANGES TO A BIRTH CERTIFICATE RESULTING FROM A JUDICIAL DETERMINATION OF PATERNITY SHALL INCLUDE A CERTIFIED COPY OF THE BIRTH CERTIFICATE IN QUESTION, TO REQUIRE EVERY SIGNATORY TO A PATERNITY ACKNOWLEDGMENT TO BE NAMED A PARTY TO THE COURT PROCEEDINGS, TO REQUIRE ANY RESCISSION OF A BIRTH CERTIFICATE TO BE FILED WITH THE STATE DEPARTMENT OF HEALTH, TO REQUIRE A CERTIFIED COPY OF THE COURT DECREE ALTERING THE BIRTH CERTIFICATE TO BE FORWARDED TO THE STATE DEPARTMENT OF HEALTH AND TO PROVIDE THAT IN THE EVENT THE COURT ORDERS THE BIRTH CERTIFICATE TO BE AMENDED, THE FATHER'S NAME SHALL BE REMOVED FROM THE CERTIFICATE AND THE SURNAME OF THE CHILD SHALL BE CHANGED TO THE SURNAME OF THE MOTHER; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. Section 41-57-23, Mississippi Code of 1972, is amended as follows:

41-57-23. (1) Any petition, bill of complaint or other proceeding filed in the chancery court to: (a) change the date of birth by two (2) or more days, (b) change the surname of a child, (c) change the surname of either or both parents, (d) change the birthplace of the child because of an error or omission of such information as originally recorded or (e) make any changes or additions to a birth certificate resulting from a legitimation, filiation or any changes not specifically authorized elsewhere by statute, shall be filed in the county of residence of the petitioner or filed in any chancery court district of the state if the petitioner be a nonresident petitioner. In all such proceedings, except as otherwise provided in subsection 2, the State Department of Health shall be made a respondent therein, and a certified copy of the petition, bill of complaint or other proceeding shall be forwarded to the State Department of Health. Process may be served upon the State Registrar of Vital Records. The State Department of Health shall file an answer to all such proceedings within the time as provided by general law. The provisions of this section shall not apply to adoption proceedings. Upon receipt of a certified copy of a decree, which authorizes and directs the State Department of Health to alter the certificate, it shall comply with all of the provisions of such decree.

(2) Any petition, bill of complaint or other proceedings filed in the chancery court to make any changes or additions to a birth certificate resulting from a judicial determination of paternity shall have attached to it as an exhibit a certified copy of the birth certificate in question which shall have been issued no more than thirty (30) days prior to the filing of the petition, bill of complaint or other proceeding in order for the court to be made aware of the information currently on the birth certificate. In all such proceedings, the State Department of Health may be made a respondent therein, and a certified copy of the petition, bill of complaint or other proceeding shall be forwarded to the State Department of Health. If made a respondent therein, process may be served upon the State Registrar of Vital Records and the State Department of Health shall file an answer to all such proceedings within the time as provided by general law. The provisions of this section shall not apply to adoption proceedings. Upon receipt of a certified copy of a decree, which authorizes and directs the State Department of Health to alter the certificate, it shall comply with all of the provisions of such decree and the surname of the child shall be that of the father, unless the judgment specifies otherwise.

(3) If a child is born to a mother who was not married at the time of conception or birth, or at any time between conception and birth, and the natural father acknowledges paternity, the name of the father shall be added to the birth certificate if a notarized affidavit by both parents acknowledging paternity is received on the form prescribed or as provided in Section 93-9-9. The surname of the child shall be that of the father except that an affidavit filed at birth by both listed mother and father may alter this rule. In the event the mother was married at the time of conception or birth, or at any time between conception and birth, or if a father is already listed on the birth certificate, action must be taken under Section 41-57-23(1) to add or change the name of the father.

(4) (a) A signed voluntary acknowledgment of paternity is subject to the right of any signatory to commence proceeding to rescind the acknowledgment within the earlier of:

(i) Sixty (60) days; or

(ii) The date of a judicial proceeding relating to the child, including a proceeding to establish a support order, in which the signatory is a party.

(b) After the expiration of the sixty-day period specified in subsection (3)(a)(i) of this section, a signed voluntary acknowledgment of paternity may be challenged in court only on the basis of fraud, duress, or material mistake of fact, with the burden of proof upon the challenger; the legal responsibilities, including child support obligations, of any signatory arising from the acknowledgment may not be suspended during the pendency of the challenge, except for good cause shown.

