46th legislature - STATE OF NEW MEXICO - first session, 2003

RELATING TO DOMESTIC AFFAIRS; AMENDING THE UNIFORM PARENTAGE ACT BY ADDING NEW SECTIONS TO REQUIRE GENETIC TESTING FOR NAMED FATHERS OF CHILDREN BORN OUT OF WEDLOCK; PROVIDING FOR A GENETIC TESTING WAIVER ATTACHMENT; PROVIDING FOR EXCEPTIONS TO THE RIGHT TO GENETIC TESTING FOR DETERMINING PATERNITY.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. Section 24-14-13 NMSA 1978 (being Laws 1961, Chapter 44, Section 13, as amended) is amended to read:

"24-14-13. BIRTH REGISTRATION.--

A. A certificate of birth for each live birth [which] that occurs in this state shall be filed with the vital statistics bureau of the public health division of the department or as otherwise directed by the state registrar within ten days after the birth and shall be registered if it has been completed and filed in accordance with this section. When a birth, however, occurs on a moving conveyance, a birth certificate shall be registered in this state and the place where the child is first removed shall be considered the place of birth.

B. When a birth occurs in an institution, the person in charge of the institution or his designated representative shall obtain the personal data, prepare the certificate of birth, secure the signatures required and file it as directed in this section. The physician or other person in attendance shall certify the medical information required by the certificate of birth within ten working days after the birth in accordance with policies established by the institution where the birth occurred. The person in charge of the institution or his designee shall complete and sign the certificate of birth.

C. When a birth occurs outside an institution, the certificate of birth shall be prepared and filed by one of the following in the indicated order of priority:

(1) the physician in attendance at or immediately after the birth;

(2) any other person in attendance at or immediately after the birth [or in the absence of this person]; or

(3) the father, the mother or, in the absence of the father and the inability of the mother, the person in charge of the premises where the birth occurred.

D. If the mother was married at the time of either conception or birth, the name of the husband shall be entered on the certificate of birth as the father of the child, unless paternity has been determined pursuant to Subsection F or G of this section or by a court, in which case the name of the father as determined by the court shall be entered.

E. If the mother [was] is not married at the time of [either conception or] birth, [but] the named father [has signed an acknowledgment of paternity as provided by this section, the father's name, date of birth and social security number shall be entered on the acknowledgement of paternity] shall submit to a genetic test as provided in Section 40-11-24 NMSA 1978 to determine paternity. The name of the father shall not be entered on the certificate of birth without the written consent of the mother and the person to be named as the father, unless a determination of paternity has been established as provided in section 40-11-24 NMSA 1978 or made by a court, in which case the name of the father as determined by the court shall be entered.

F. At or before the birth of a child to an unmarried woman, the person in charge of the institution, a designated representative, the attending physician or midwife shall

[(1) provide an opportunity for the child's mother and natural father to complete an acknowledgement of paternity. The completed affidavit shall be filed with the vital statistics bureau of the public health division of the department. The acknowledgement shall contain or have attached to it:

(a) a sworn statement by the mother consenting to the assertion of paternity;

(b) a sworn statement by the father that he is the natural father of the child;

(c) written information, furnished by the human services department, explaining the implications of signing, including legal parental rights and responsibilities; and

(d) the social security numbers of both parents;

(2)] provide written information, furnished by the human services department, to the mother and father or [putative] named father, regarding the [benefits] requirement of having the child's paternity established as provided in Section 40-11-24 NMSA 1978 and of the availability of paternity establishment services and child support enforcement services.

G. If a married mother claims that her husband is not the father of the child, the husband agrees that he is not the father and the putative father agrees that he is the father, an acknowledgement of paternity may be signed by the respective parties and duly notarized. Upon filing this affidavit with the state registrar, the name of the [nonhusband] putative father shall be entered on the certificate of birth as the father.

H. Pursuant to an interagency agreement for proper reimbursement, the vital statistics bureau of the public health division of the department shall make available to the human services department the birth certificate, the mother's and father's social security numbers and paternity acknowledgements. The human services department shall use these records only in conjunction with its duties as the state IV-D agency responsible for the child support program under Title IV-D of the federal Social Security Act."

