SENATE BILL 1057
47th legislature - STATE OF NEW MEXICO - first session, 2005
INTRODUCED BY
Cisco McSorley
AN ACT
RELATING TO FAMILY LAW; ENACTING THE UNIFORM PARENTAGE ACT; PROVIDING FOR ESTABLISHMENT OF PARENT-CHILD RELATIONSHIP, DETERMINATION AND REGISTRATION OF PATERNITY, GENETIC TESTING, REGULATION OF ASSISTED REPRODUCTION AND GESTATIONAL AGREEMENTS; AMENDING, REPEALING AND ENACTING SECTIONS OF THE NMSA 1978.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
ARTICLE 1
GENERAL PROVISIONS AND DEFINITIONS
Section 1-101. [NEW MATERIAL] SHORT TITLE.--Sections 1-101 through 9-903 of this act may be cited as the "Uniform Parentage Act".
Section 1-102. [NEW MATERIAL] DEFINITIONS.--As used in the Uniform Parentage Act:
A. "acknowledged father" means a man who has established a father-child relationship pursuant to Article 3 of the Uniform Parentage Act;
B. "adjudicated father" means a man who has been adjudicated by a court of competent jurisdiction to be the father of a child;
C. "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. The term does not include:
(1) a presumed father;
(2) a man whose parental rights have been terminated or declared not to exist; or
(3) a male donor;
D. "assisted reproduction" means a method of causing pregnancy other than sexual intercourse. The term includes:
(1) intrauterine insemination;
(2) donation of eggs;
(3) donation of embryos;
(4) in-vitro fertilization and transfer of embryos; and
(5) intracytoplasmic sperm injection;
E. "bureau" means the vital statistics bureau of the public health division of the department of health;
F. "child" means a person of any age whose parentage may be determined pursuant to the Uniform Parentage Act;
G. "commence" means to file the initial pleading seeking an adjudication of parentage in district court;
H. "determination of parentage" means the establishment of the parent-child relationship by the signing of a valid acknowledgment of paternity pursuant to Article 3 of the Uniform Parentage Act or adjudication by the court;
I. "donor" means a person who produces eggs or sperm used for assisted reproduction, whether or not for consideration. The term does not include:
(1) a husband who provides sperm, or a wife who provides eggs, to be used for assisted reproduction by the wife;
(2) a woman who gives birth to a child by means of assisted reproduction, except as otherwise provided in Article 8 of the Uniform Parentage Act; or
(3) a parent pursuant to Article 7 of the Uniform Parentage Act or an intended parent pursuant to Article 8 of the Uniform Parentage Act;
J. "ethnic or racial group" means, for purposes of genetic testing, a recognized group that a person identifies as all or part of the person's ancestry or that is so identified by other information;
K. "genetic testing" means an analysis of genetic markers to exclude or identify a man as the father or a woman as the mother of a child. The term includes an analysis of one or a combination of the following:
(1) deoxyribonucleic acid; and
(2) blood-group antigens, red-cell antigens, human-leukocyte antigens, serum enzymes, serum proteins or red-cell enzymes;
L. "gestational agreement" means an agreement described in Section 8-801 of the Uniform Parentage Act;
M. "gestational mother" means an adult woman who gives birth to a child pursuant to a gestational agreement;
N. "man" means a male person of any age;
O. "parent" means a person who has established a parent-child relationship pursuant to Section 2-201 of the Uniform Parentage Act;
P. "parent-child relationship" means the legal relationship between a child and a parent of the child. The term includes the mother-child relationship and the father-child relationship;
Q. "paternity index" means the likelihood of paternity calculated by computing the ratio between:
(1) the likelihood that the tested man is the father, based on the genetic markers of the tested man, mother and child, conditioned on the hypothesis that the tested man is the father of the child; and
(2) the likelihood that the tested man is not the father, based on the genetic markers of the tested man, mother and child, conditioned on the hypothesis that the tested man is not the father of the child and that the father is of the same ethnic or racial group as the tested man;
R. "presumed father" means a man who, by operation of law pursuant to Section 2-204 of the Uniform Parentage Act, is recognized as the father of a child until that status is rebutted or confirmed in a judicial proceeding;
S. "probability of paternity" means the measure, for the ethnic or racial group to which the alleged father belongs, of the probability that the man in question is the father of the child, compared with a random, unrelated man of the same ethnic or racial group, expressed as a percentage incorporating the paternity index and a prior probability;
T. "record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form;
U. "signatory" means a person who authenticates a record and is bound by its terms;
V. "state" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands or any territory or insular possession subject to the jurisdiction of the United States; and
W. "support-enforcement agency" means a public official or agency authorized to seek:
(1) enforcement of support orders or laws relating to the duty of support;
(2) establishment or modification of child support;
(3) determination of parentage; or
(4) location of child-support obligors and their income and assets.
