MISSISSIPPI LEGISLATURE
2015 Regular Session
To: Judiciary B
By: Representative Moak
AN ACT TO PROVIDE THAT ANY PERSON WHO HAS BEEN CONVICTED OF A RAPE OFFENSE AND THE VICTIM OF THAT RAPE OFFENSE HAS CONCEIVED AND DELIVERED A CHILD AS A RESULT OF THE RAPE, SHALL NOT HAVE CUSTODY OR VISITATION RIGHTS, OR THE RIGHTS OF INHERITANCE FROM SUCH CHILD; TO CREATE NEW SECTION 93-15-102, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT THE WORDS, "PARENT" AND "FATHER" SHALL NOT MEAN ANY FATHER OF A CHILD, WHO IS THE BIOLOGICAL FATHER AS A RESULT OF A RAPE COMMITTED BY SUCH FATHER UPON THE BIOLOGICAL MOTHER OF THE CHILD FOR PURPOSE OF TERMINATION OF PARENTAL RIGHTS; TO AMEND SECTIONS 93-13-1, 11-7-13, 11-44-13, 91-1-3, 91-8-303, 91-1-15 AND 71-3-27, MISSISSIPPI CODE OF 1972, IN CONFORMITY THERETO; TO BRING FORWARD SECTION 71-3-25, MISSISSIPPI CODE OF 1972, WHICH PROVIDES FOR WORKER COMPENSATION PAYMENTS MADE TO THE FAMILIES OF EMPLOYEES WHOSE INJURIES RESULTED IN DEATH, FOR PURPOSES OF POSSIBLLE AMENDMENT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. The Mississippi Legislature recognizes that certain victims of sexual assault may conceive a child as a result of the sexual assault and may choose to bear and raise the child. The Legislature also recognizes that victims of a sexual assault who have elected to raise a child born as a result of the sexual assault, as well as that child, may suffer serious emotional or physical trauma if the perpetrator of the assault is granted parental rights with the child.
SECTION 2. (1) Except as provided in subsection (2) of this section, any person who has been convicted of a rape offense and the victim of that rape offense has conceived and delivered a child as a result of the rape, shall not have custody or visitation rights, or the rights of inheritance from such child.
(2) The mother of the child may waive the protection afforded under subsection (1) of this section regarding visitation, and request that the court grant reasonable visitation rights with the child if paternity has been acknowledged.
(3) The mother may petition the court to establish child support obligations against the father. Unless waived by the mother and, if applicable, the public agency substantially contributing to the support of the child shall petition the court to establish a child support obligation against the father of the child as provided by law.
SECTION 3. This section shall be codified as Section 93-15- 102, Mississippi Code of 1972:
93 15 102. For purposes of this chapter, the words, "parent" and "father" shall not mean any father of a child, who is the biological father as a result of a rape committed by such father upon the biological mother of the child as provided in Section 1 of House Bill No. ____, 2015 Regular Session.
SECTION 4. Section 93-13-1, Mississippi Code of 1972, is amended as follows:
93-13-1. The father and mother are the joint natural guardians of their minor children and are equally charged with their care, nurture, welfare and education, and the care and management of their estates. The father and mother shall have equal powers and rights, and neither parent has any right paramount to the right of the other concerning the custody of the minor or the control of the services or the earnings of such minor, or any other matter affecting the minor. If either father or mother die or be incapable of acting, the guardianship devolves upon the surviving parent. Neither parent shall forcibly take a child from the guardianship of the parent legally entitled to its custody. But if any father or mother be unsuitable to discharge the duties of guardianship, then the court, or chancellor in vacation, may appoint some suitable person, or having appointed the father or mother, may remove him or her if it appears that such person is unsuitable, and appoint a suitable person.
For purposes of this section, the words, "parent" and "father" shall not mean any father of a deceased, who is the biological father as a result of a rape committed by such father upon the biological mother of the deceased as provided in Section 1 of House Bill No. _____, 2015 Regular Session.