Section 2. Section 40-11-1 NMSA 1978 (being Laws 1986, Chapter 47, Section 1) is amended to read:

"40-11-1. SHORT TITLE.--[This act] Chapter 40, Article 11 NMSA 1978 may be cited as the "Uniform Parentage Act"."

Section 3. Section 40-11-5 NMSA 1978 (being Laws 1986, Chapter 47, Section 5, as amended) is amended to read:

"40-11-5. PRESUMPTION OF PATERNITY.--

A. A man [is] shall be presumed to be the natural father of a child if:

(1) he and the child's natural mother are or have been married to each other and the child is born during the marriage or within three hundred days after the marriage is terminated by death, annulment, declaration of invalidity or dissolution of marriage or after a decree of separation is entered by a court;

(2) before the child's birth, he and the child's natural mother have attempted to marry each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and:

(a) if the attempted marriage could be declared invalid only by a court, the child is born during the attempted marriage or within three hundred days after its termination by death, annulment, declaration of invalidity or divorce; or

(b) if the attempted marriage is invalid without a court order, the child is born within three hundred days after the termination of cohabitation;

(3) after the child's birth, he and the child's natural mother have married or attempted to marry each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and:

(a) he has acknowledged his paternity of the child in writing filed with the vital statistics bureau of the public health division of the department of health;

(b) with his consent, he is named as the child's father on the child's birth certificate; or

(c) he is obligated to support the child under a written voluntary promise or by court order;

(4) except as provided in Section 40-11-24 NMSA 1978, while the child is under the age of majority, he openly holds out the child as his natural child and has established a personal, financial or custodial relationship with the child; or

(5) except as provided in Section 40-11-24 NMSA 1978, he acknowledges his paternity of the child pursuant to Section 24-14-13 NMSA 1978 or in writing filed with the vital statistics bureau of the public health division of the department of health, which shall promptly inform the mother of the filing of the acknowledgment, and, within a reasonable time after being informed of the filing, she does not dispute the acknowledgment. In order to enforce the rights of custody or visitation, a man presumed to be the father as a result of filing a written acknowledgment shall seek an appropriate judicial order in an action filed for that purpose. A signed voluntary acknowledgment of paternity is considered a legal finding of paternity, subject to the right of any signatory to rescind the acknowledgment within the earlier of:

(a) sixty days from the date of signing; or

(b) the date of an administrative or judicial proceeding relating to the child, including a proceeding to establish a support order, to which the signatory is a party. After sixty days from the date of signing, the acknowledgment may be challenged in court only on the grounds of fraud, duress or material mistake of fact, with the burden of proof upon the challenger, although legal responsibilities arising from signing the acknowledgment may not be suspended during the challenge, except upon a showing of good cause. Judicial or administrative proceedings are not required to ratify an unchallenged acknowledgment.

B. If two or more men are presumed under this section to be the child's father, an acknowledgment by one of them may be effective only with the written consent of the other or pursuant to Subsection C of this section.

C. A presumption under this section may be rebutted in an appropriate action only by clear and convincing evidence. If two or more men are presumed under this section to be the father of the same child, paternity shall be established as provided in the Uniform Parentage Act. If the presumption has been rebutted with respect to one man, paternity of the child by another man may be determined in the same action if he has been made a party.

D. A man [is] shall be presumed to be the natural father of a child if, pursuant to blood or genetic tests properly performed by a qualified person and evaluated by an expert, including deoxyribonucleic acid (DNA) probe technique tests under the Uniform Parentage Act, the probability of his being the father is ninety-nine percent or higher.

E. Except as provided in Section 40-11-24 NMSA 1978, the voluntary acknowledgment of paternity [must] shall be recognized as a basis for seeking a support order without requiring any further proceedings to establish paternity.

F. Full faith and credit [must] shall be given to determination of paternity made by other states, including acknowledgments of paternity."