Section 1-103. [NEW MATERIAL] SCOPE OF ACT--CHOICE OF LAW.--
A. The Uniform Parentage Act applies to determination of parentage in New Mexico.
B. The district court shall apply the law of New Mexico to adjudicate the parent-child relationship. The applicable law does not depend on:
(1) the place of birth of the child; or
(2) the past or present residence of the child.
C. The Uniform Parentage Act does not create, enlarge or diminish parental rights or duties pursuant to other law of New Mexico.
Section 1-104. [NEW MATERIAL] COURT OF THIS STATE.--The district court is authorized to adjudicate parentage pursuant to the Uniform Parentage Act.
Section 1-105. [NEW MATERIAL] PROTECTION OF PARTICIPANTS.--Proceedings pursuant to the Uniform Parentage Act are subject to other laws of New Mexico governing the health, safety, privacy and liberty of a child or other person who could be jeopardized by disclosure of identifying information, including address, telephone number, place of employment, social security number and the child's daycare facility and school.
Section 1-106. [NEW MATERIAL] DETERMINATION OF MATERNITY.--Provisions of the Uniform Parentage Act relating to determination of paternity apply to determinations of maternity.
ARTICLE 2
PARENT-CHILD RELATIONSHIP
Section 2-201. [NEW MATERIAL] ESTABLISHMENT OF PARENT-CHILD RELATIONSHIP.--
A. The mother-child relationship is established between a woman and a child by:
(1) the woman's having given birth to the child, except as otherwise provided in Article 8 of the Uniform Parentage Act;
(2) an adjudication of the woman's maternity;
(3) adoption of the child by the woman; or
(4) an adjudication confirming the woman as a parent of a child born to a gestational mother if the gestational agreement was validated pursuant to Article 8 of the Uniform Parentage Act or is enforceable pursuant to other law.
B. The father-child relationship is established between a man and a child by:
(1) an unrebutted presumption of the man's paternity of the child pursuant to Section 2-204 of the Uniform Parentage Act;
(2) an effective acknowledgment of paternity by the man pursuant to Article 3 of the Uniform Parentage Act, unless the acknowledgment has been rescinded or successfully challenged;
(3) an adjudication of the man's paternity;
(4) adoption of the child by the man;
(5) the man's having consented to assisted reproduction by a woman pursuant to Article 7 of the Uniform Parentage Act that resulted in the birth of the child; or
(6) an adjudication confirming the man as a parent of a child born to a gestational mother if the gestational agreement was validated pursuant to Article 8 of the Uniform Parentage Act or is enforceable pursuant to other law.
Section 2-202. [NEW MATERIAL] NO DISCRIMINATION BASED ON MARITAL STATUS.--A child born to parents who are not married to each other has the same rights pursuant to the law as a child born to parents who are married to each other.
Section 2-203. [NEW MATERIAL] CONSEQUENCES OF ESTABLISHMENT OF PARENTAGE.--Unless parental rights are terminated or relinquished, a parent-child relationship established pursuant to the Uniform Parentage Act applies for all purposes, except as otherwise specifically provided by other law of New Mexico.
Section 2-204. [NEW MATERIAL] PRESUMPTION OF PATERNITY.--
A. A man is presumed to be the father of a child if:
(1) he and the mother of the child are married to each other and the child is born during the marriage;
(2) he and the mother of the child were married to each other and the child is born within three hundred days after the marriage is terminated by death, annulment, declaration of invalidity, divorce or after a decree of separation;
(3) 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 three hundred days after its termination by death, annulment, declaration of invalidity, divorce or after a decree of separation;
(4) 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, and he voluntarily asserted his paternity of the child, and:
(a) the assertion is in a record filed with the bureau;
(b) he agreed to be and is named as the child's father on the child's birth certificate; or
(c) he promised in a record to support the child as his own; or
(5) for the first two years of the child's life, he resided in the same household with the child and openly held out the child as his own.