SECTION 5. Section 11-7-13, Mississippi Code of 1972, is amended as follows:
11-7-13. Whenever the death of any person or of any unborn quick child shall be caused by any real, wrongful or negligent act or omission, or by such unsafe machinery, way or appliances as would, if death had not ensued, have entitled the party injured or damaged thereby to maintain an action and recover damages in respect thereof, or whenever the death of any person or of any unborn quick child shall be caused by the breach of any warranty, express or implied, of the purity or fitness of any foods, drugs, medicines, beverages, tobacco or any and all other articles or commodities intended for human consumption, as would, had the death not ensued, have entitled the person injured or made ill or damaged thereby, to maintain an action and recover damages in respect thereof, and such deceased person shall have left a widow or children or both, or husband or father or mother, or sister, or brother, the person or corporation, or both that would have been liable if death had not ensued, and the representatives of such person shall be liable for damages, notwithstanding the death, and the fact that death was instantaneous shall in no case affect the right of recovery. The action for such damages may be brought in the name of the personal representative of the deceased person or unborn quick child for the benefit of all persons entitled under the law to recover, or by widow for the death of her husband, or by the husband for the death of the wife, or by the parent for the death of a child or unborn quick child, or in the name of a child, or in the name of a child for the death of a parent, or by a brother for the death of a sister, or by a sister for the death of a brother, or by a sister for the death of a sister, or a brother for the death of a brother, or all parties interested may join in the suit, and there shall be but one (l) suit for the same death which shall ensue for the benefit of all parties concerned, but the determination of such suit shall not bar another action unless it be decided on its merits. Except as otherwise provided in Section 11-1-69, in such action the party or parties suing shall recover such damages allowable by law as the jury may determine to be just, taking into consideration all the damages of every kind to the decedent and all damages of every kind to any and all parties interested in the suit.
This section shall apply to all personal injuries of servants and employees received in the service or business of the master or employer, where such injuries result in death, and to all deaths caused by breach of warranty, either express or implied, of the purity and fitness of foods, drugs, medicines, beverages, tobacco or other articles or commodities intended for human consumption.
Any person entitled to bring a wrongful death action may assert or maintain a claim for any breach of expressed warranty or for any breach of implied warranty. A wrongful death action may be maintained or asserted for strict liability in tort or for any cause of action known to the law for which any person, corporation, legal representative or entity would be liable for damages if death had not ensued.
In an action brought pursuant to the provisions of this section by the widow, husband, child, father, mother, sister or brother of the deceased or unborn quick child, or by all interested parties, such party or parties may recover as damages property damages and funeral, medical or other related expenses incurred by or for the deceased as a result of such wrongful or negligent act or omission or breach of warranty, whether an estate has been opened or not. Any amount, but only such an amount, as may be recovered for property damage, funeral, medical or other related expenses shall be subject only to the payment of the debts or liabilities of the deceased for property damages, funeral, medical or other related expenses. All other damages recovered under the provisions of this section shall not be subject to the payment of the debts or liabilities of the deceased, except as hereinafter provided, and such damages shall be distributed as follows:
Damages for the injury and death of a married man shall be equally distributed to his wife and children, and if he has no children all shall go to his wife; damages for the injury and death of a married woman shall be equally distributed to the husband and children, and if she has no children all shall go to the husband; and if the deceased has no husband or wife, the damages shall be equally distributed to the children; if the deceased has no husband, nor wife, nor children, the damages shall be distributed equally to the father, mother, brothers and sisters, or such of them as the deceased may have living at his or her death. If the deceased have neither husband, nor wife, nor children, nor father, nor mother, nor sister, nor brother, then the damages shall go to the legal representative, subject to debts and general distribution, and the fact that the deceased was instantly killed shall not affect the right of the legal representative to recover. All references in this section to children shall include descendants of a deceased child, such descendants to take the share of the deceased child by representation. There shall not be, in any case, a distinction between the kindred of the whole and half blood of equal degree. The provisions of this section shall apply to illegitimate children on account of the death of the mother and to the mother on account of the death of an illegitimate child or children, and they shall have all the benefits, rights and remedies conferred by this section on legitimates. The provisions of this section shall apply to illegitimate children on account of the death of the natural father and to the natural father on account of the death of the illegitimate child or children, and they shall have all the benefits, rights and remedies conferred by this section on legitimates, if the survivor has or establishes the right to inherit from the deceased under Section 91-1-15.