Section 4. A new section of the Uniform Parentage Act, Section 40-11-24 NMSA 1978, is enacted to read:

"40-11-24. [NEW MATERIAL] CHILDREN BORN OUT OF WEDLOCK--GENETIC TESTING REQUIREMENT.--

A. A named father of a child born out of wedlock shall be required to submit to a genetic test as provided in Section 40-11-12 NMSA 1978 prior to signing an acknowledgment of paternity form as provided in Section 24-14-13 NMSA 1978.

B. The named father's genetic test results shall be compared to the child's genetic test results to confirm paternity.

C. The acknowledgment of paternity form or a signed voluntary acknowledgment of paternity shall have no legal effect if the genetic testing results prove that the named father of a child born out of wedlock is not the natural father of the child."

Section 5. A new section of the Uniform Parentage Act, Section 40-11-25 NMSA 1978, is enacted to read:

"40-11-25. [NEW MATERIAL] NOTICE OF RIGHT TO GENETIC TESTING.--

A. The acknowledgment of paternity form shall contain a separate genetic testing waiver attachment that shall be presented to all presumed fathers of children born in wedlock. The genetic testing waiver attachment shall clearly state that the presumed father may have genetic testing completed to determine paternity. The genetic testing waiver attachment shall contain an explanation that a presumed father who signs both the genetic testing waiver attachment and the acknowledgment of paternity form shall, after two years from the date of signing both forms, forfeit his right to challenge paternity.

B. If a presumed father of a child born in wedlock is presented with the acknowledgment of paternity form and a genetic testing waiver attachment while at the hospital when the child is born, the person presenting the presumed father the form and waiver attachment shall, in private, explain the meaning of the form and waiver attachment to the presumed father.

C. If a presumed father chooses not to sign the genetic testing waiver attachment, the presumed father may submit to a genetic test that shall be processed and compared to the genetic test results of the child. Expenses to complete the testing shall be paid for by the presumed father.

D. An acknowledgment of paternity form shall have no legal effect for a presumed father of a child born in wedlock unless the presumed father also signs a genetic testing waiver attachment. If the results of genetic testing confirm that the presumed father is the natural father, then a signed genetic testing waiver attachment shall not be required for the acknowledgment of paternity form to take effect.

E. The provisions of this section shall not apply when a child born in wedlock has been conceived as a result of artificial insemination pursuant to the provisions of Section 40-11-6 NMSA 1978 or as a result of other means of assisted reproductive technology whereby the woman, upon written and signed consent of her husband, is impregnated with semen donated by a man not her husband."

Section 6. A new section of the Uniform Parentage Act, Section 40-11-26 NMSA 1978, is enacted to read:

"40-11-26. [NEW MATERIAL] GENETIC TESTING PRIOR TO ISSUANCE OF CHILD SUPPORT ORDER.--

A. Prior to the issuance of a child support order against a named father of a child born out of wedlock who has not signed an acknowledgment of paternity form, the court shall order the named father to submit to genetic testing to determine paternity. If genetic testing concludes that the named father is not the biological father of the child, the court shall not issue a child support order against him.

B. A child support order entered against a presumed father of a child born in wedlock shall provide the presumed father with a right to have genetic testing completed and the right shall be clearly explained to the presumed father by the court. The right shall not apply if:

(1) the presumed father's child was born prior to the effective date of the provisions of this act and the presumed father has signed, within the last two years, an acknowledgment of paternity form; or

(2) the presumed father's child was born after the effective date of the provisions of this act and the presumed father has signed both an acknowledgment of paternity form and a genetic testing waiver attachment as provided in Section 40-11-25 NMSA 1978 and two years have passed since the date the presumed father signed the genetic testing waiver attachment."

Section 7. A new section of the Uniform Parentage Act, Section 40-11-27 NMSA 1978, is enacted to read:

"40-11-27. [NEW MATERIAL] COSTS.--The department of health shall work with the appropriate federal agencies to determine how much of the genetic testing provided for in this act may be reimbursed pursuant to the existing federal government testing reimbursement rules."