B. A presumption of paternity established pursuant to this section may be rebutted only by an adjudication pursuant to Article 6 of the Uniform Parentage Act.
ARTICLE 3
VOLUNTARY ACKNOWLEDGMENT OF PATERNITY
Section 3-301. [NEW MATERIAL] ACKNOWLEDGMENT OF PATERNITY.--The mother of a child and a man claiming to be the genetic father of the child may sign an acknowledgment of paternity with intent to establish the man's paternity.
Section 3-302. [NEW MATERIAL] EXECUTION OF ACKNOWLEDGMENT OF PATERNITY.--
A. An acknowledgment of paternity shall:
(1) be in a record;
(2) be signed or otherwise authenticated under penalty of perjury by the mother and by the man seeking to establish his paternity;
(3) state that the child whose paternity is being acknowledged:
(a) does not have a presumed father or has a presumed father whose full name is stated; and
(b) does not have another acknowledged or adjudicated father;
(4) state whether there has been genetic testing and, if so, that the acknowledging man's claim of paternity is consistent with the results of the testing; and
(5) state that the signatories understand that the acknowledgment is the equivalent of a judicial adjudication of paternity of the child and that a challenge to the acknowledgment is permitted only under limited circumstances and is barred after two years.
B. An acknowledgment of paternity is void if it:
(1) states that another man is a presumed father, unless a denial of paternity signed or otherwise authenticated by the presumed father is filed with the bureau;
(2) states that another man is an acknowledged or adjudicated father; or
(3) falsely denies the existence of a presumed, acknowledged or adjudicated father of the child.
C. A presumed father may sign or otherwise authenticate an acknowledgment of paternity.
Section 3-303. [NEW MATERIAL] DENIAL OF PATERNITY.--A presumed father may sign a denial of his paternity. The denial is valid only if:
A. an acknowledgment of paternity signed or otherwise authenticated by another man is filed pursuant to Section 3-305 of the Uniform Parentage Act;
B. the denial is in a record and is signed or otherwise authenticated under penalty of perjury; and
C. the presumed father has not previously:
(1) acknowledged his paternity, unless the previous acknowledgment has been rescinded pursuant to Section 3-307 of the Uniform Parentage Act or successfully challenged pursuant to Section 3-308 of the Uniform Parentage Act; or
(2) been adjudicated to be the father of the child.
Section 3-304. [NEW MATERIAL] RULES FOR ACKNOWLEDGMENT AND DENIAL OF PATERNITY.--
A. An acknowledgment of paternity and a denial of paternity may be contained in a single document or may be signed in counterparts, and may be filed separately or simultaneously. If the acknowledgment and denial are both necessary, neither is valid until both are filed.
B. An acknowledgment of paternity or a denial of paternity may be signed before the birth of the child.
C. Subject to Subsection A of this section, an acknowledgment of paternity or denial of paternity takes effect on the birth of the child or the filing of the document with the bureau, whichever occurs later.
D. An acknowledgment of paternity or denial of paternity signed by a minor is valid if it is otherwise in compliance with the Uniform Parentage Act.
Section 3-305. [NEW MATERIAL] EFFECT OF ACKNOWLEDGMENT OR DENIAL OF PATERNITY.--
A. Except as otherwise provided in Sections 3-307 and 3-308 of the Uniform Parentage Act, a valid acknowledgment of paternity filed with the bureau is equivalent to an adjudication of paternity of a child and confers upon the acknowledged father all of the rights and duties of a parent.
B. Except as otherwise provided in Sections 3-307 and 3-308 of the Uniform Parentage Act, a valid denial of paternity by a presumed father filed with the bureau in conjunction with a valid acknowledgment of paternity is equivalent to an adjudication of the nonpaternity of the presumed father and discharges the presumed father from all rights and duties of a parent.