Any rights which a blood parent or parents may have under this section are hereby conferred upon and vested in an adopting parent or adopting parents surviving their deceased adopted child, just as if the child were theirs by the full blood and had been born to the adopting parents in lawful wedlock.
The list of persons in this section who may bring a wrongful death action is exclusive and only those persons shall be considered interested parties who are entitled to bring an action under this section. The biological father of any deceased described in this section, who is the biological father as a result of a rape offense committed by such father upon the biological mother of the deceased shall not be entitled to bring an action under this section.
A defendant in an action under this section is authorized within ninety (90) days of filing an answer, to request that the plaintiff initiate the process of determining heirs. Such determination must be resolved before commencement of trial.
SECTION 6. Section 11-44-13, Mississippi Code of 1972, is amended as follows:
11-44-13. If a claimant dies prior to the full payment of any claim awarded under this chapter, the remaining payments shall be made to his or her estate or heirs, except no father described in Section 1 of House Bill No. , 2015 Regular Session is authorized to be an heir. If any potential claimant dies prior to the filing of a claim, the claim may be filed by and on behalf of his or her estate or heirs.
SECTION 7. Section 91-1-3, Mississippi Code of 1972, is amended as follows:
91-1-3. When any person shall die seized of any estate of inheritance in lands, tenements, and hereditaments not devised, the same shall descend to his or her children, and their descendants, in equal parts, the descendants of the deceased child or grandchild to take the share of the deceased parent in equal parts among them except as otherwise provided in this section for certain biological fathers. When there shall not be a child or children of the intestate nor descendants of such children, then to the brothers and sisters and father and mother of the intestate and the descendants of such brothers and sisters in equal parts, the descendants of a sister or brother of the intestate to have in equal parts among them their deceased parent's share. The biological father of the intestate, who is the biological father because the father committed a rape offense against the biological mother shall not have any rights to inherit under this section. If there shall not be a child or children of the intestate, or descendants of such children, or brothers or sisters, or descendants of them, or father or mother, then such estate shall descend, in equal parts, to the grandparents and uncles and aunts, if any there be; otherwise, such estate shall descend in equal parts to the next of kin of the intestate in equal degree, computing by the rules of the civil law. There shall not be any representation among collaterals, except among the descendants of the brothers and sisters of the intestate.
SECTION 8. Section 91-8-303, Mississippi Code of 1972, is amended as follows:
91-8-303. To the extent there is no material conflict of interest between the representative and the person represented or among those being represented with respect to a particular question or dispute:
(1) A conservator or guardian may represent and bind the estate that the conservator or guardian controls;
(2) A conservator or guardian may represent and bind the ward if a conservator or guardian of the ward's estate has not been appointed;
(3) An agent having authority to act with respect to the particular question or dispute may represent and bind the principal;
(4) A trustee may represent and bind the beneficiaries of the trust;
(5) A personal representative of a decedent's estate may represent and bind persons interested in the estate;
(6) A parent, excluding any father described in Section 1 of House Bill No. , 2015 Regular Session, may represent and bind the person's minor or unborn child if a conservator or guardian for the descendant has not been appointed;
(7) A grandparent may represent the grandparent's grandchild if that grandchild is not already represented by a parent under paragraph (6); and
(8) A person designated by the settlor in the trust instrument or in a writing delivered to the trustee to represent the beneficiaries of the trust may represent and bind such beneficiaries.
SECTION 9. Section 91-1-15, Mississippi Code of 1972, is amended as follows:
91-1-15. (1) The following terms shall have the meanings ascribed to them herein:
(a) "Remedy" means the right of an illegitimate to commence and maintain a judicial proceeding to enforce a claim to inherit property from the estate of the natural mother or father of such illegitimate, said claim having been heretofore prohibited by law, or prohibited by statutes requiring marriage between the natural parents, or restrained, or enjoined by the order or process of any court in this state.
