MISSISSIPPI LEGISLATURE
2020 Regular Session
To: Judiciary A
By: Representative Bain
AN ACT TO AMEND SECTION 43-19-33, MISSISSIPPI CODE OF 1972, TO CLARIFY PROPER JURISDICTION FOR CHILD SUPPORT MATTERS; TO AMEND SECTIONS 93-9-9 AND 93-9-21, MISSISSIPPI CODE OF 1972, TO AUTHORIZE WRITTEN DECLARATION OF PATERNITY WHEN ALLEGED FATHER IS ABSENT FROM COURT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 43-19-33, Mississippi Code of 1972, is amended as follows:
43-19-33. (1) In lieu of
legal proceedings instituted to obtain support for a dependent child from the
responsible parent, a written stipulated agreement to support said child by
periodic payments executed by the responsible parent when acknowledged before a
clerk of the court having jurisdiction over such matters or a notary public and
filed with and approved by the judge of * * * the court having
jurisdiction over such matters shall have the same force and effect,
retroactively and prospectively, in accordance with the terms of said agreement
as an order of support entered by the court, and shall be enforceable and
subject to modification in the same manner as is provided by law for orders of
the court in such cases.
(2) In lieu of legal
proceedings instituted to establish paternity, a written admission of paternity
containing a stipulated agreement of support executed by the putative father of
the dependent child, when accompanied by a written * * * declaration in support of
establishing paternity * * * provided under penalty
of perjury by the mother of the dependent child, when acknowledged by the
putative father before a clerk of the court having jurisdiction over such
matters or a notary public and filed with and approved by the judge of * * * the court having jurisdiction
over such matters, shall have the same force and effect, retroactively and
prospectively, in accordance with the terms of said agreement, as an order of
filiation and support entered by the court, and shall be enforceable and
subject to modification in the same manner as is provided by law for orders of
the court in such cases.
(3) At any time after filing with the court having continuing jurisdiction of such matters of an acknowledgment of paternity in which a provision of support has not been entered, upon notice the defendant shall be required to appear in court at any time and place named therein, to show cause, if any he can, why the court should not enter an order for the support of the child by periodic payments. The order may include provisions for reimbursement for medical expenses incident to the pregnancy and the birth of the child, accrued maintenance and reasonable expenses of the action under this subsection on the acknowledgment of paternity previously filed with said court. Notice by the department to the defendant shall be given by certified mail, restricted delivery, return receipt requested at his last known mailing address and without the requirement of a summons being issued, and shall be deemed complete as of the date of delivery as evidenced by the return receipt. The required notice may also be delivered by personal service in accordance with Rule 4 of the Mississippi Rules of Civil Procedure insofar as service of an administrative order or notice is concerned. Provided, that in the case of a child who, upon reaching the age of twenty-one (21) years, is mentally or physically incapable of self-support, the putative father shall not be relieved of the duty of support unless said child is a long-term patient in a facility owned or operated by the State of Mississippi. The prior judgment as to paternity shall be res judicata as to that issue and shall not be reconsidered by the court.
(4) Such agreements of support, acknowledgments and affirmations of paternity and support shall be sworn to and shall be binding on the person executing the same whether he be an adult or a minor and may include provisions for the reimbursement of medical expenses incident to the pregnancy and birth of the child, accrued maintenance and reasonable expenses of any action previously filed before the court.
(5) In lieu of legal
proceedings instituted to enforce an order for support, a written stipulated
agreement for the provision of periodic payments towards an arrearage executed
by the defendant when acknowledged before a clerk of the court having
jurisdiction over such matters or a notary public and filed with and approved
by the judge of * * * the court having jurisdiction over such matters
shall have the same force and effect, retroactively and prospectively, in
accordance with the terms of said agreement as a judgment for overdue support
entered by the court, and shall be enforceable and subject to modification in
the same manner as is provided by law for orders of the court in such cases.
(6) All agreements entered into under the provisions as set forth hereinabove shall be filed by the clerk of the court having jurisdiction over such matters in the county in which they are entered and filing fees shall be taxed to the responsible parent.