Section 3-306. [NEW MATERIAL] NO FILING FEE.--The bureau shall not charge for filing an acknowledgment of paternity or denial of paternity.
Section 3-307. [NEW MATERIAL] PROCEEDING FOR RESCISSION.--A signatory may rescind an acknowledgment of paternity or denial of paternity by commencing a proceeding to rescind before the earlier of:
A. sixty days after the effective date of the acknowledgment or denial, as provided in Section 3-304 of the Uniform Parentage Act; or
B. the date of the first hearing, in a proceeding to which the signatory is a party, before a court to adjudicate an issue relating to the child, including a proceeding that establishes support.
Section 3-308. [NEW MATERIAL] CHALLENGE AFTER EXPIRATION OF PERIOD FOR RESCISSION.--
A. After the period for rescission pursuant to Section 3-307 of the Uniform Parentage Act has expired, a signatory of an acknowledgment of paternity or denial of paternity may commence a proceeding to challenge the acknowledgment or denial only:
(1) on the basis of fraud, duress or material mistake of fact; and
(2) within two years after the acknowledgment or denial is filed with the bureau.
B. A party challenging an acknowledgment of paternity or denial of paternity has the burden of proof.
Section 3-309. [NEW MATERIAL] PROCEDURE FOR RESCISSION OR CHALLENGE.--
A. Every signatory to an acknowledgment of paternity and any related denial of paternity shall be made a party to a proceeding to rescind or challenge the acknowledgment or denial.
B. For the purpose of rescission of, or challenge to, an acknowledgment of paternity or denial of paternity, a signatory submits to personal jurisdiction of this state by signing the acknowledgment or denial, effective upon the filing of the document with the bureau.
C. Except for good cause shown, during the pendency of a proceeding to rescind or challenge an acknowledgment of paternity or denial of paternity, the district court may not suspend the legal responsibilities of a signatory arising from the acknowledgment, including the duty to pay child support.
D. A proceeding to rescind or to challenge an acknowledgment of paternity or denial of paternity shall be conducted in the same manner as a proceeding to adjudicate parentage pursuant to Article 6 of the Uniform Parentage Act.
E. At the conclusion of a proceeding to rescind or challenge an acknowledgment of paternity or denial of paternity, the court shall order the bureau to amend the birth record of the child, if appropriate.
Section 3-310. [NEW MATERIAL] RATIFICATION BARRED.--A court or administrative agency conducting a judicial or administrative proceeding is not required or permitted to ratify an unchallenged acknowledgment of paternity.
Section 3-311. [NEW MATERIAL] FULL FAITH AND CREDIT--ACKNOWLEDGEMENT OR DENIAL OF PATERNITY.--A court of this state shall give full faith and credit to an acknowledgment of paternity or denial of paternity effective in another state if the acknowledgment or denial has been signed and is otherwise in compliance with the law of the other state.
Section 3-312. [NEW MATERIAL] FORMS FOR ACKNOWLEDGMENT AND DENIAL OF PATERNITY.--
A. The bureau shall prescribe forms for the acknowledgment of paternity and the denial of paternity.
B. A valid acknowledgment of paternity or denial of paternity is not affected by a later modification of the prescribed form.
Section 3-313. [NEW MATERIAL] RELEASE OF INFORMATION.--The bureau may release information relating to the acknowledgment of paternity or denial of paternity to a signatory of the acknowledgment or denial and to courts and to other agencies as permitted pursuant to the provisions of Chapter 24, Article 14 NMSA 1978.
Section 3-314. [NEW MATERIAL] ADOPTION OF RULES.--The bureau may adopt rules to implement the provisions of this article.
ARTICLE 4
REGISTRY OF PATERNITY
PART 1 - GENERAL PROVISIONS
Section 4-401. [NEW MATERIAL] ESTABLISHMENT OF REGISTRY.--A registry of paternity is established in the bureau. The putative father registry established pursuant to the provisions of Section 32A-5-20 NMSA 1978 shall become a part of the registry of paternity for all purposes.
Section 4-402. [NEW MATERIAL] REGISTRATION FOR NOTIFICATION.--
A. Except as otherwise provided in Subsection B of this section or Section 4-405 of the Uniform Parentage Act, a man who desires to be notified of a proceeding for adoption of or termination of parental rights regarding a child that he may have fathered shall register in the registry of paternity before the birth of the child or within ten days after the birth.