(c) Every signatory to an acknowledgment of paternity must be made a party to a proceeding to rescind or challenge the acknowledgment. For the purpose of rescission of or challenge to an acknowledgment of paternity, a signatory submits to personal jurisdiction of this state by signing the paternity acknowledgment rescission and filing the document with the State Department of Health. A proceeding to rescind or to challenge an acknowledgment of paternity must be conducted in the same manner as a proceeding to adjudicate parentage under Section 93-9-9. Except for good cause shown, during the pendency of a proceeding to rescind or challenge an acknowledgment of paternity, the court may not suspend the legal responsibilities of a signatory arising from an acknowledgment, including the duty to pay child support.

(d) At the conclusion of a proceeding to rescind or challenge an acknowledgment of paternity, the court shall order the State Department of Health to amend the birth record of the child, if appropriate. In the event the court orders the birth record of the child to be amended, the father's name shall be removed from the birth record and the surname of the child shall be changed to the surname of the mother, unless the judgment specifies otherwise.

SECTION 2. Section 93-9-9, Mississippi Code of 1972, is amended as follows:

93-9-9. (1) Paternity may be determined upon the petition of the mother, or father, the child or any public authority chargeable by law with the support of the child; provided that such an adjudication after the death of the defendant must be made only upon clear and convincing evidence. In all such proceedings, a certified copy of the birth certificate in question which shall have been issued no more than thirty (30) days prior to the filing of the petition, bill of complaint or other proceeding shall be attached as an exhibit to such pleading in order for the court to be made aware of the information currently on the birth certificate. If paternity has been lawfully determined, or has been acknowledged in writing according to the laws of this state, the liabilities of the noncustodial parent may be enforced in the same or other proceedings by the custodial parent, the child, or any public authority which has furnished or may furnish the reasonable expenses of pregnancy, confinement, education, necessary support and maintenance, and medical or funeral expenses for the custodial parent or the child. The trier of fact shall receive without the need for third-party foundation testimony certified, attested or sworn documentation as evidence of (a) childbirth records; (b) cost of filing fees; (c) court costs; (d) services of pro cess fees; (e) mailing cost; (f) genetic tests and testing fees; (g) the department's attorney's fees; (h) in cases where the state or any of its entities or divisions have provided medical services to the child or the child's mother, all costs of prenatal care, birthing, postnatal care and any other medical expenses incurred by the child or by the mother as a consequence of the mother's pregnancy or delivery; and (i) funeral expenses. However, proceedings hereunder shall not be instituted by the Department of Human Services after the child has reached the age of eighteen (18) years but proceedings may be instituted by a private attorney at any time until such child attains the age of twenty-one (21) years unless the child has been emancipated as provided in Section 93-5-23 and Section 93-11-65. In the event of court determined paternity, a certified copy of the decree shall be forwarded to the State Department of Health, authorizing and directing the State Department of Health to alter the birth certificate of the child in compliance with all the provisions of such decree, and the surname of the child shall be that of the father, unless the judgment specifies otherwise.

(2) If the alleged father in an action to determine paternity to which the Department of Human Services is a party fails to appear for a scheduled hearing after having been served with process or subsequent notice consistent with the Rules of Civil Procedure, his paternity of the child(ren) shall be established by the court if an affidavit sworn to by the mother averring the alleged father's paternity of the child has accompanied the complaint to determine paternity. Said affidavit shall constitute sufficient grounds for the court's finding of the alleged father's paternity without the necessity of the presence or testimony of the mother at the said hearing. The court shall, upon motion by the Department of Human Services, enter a judgment of paternity. Any person who shall willfully and knowingly file a false affidavit shall be subject to a fine of not more than One Thousand Dollars ($1,000.00).

(3) Upon application of both parents to the State Department of Health and receipt by the State Department of Health of a sworn acknowledgement of paternity executed by both parents subsequent to the birth of a child born out of wedlock, the birth certificate of the child shall be amended to show such paternity if paternity is not shown on the birth certificate. Upon request of the parents for the legitimization of a child under this section, the surname of the child shall be changed on the certificate to that of the father.

(4) (a) A signed voluntary acknowledgment of paternity is subject to the right of any signatory to rescind the acknowledgment within the earlier of:

(i) Sixty (60) days; or

(ii) The date of a judicial proceeding relating to the child, including a proceeding to establish a support order, in which the signatory is a party.

(b) After the expiration of the sixty-day period specified in subsection (4) (a) (i) of this section, a signed voluntary acknowledgment of paternity may be challenged in court only on the basis of fraud, duress, or material mistake of fact, with the burden of proof upon the challenger; the legal responsibilities, including child support obligations, of any signatory arising from the acknowledgment may not be suspended during the pendency of the challenge, except for good cause shown.