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. 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 process 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. All costs and fees shall be ordered paid to the Department of Human Services in all cases successfully prosecuted with a minimum of Two Hundred Fifty Dollars ($250.00) in attorney's fees or an amount determined by the court without submitting an affidavit. Proceedings may be instituted 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, 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 * * * a written declaration in
support of establishing paternity made under penalty of perjury 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 Board of Health and receipt by the State Board 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) One (1) year; 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 one-year 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) During the one-year time period specified in subsection (4)(a)(i) of this section, the alleged father may request genetic testing through the Department of Human Services in accordance with the provisions of Section 93-9-21.
(d) The one-year time limit, specified in subsection (4)(a)(i) of this section, for the right of the alleged father to rescind the signed voluntary acknowledgement of paternity shall be tolled from the date the alleged father files his formal application for genetic testing with the Department of Human Services until the date the test results are revealed to the alleged father by the department. After the one-year time period has expired, not including any period of time tolled for the purpose of acquiring genetic testing through the department, the provisions of subsection (4)(b) of this section shall apply.
SECTION 3. Section 93-9-21, Mississippi Code of 1972, is amended as follows:
93-9-21. (1) (a) In all
cases brought pursuant to Title IV-D of the Social Security Act, upon * * * written declarations
of the mother, putative father, or the Department of Human Services made
under penalty of perjury alleging paternity, the department may issue an
administrative order for paternity testing which requires the mother, putative
father and minor child to submit themselves for paternity testing. The
department shall send the putative father a copy of the Administrative Order
and a Notice for Genetic Testing which shall include the date, time and place
for collection of the putative father's genetic sample. The department shall
also send the putative father a Notice and Complaint to Establish Paternity
which shall specify the date and time certain of the court hearing by certified
mail, restricted delivery, return receipt requested. Notice shall be deemed
complete as of the date of delivery as evidenced by the return receipt. The
required notice may also be delivered by personal service upon the putative
father in accordance with Rule 4 of the Mississippi Rules of Civil Procedure
insofar as service of an administrative order or notice is concerned.
(b) If the putative father does not submit to genetic testing, the court shall, without further notice, on the date and time previously set through the notice for hearing, review the documentation of the refusal to submit to genetic testing and make a determination as to whether the complaint to establish paternity should be granted. The refusal to submit to such testing shall create a rebuttable presumption of an admission to paternity by the putative father.
(c) In any case in which the Department of Human Services orders genetic testing, the department is required to advance costs of such tests subject to recoupment from the alleged father if paternity is established. If either party challenges the original test results, the department shall order additional testing at the expense of the challenging party.
(2) In any case in which paternity has not been established, the court, on its own motion or on motion of the plaintiff or the defendant, shall order the mother, the alleged father and the child or children to submit to genetic tests and any other tests which reasonably prove or disprove the probability of paternity. If paternity has been previously established, the court shall only order genetic testing pursuant to Section 93-9-10.
If any party refuses to submit to such tests, the court may resolve the question of paternity against such party or enforce its order for genetic testing as the rights of others and the interest of justice require.
(3) Any party calling a witness or witnesses for the purpose of testifying that they had sexual intercourse with the mother at any possible time of conception of the child whose paternity is in question shall provide all other parties with the name and address of the witness at least twenty (20) days before the trial. If a witness is produced at the hearing for the purpose provided in this subsection but the party calling the witness failed to provide the twenty-day notice, the court may adjourn the proceeding for the purpose of taking a genetic test of the witness before hearing the testimony of the witness if the court finds that the party calling the witness acted in good faith.
(4) The court shall ensure that all parties are aware of their right to request genetic tests under this section.
(5) (a) Genetic tests shall be performed by a laboratory selected from the approved list as prepared and maintained by the Department of Human Services.
(b) The Department of Human Services shall publicly issue a request for proposals, and such requests for proposals when issued shall contain terms and conditions relating to price, technology and such other matters as are determined by the department to be appropriate for inclusion or required by law. After responses to the request for proposals have been duly received, the department shall select the lowest and best bid(s) on the basis of price, technology and other relevant factors and from such proposals, but not limited to the terms thereof, negotiate and enter into contract(s) with one or more of the laboratories submitting proposals. The department shall prepare a list of all laboratories with which it has contracted on these terms. The list and any updates thereto shall be distributed to all chancery clerks. To be eligible to appear on the list, a laboratory must meet the following requirements:
(i) The laboratory is qualified to do business within the State of Mississippi;
(ii) The laboratory can provide test results in less than fourteen (14) days; and
(iii) The laboratory must have participated in the competitive procurement process.
SECTION 4. This act shall take effect and be in force from and after July 1, 2020.