B. A man is not required to register if:
(1) a father-child relationship between the man and the child has been established pursuant to the Uniform Parentage Act or other law; or
(2) the man commences a proceeding to adjudicate his paternity before the district court has terminated his parental rights.
C. A registrant shall promptly notify the registry in a record of any change in the information registered. The bureau shall incorporate all new information received into its records but need not affirmatively seek to obtain current information for incorporation in the registry.
Section 4-403. [NEW MATERIAL] NOTICE OF PROCEEDING.--Notice of a proceeding for the adoption of or termination of parental rights regarding a child shall be given to a registrant who has timely registered. Notice shall be given in a manner prescribed for service of process in a civil action.
Section 4-404. [NEW MATERIAL] TERMINATION OF PARENTAL RIGHTS--CHILD UNDER ONE YEAR OF AGE.--The parental rights of a man who may be the father of a child may be terminated without notice if:
A. the child has not attained one year of age at the time of the termination of parental rights;
B. the man did not register timely with the bureau; and
C. the man is not exempt from registration pursuant to Section 4-402 of the Uniform Parentage Act.
Section 4-405. [NEW MATERIAL] TERMINATION OF PARENTAL RIGHTS--CHILD AT LEAST ONE YEAR OF AGE.--
A. If a child has attained one year of age, notice of a proceeding for adoption of or termination of parental rights regarding the child shall be given to every alleged father of the child, whether or not he has registered with the bureau.
B. Notice shall be given in a manner prescribed for service of process in a civil action.
PART 2 - OPERATION OF REGISTRY
Section 4-411. [NEW MATERIAL] REQUIRED FORM.--The bureau shall prepare a form for registering with the bureau. The form shall require the signature of the registrant. The form shall state that:
A. the form is signed under penalty of perjury;
B. a timely registration entitles the registrant to notice of a proceeding for adoption of the child or termination of the registrant's parental rights;
C. a timely registration does not commence a proceeding to establish paternity;
D. the information disclosed on the form may be used against the registrant to establish paternity;
E. services to assist in establishing paternity are available to the registrant through the support-enforcement agency;
F. the registrant should also register in another state if conception or birth of the child occurred in the other state;
G. information on registries of other states is available from those states; and
H. procedures exist to rescind the registration of a claim of paternity.
Section 4-412. [NEW MATERIAL] FURNISHING OF INFORMATION--CONFIDENTIALITY.--
A. The bureau need not seek to locate the mother of a child who is the subject of a registration, but the bureau shall send a copy of the notice of registration to a mother if she has provided an address.
B. Information contained in the registry is confidential and may be released on request only to:
(1) a court or a person designated by the court;
(2) the mother of the child who is the subject of the registration;
(3) an agency authorized by other law to receive the information;
(4) a licensed child-placing agency;
(5) a support-enforcement agency;
(6) a party or the party's attorney of record in a proceeding pursuant to the Uniform Parentage Act or in a proceeding for adoption of or for termination of parental rights regarding a child who is the subject of the registration; and
(7) the registry of paternity in another state.
Section 4-413. [NEW MATERIAL] PENALTY FOR RELEASING INFORMATION.--A person commits a fourth degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978 if the person intentionally releases information from the registry to another person not authorized to receive the information pursuant to Section 4-412 of the Uniform Parentage Act.
Section 4-414. [NEW MATERIAL] RESCISSION OF REGISTRATION.--A registrant may rescind his registration at any time by sending to the registry a rescission in a record signed or otherwise authenticated by him and witnessed or notarized.
Section 4-415. [NEW MATERIAL] UNTIMELY REGISTRATION.--If a man registers more than thirty days after the birth of the child, the bureau shall notify the registrant that on its face his registration was not timely filed.
Section 4-416. [NEW MATERIAL] FEES FOR REGISTRY.--
A. A fee may not be charged for filing a registration or a rescission of registration.
B. Except as otherwise provided in Subsection C of this section, the bureau may charge a reasonable fee for making a search of the registry and for furnishing a certificate.