(b) "Claim" means the right to assert a demand on behalf of an illegitimate to inherit property, either personal or real, from the estate of the natural mother or father of such illegitimate.
(c) "Illegitimate" means a person who at the time of his birth was born to natural parents not married to each other and said person was not legitimized by subsequent marriage of said parents or legitimized through a proper judicial proceeding.
(d) "Natural parents" means the biological mother or father of the illegitimate.
(2) An illegitimate shall inherit from and through the illegitimates' mother and her kindred, and the mother of an illegitimate and her kindred shall inherit from and through the illegitimate according to the statutes of descent and distribution. However, if an illegitimate shall die unmarried and without issue, and shall also predecease the natural father, the natural mother or her kindred shall not inherit any part of the natural father's estate from or through the illegitimate. In the event of the death of an illegitimate, unmarried and without issue, any part of the illegitimates' estate inherited from the natural father shall be inherited according to the statutes of descent and distribution.
(3) Except as otherwise provided in subsection (6) of this section, an illegitimate shall inherit from and through the illegitimate's natural father and his kindred, and the natural father of an illegitimate and his kindred shall inherit from and through the illegitimate according to the statutes of descent and distribution if:
(a) The natural parents participated in a marriage ceremony before the birth of the child, even though the marriage was subsequently declared null and void or dissolved by a court; or
(b) There has been an adjudication of paternity or legitimacy before the death of the intestate; or
(c) There has been an adjudication of paternity after the death of the intestate, based upon clear and convincing evidence, in an heirship proceeding under Sections 91 1 27 and 91 1 29. However, no such claim of inheritance shall be recognized unless the action seeking an adjudication of paternity is filed within one (1) year after the death of the intestate or within ninety (90) days after the first publication of notice to creditors to present their claims, whichever is less; and such time period shall run notwithstanding the minority of a child. This one year limitation shall be self executing and may not be tolled for any reason, including lack of notice. If an administrator is appointed for the estate of the intestate and notice to creditors is given, then the limitation period shall be reduced to ninety (90) days after the first publication of notice, if less than one (1) year from the date of the intestate's death; provided actual, written notice is given to all potential illegitimate heirs who could be located with reasonable diligence. No claim of inheritance based on an adjudication of paternity, after death of the intestate, by a court outside the State of Mississippi shall be recognized unless:
(i) Such court was in the state of residence of the intestate at the time of the intestate's death;
(ii) The action adjudicating paternity was filed within ninety (90) days after the death of the intestate;
(iii) All known heirs were made parties to the action; and
(iv) Paternity or legitimacy was established by clear and convincing evidence.
(d) The natural father of an illegitimate and his kindred shall not inherit:
(i) From or through the child unless the father has openly treated the child as his, and has not refused or neglected to support the child.
(ii) Any part of the natural mother's estate from or through the illegitimate if the illegitimate dies unmarried and without issue, and also predeceases the natural mother. In the event of the death of an illegitimate, unmarried and without issue, any part of the illegitimates' estate inherited from the mother shall be inherited according to the statutes of descent and distribution.
A remedy is hereby created in favor of all illegitimates having any claim existing prior to July 1, 1981, concerning the estate of an intestate whose death occurred prior to such date by or on behalf of an illegitimate or an alleged illegitimate child to inherit from or through its natural father and any claim by a natural father to inherit from or through an illegitimate child shall be brought within three (3) years from and after July 1, 1981, and such time period shall run notwithstanding the minority of a child.
The remedy created herein is separate, complete and distinct, but cumulative with the remedies afforded illegitimates as provided by the Mississippi Uniform Law on Paternity; provided, however, the failure of an illegitimate to seek or obtain relief under the Mississippi Uniform Law on Paternity shall not diminish or abate the remedy created herein.
(4) The children of illegitimates and their descendants shall inherit from and through their mother and father according to the statutes of descent and distribution.
(5) Nothing in this section shall preclude the establishment of paternity solely for the purpose of the illegitimate receiving social security benefits on behalf of the illegitimates' natural father after one (1) year following the natural father's death.