(c) Every signatory to an acknowledgment of paternity must be made a party to a proceeding to rescind or challenge the acknowledgment. For the purpose of rescission of or challenge to an acknowledgment of paternity, a signatory submits to personal jurisdiction of this state by signing the paternity acknowledgment rescission and filing the document with the State Department of Health. A proceeding to rescind or to challenge an acknowledgment of paternity must be conducted in the same manner as a proceeding to adjudicate parentage under Section 93-9-9. Except for good cause shown, during the pendency of a proceeding to rescind or challenge an acknowledgment of paternity, the court may not suspend the legal responsibilities of a signatory arising from an acknowledgment, including the duty to pay child support.

(d) At the conclusion of a proceeding to rescind or challenge an acknowledgment of paternity, the court shall order the State Department of Health to amend the birth record of the child, if appropriate. In the event the court orders the birth record of the child to be amended, the father's name shall be removed from the birth record and the surname of the child shall be changed to the surname of the mother, unless the judgment specifies otherwise.

SECTION 3. Section 93-9-28, Mississippi Code of 1972, is amended as follows:

93-9-28. (1) The Mississippi State Department of Health in cooperation with the Mississippi Department of Human Services shall develop a form and procedure which may be used to secure a voluntary acknowledgement of paternity from the mother and father of any child born out of wedlock in Mississippi. The form shall clearly state on its face that the execution of the acknowledgement of paternity shall result in the same legal effect as if the father and mother had been married at the time of the birth of the child. When such form has been completed according to the established procedure and the signatures of both the mother and father have been notarized, then such voluntary acknowledgement shall constitute a full determination of the legal parentage of the child. The completed voluntary acknowledgement of paternity shall be filed with the Bureau of Vital Statistics of the Mississippi State Department of Health. The name of the father shall be entered on the certificate of birth upon receipt of the completed voluntary acknowledgement.

(2) (a) A signed voluntary acknowledgment of paternity is subject to the right of any signatory to rescind the acknowledgment within the earlier of:

(i) Sixty (60) days; or

(ii) The date of a judicial proceeding relating to the child, including a proceeding to establish a support order, in which the signatory is a party.

(b) After the expiration of the sixty-day period specified in subsection (2) (a) (i) of this section, a signed voluntary acknowledgment of paternity may be challenged in court only on the basis of fraud, duress, or material mistake of fact, with the burden of proof upon the challenger; the legal responsibilities, including child support obligations, of any signatory arising from the acknowledgment may not be suspended during the pendency of the challenge, except for good cause shown.

(c) Every signatory to an acknowledgment of paternity must be made a party to a proceeding to rescind or challenge the acknowledgment. For the purpose of rescission of or challenge to an acknowledgment of paternity, a signatory submits to personal jurisdiction of this state by signing the paternity acknowledgment rescission and filing the document with the State Department of Health. A proceeding to rescind or to challenge an acknowledgment of paternity must be conducted in the same manner as a proceeding to adjudicate parentage under Section 93-9-9. Except for good cause shown, during the pendency of a proceeding to rescind or challenge an acknowledgment of paternity, the court may not suspend the legal responsibilities of a signatory arising from an acknowledgment including the duty to pay child support.

(d) At the conclusion of a proceeding to rescind or challenge an acknowledgment of paternity, the court shall order the State Department of Health to amend the birth record of the child, if appropriate. In the event the court orders the birth record of the child to be amended, the father's name shall be removed from the birth record and the surname of the child shall be changed to the surname of the mother, unless the judgement specifies otherwise.

(3) The Mississippi State Department of Health and the Mississippi Department of Human Services shall cooperate to establish procedures to facilitate the voluntary acknowledgement of paternity by both father and mother at the time of the birth of any child born out of wedlock. Such procedures shall establish responsibilities for each of the departments and for hospitals, birthing centers, midwives, and/or other birth attendants to seek and report voluntary acknowledgements of paternity. In establishing such procedures, the departments shall provide for obtaining the Social Security account numbers of both the father and mother on voluntary acknowledgements.

(4) Upon the birth of a child out of wedlock, the hospital, birthing center, midwife or other birth attendant shall provide an opportunity for the child's mother and natural father to complete an acknowledgement of paternity by giving the mother and natural father the appropriate forms and information developed through the procedures established in subsection (3). The hospital, birthing center, midwife or other birth attendant shall be responsible for providing printed information, and audio visual material if available, related to the acknowledgement of paternity, and shall be required to provide notary services needed for the completion of acknowledgements of paternity. The information described above shall be provided to the mother and natural father, if present and identifiable, within twenty-four (24) hours of birth or before the mother is released. Such information, including forms, brochures, pamphlets, video tapes and other media, shall be provided at no cost to the hospital, birthing center or midwife by the Mississippi State Department of Health, the Department of Human Services or other appropriate agency.

SECTION 4. This act shall take effect and be in force from and after July 1, 2001.