C. A support-enforcement agency is not required to pay a fee authorized by Subsection B of this section.
PART 3 - SEARCH OF REGISTRIES
Section 4-421. [NEW MATERIAL] SEARCH OF APPROPRIATE REGISTRY.--
A. If a father-child relationship has not been established pursuant to the Uniform Parentage Act for a child under one year of age, a petitioner for adoption of or termination of parental rights regarding the child shall obtain a certificate of search of the registry of paternity.
B. If a petitioner for adoption of or termination of parental rights regarding a child has reason to believe that the conception or birth of the child may have occurred in another state, the petitioner shall also obtain a certificate of search from the registry of paternity, if any, in that state.
Section 4-422. [NEW MATERIAL] CERTIFICATE OF SEARCH OF REGISTRY.--
A. The bureau shall furnish to the requester a certificate of search of the registry on request of a person, court or agency identified in Section 4-412 of the Uniform Parentage Act.
B. A certificate provided by the bureau shall be signed on behalf of the bureau and state that:
(1) a search has been made of the registry; and
(2) a registration containing the information required to identify the registrant:
(a) has been found and is attached to the certificate of search; or
(b) has not been found.
C. A petitioner shall file the certificate of search with the district court before a proceeding for adoption of or termination of parental rights regarding a child may be concluded.
Section 4-423. [NEW MATERIAL] ADMISSIBILITY OF REGISTERED INFORMATION.--A certificate of search of the registry of paternity in this or another state is admissible in a proceeding for adoption of or termination of parental rights regarding a child and, if relevant, in other legal proceedings.
ARTICLE 5
GENETIC TESTING
Section 5-501. [NEW MATERIAL] SCOPE OF ARTICLE.--This article governs genetic testing of a person to determine parentage, whether the person:
A. voluntarily submits to testing; or
B. is tested pursuant to an order of the district court or a support-enforcement agency.
Section 5-502. [NEW MATERIAL] ORDER FOR TESTING.--
A. Except as otherwise provided in this article and Article 6 of the Uniform Parentage Act, the district court shall order the child and other designated persons to submit to genetic testing if the request for testing is supported by the sworn statement of a party to the proceeding:
(1) alleging paternity and stating facts establishing a reasonable probability of the requisite sexual contact between the persons; or
(2) denying paternity and stating facts establishing a possibility that sexual contact between the persons, if any, did not result in the conception of the child.
B. A support-enforcement agency may order genetic testing only if there is no presumed, acknowledged or adjudicated father.
C. If a request for genetic testing of a child is made before birth, the district court or support-enforcement agency may not order in-utero testing.
D. If two or more men are subject to court-ordered genetic testing, the testing may be ordered concurrently or sequentially.
Section 5-503. [NEW MATERIAL] REQUIREMENTS FOR GENETIC TESTING.--
A. Genetic testing shall be of a type reasonably relied upon by experts in the field of genetic testing and performed in a testing laboratory accredited by:
(1) the American association of blood banks or a successor to its functions;
(2) the American society for histocompatibility and immunogenetics or a successor to its functions; or
(3) an accrediting body designated by the federal secretary of health and human services.
B. A specimen used in genetic testing may consist of one or more samples, or a combination of samples, of blood, buccal cells, bone, hair or other body tissue or fluid. The specimen used in the testing need not be of the same kind for each person undergoing genetic testing.
C. Based on the ethnic or racial group of a person, the testing laboratory shall determine the databases from which to select frequencies for use in calculation of the probability of paternity. If there is disagreement as to the testing laboratory's choice, the following rules apply:
(1) the person objecting may require the testing laboratory, within thirty days after receipt of the report of the test, to recalculate the probability of paternity using an ethnic or racial group different from that used by the laboratory;
(2) the person objecting to the testing laboratory's initial choice shall:
(a) if the frequencies are not available to the testing laboratory for the ethnic or racial group requested, provide the requested frequencies compiled in a manner recognized by accrediting bodies; or
(b) engage another testing laboratory to perform the calculations; and
(3) the testing laboratory may use its own statistical estimate if there is a question regarding which ethnic or racial group is appropriate. If available, the testing laboratory shall calculate the frequencies using statistics for any other ethnic or racial group requested.