(6) The biological father of any illegitimate described in this section, who is the biological father as a result of a rape offense committed by such father upon the biological mother of the deceased shall not be entitled to inherit from such illegitimate under this section.
SECTION 10. Section 71-3-27, Mississippi Code of 1972, is amended as follows:
71-3-27. Compensation under this chapter to aliens not residents (or about to become nonresidents) of the United States or Canada shall be in the same amount as provided for residents, except that dependents in any foreign country shall be limited to surviving wife and child or children or, if there be no surviving wife or child or children, to surviving father, except as any biological father described in Section 1, House Bill No. , 2015 Regular Session, or mother whom the employee has supported, either wholly or in part, for the period of one (1) year prior to the date of the injury, and except that the commission may, at its option or upon the application of the insurance carrier, commute all future installments of compensation to be paid to such aliens by payment of a lump sum equal to the present value of all future payments of compensation computed at four percent (4%) discount compounded annually.
SECTION 11. Section 71-3-25, Mississippi Code of 1972, is brought forward as follows:
71-3-25. If the injury causes death, the compensation shall be known as a death benefit and shall be payable in the amount and to or for the benefit of the persons following:
(a) An immediate lump sum payment of One Thousand Dollars ($1,000.00) to the surviving spouse, in addition to other compensation benefits.
(b) Reasonable funeral expenses not exceeding Five Thousand Dollars ($5,000.00) exclusive of other burial insurance or benefits.
(c) If there be a surviving spouse and no child of the deceased, to such surviving spouse thirty five percent (35%) of the average wages of the deceased during widowhood or dependent widowhood and, if there be a surviving child or children of the deceased, the additional amount of ten percent (10%) of such wages for each such child. In case of the death or remarriage of such surviving spouse, any surviving child of the deceased employee shall have his compensation increased to fifteen percent (15%) of such wages, provided that the total amount payable shall in no case exceed sixty six and two thirds percent (66 2/3%) of such wages, subject to the maximum limitations as to weekly benefits as set up in this chapter. The commission may, in its discretion, require the appointment of a guardian for the purpose of receiving the compensation of a minor dependent. In the absence of such a requirement, the appointment of a guardian for such purposes shall not be necessary, provided that if no legal guardian be appointed, payment to the natural guardian shall be sufficient.
(d) If there be a surviving child or children of the deceased but no surviving spouse, then for the support of each such child twenty five percent (25%) of the wages of the deceased, provided that the aggregate shall in no case exceed sixty six and two thirds percent (66 2/3%) of such wages, subject to the maximum limitations as to weekly benefits as set up in this chapter.
(e) If there be no surviving spouse or child, or if the amount payable to a surviving spouse and to children shall be less in the aggregate than sixty six and two thirds percent (66 2/3%) of the average wages of the deceased, subject to the maximum limitations as to weekly benefits as set up in this chapter, then for the support of grandchildren or brothers and sisters, if dependent upon the deceased at the time of the injury, fifteen percent (15%) of such wages for the support of each such person; and for the support of each parent or grandparent of the deceased, if dependent upon him at the time of injury, fifteen percent (15%) of such wages during such dependency. But in no case shall the aggregate amount payable under this subsection exceed the difference between sixty six and two thirds percent (66 2/3%) of such wages and the amount payable as hereinbefore provided to surviving spouse and for the support of surviving child or children, subject to the maximum limitations as to weekly benefits as set up in this chapter.
(f) The total weekly compensation payments to any or all beneficiaries in death cases shall not exceed the weekly benefits as set up in this chapter and shall in no case be paid for a longer period than four hundred fifty (450) weeks or for a greater amount than the multiple of four hundred fifty (450) weeks times sixty six and two thirds percent (66 2/3%) of the average weekly wage for the state.
(g) All questions of dependency shall be determined as of the time of the injury. A surviving spouse, child or children shall be presumed to be wholly dependent. All other dependents shall be considered on the basis of total or partial dependence as the facts may warrant.
SECTION 12. This act shall take effect and be in force from and after July 1, 2015.