D. If, after recalculation using a different ethnic or racial group, genetic testing does not rebuttably identify a man as the father of a child pursuant to Section 5-505 of the Uniform Parentage Act, a person who has been tested may be required to submit to additional genetic testing.
Section 5-504. [NEW MATERIAL] REPORT OF GENETIC TESTING.--
A. A report of genetic testing shall be in a record and signed under penalty of perjury by a designee of the testing laboratory. A report made pursuant to the requirements of this article is self-authenticating.
B. Documentation from the testing laboratory of the following information is sufficient to establish a reliable chain of custody that allows the results of genetic testing to be admissible without testimony:
(1) the names and photographs of the persons whose specimens have been taken;
(2) the names of the persons who collected the specimens;
(3) the places and dates the specimens were collected;
(4) the names of the persons who received the specimens in the testing laboratory;
(5) the dates the specimens were received; and
(6) the accreditation of the testing facility showing that it meets the requirements of Section 5-503 of the Uniform Parentage Act.
Section 5-505. [NEW MATERIAL] GENETIC TESTING RESULTS--REBUTTAL.--
A. Pursuant to the Uniform Parentage Act, a man is rebuttably identified as the father of a child if the genetic testing complies with this article and the results disclose that:
(1) the man has at least a ninety-nine percent probability of paternity, using a prior probability of zero point five zero, as calculated by using the combined paternity index obtained in the testing; and
(2) a combined paternity index of at least one hundred to one.
B. A man identified pursuant to Subsection A of this section as the father of the child may rebut the genetic testing results only by other genetic testing satisfying the requirements of this article that:
(1) excludes the man as a genetic father of the child; or
(2) identifies another man as the possible father of the child.
C. Except as otherwise provided in Section 5-510 of the Uniform Parentage Act, if more than one man is identified by genetic testing as the possible father of the child, the court shall order them to submit to further genetic testing to identify the genetic father.
Section 5-506. [NEW MATERIAL] COSTS OF GENETIC TESTING.--
A. Subject to assessment of costs pursuant to Article 6 of the Uniform Parentage Act, the cost of initial genetic testing shall be advanced:
(1) by a support-enforcement agency in a proceeding in which the support-enforcement agency is providing services;
(2) by the person who made the request;
(3) as agreed by the parties; or
(4) as ordered by the district court.
B. In cases in which the cost is advanced by the support-enforcement agency, the agency may seek reimbursement from a man who is rebuttably identified as the father.
Section 5-507. [NEW MATERIAL] ADDITIONAL GENETIC TESTING.--The district court or the support-enforcement agency shall order additional genetic testing upon the request of a party who contests the result of the original testing. If the previous genetic testing identified a man as the father of the child pursuant to Section 5-505 of the Uniform Parentage Act, the court or agency may not order additional testing unless the party provides advance payment for the testing.
Section 5-508. [NEW MATERIAL] GENETIC TESTING WHEN SPECIMENS NOT AVAILABLE.--
A. Subject to Subsection B of this section, if a genetic-testing specimen is not available from a man who may be the father of a child, for good cause and under circumstances the court considers to be just, the court may order the following persons to submit specimens for genetic testing:
(1) the parents of the man;
(2) brothers and sisters of the man;
(3) other children of the man and their mothers; and
(4) other relatives of the man necessary to complete genetic testing.
B. Issuance of an order pursuant to this section requires a finding that a need for genetic testing outweighs the legitimate interests of the person sought to be tested.
Section 5-509. [NEW MATERIAL] DECEASED PERSON.--For good cause shown, the district court may order genetic testing of a deceased person.
Section 5-510. [NEW MATERIAL] IDENTICAL BROTHERS.--
A. The district court may order genetic testing of a brother of a man identified as the father of a child if the man is commonly believed to have an identical brother and evidence suggests that the brother may be the genetic father of the child.
B. If each brother satisfies the requirements as the identified father of the child pursuant to Section 5-505 of the Uniform Parentage Act without consideration of another identical brother being identified as the father of the child, the district court may rely on nongenetic evidence to adjudicate which brother is the father of the child.
Section 5-511. [NEW MATERIAL] CONFIDENTIALITY OF GENETIC TESTING.--
A. Release of the report of genetic testing for parentage is controlled by Section 24-14-27 NMSA 1978.
B. A person who intentionally releases an identifiable specimen of another person for any purpose other than that relevant to the proceeding regarding parentage without a court order or the written permission of the person who furnished the specimen commits a fourth degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978.
ARTICLE 6
PROCEEDING TO ADJUDICATE PARENTAGE
PART 1 - NATURE OF PROCEEDING
Section 6-601. [NEW MATERIAL] PROCEEDING AUTHORIZED.--A civil proceeding may be maintained to adjudicate the parentage of a child. The proceeding is governed by the Rules of Civil Procedure for the District Courts. The mother of the child and an alleged father or presumed father are competent to testify. Any witness may be compelled to testify.
Section 6-602. [NEW MATERIAL] STANDING TO MAINTAIN PROCEEDING.--Subject to Article 3 and Sections 6-607 and 6-609 of the Uniform Parentage Act, a proceeding to adjudicate parentage may be maintained by:
A. the child;
B. the mother of the child;
C. a man whose paternity of the child is to be adjudicated;
D. the support-enforcement agency;
E. an authorized adoption agency or licensed child-placing agency;
F. a representative authorized by law to act for a person who would otherwise be entitled to maintain a proceeding but who is deceased, incapacitated or a minor; or
G. an intended parent pursuant to Article 8 of the Uniform Parentage Act.
Section 6-603. [NEW MATERIAL] PARTIES TO PROCEEDING.--The following persons shall be joined as parties in a proceeding to adjudicate parentage:
A. the mother of the child; and
B. a man whose paternity of the child is to be adjudicated.
Section 6-604. [NEW MATERIAL] PERSONAL JURISDICTION.--
A. A person may not be adjudicated to be a parent unless the district court has personal jurisdiction over the person.
B. A district court of this state having jurisdiction to adjudicate parentage may exercise personal jurisdiction over a nonresident person, or the guardian or conservator of the person, if the conditions prescribed in Section 40-6A-201 NMSA 1978 are fulfilled.
C. Lack of jurisdiction over one person does not preclude the district court from making an adjudication of parentage binding on another person over whom the district court has personal jurisdiction.
Section 6-605. [NEW MATERIAL] VENUE.--Venue for a proceeding to adjudicate parentage is in the county of this state in which:
A. the child resides or is found;
B. the respondent resides or is found if the child does not reside in this state; or
C. a proceeding for probate or administration of the presumed or alleged father's estate has been commenced.
Section 6-606. [NEW MATERIAL] NO LIMITATION--CHILD HAVING NO PRESUMED, ACKNOWLEDGED OR ADJUDICATED FATHER.--A proceeding to adjudicate the parentage of a child having no presumed, acknowledged or adjudicated father may be commenced at any time, even after:
A. the child becomes an adult, but only if the child initiates the proceeding; or
B. an earlier proceeding to adjudicate paternity has been dismissed based on the application of a statute of limitation then in effect.
Section 6-607. [NEW MATERIAL] LIMITATION--CHILD HAVING PRESUMED FATHER.--
A. Except as otherwise provided in Subsection B of this section, a proceeding brought by a presumed father, the mother or another person to adjudicate the parentage of a child having a presumed father shall be commenced not later than two years after the birth of the child.
B. A proceeding seeking to disprove the father-child relationship between a child and the child's presumed father may be maintained at any time if the district court determines that:
(1) 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; and
(2) the presumed father never openly held out the child as his own.
Section 6-608. [NEW MATERIAL] AUTHORITY TO DENY MOTION FOR GENETIC TESTING.--
A. In a proceeding to adjudicate the parentage of a child having a presumed father or to challenge the paternity of a child having an acknowledged father, the district court may deny a motion seeking an order for genetic testing of the mother, the child and the presumed or acknowledged father if the district court determines that:
(1) the conduct of the mother or the presumed or acknowledged father estops that party from denying parentage; and
(2) it would be inequitable to disprove the father-child relationship between the child and the presumed or acknowledged father.
B. In determining whether to deny a motion seeking an order for genetic testing pursuant to this section, the district court shall consider the best interest of the child, including the following factors:
(1) the length of time between the proceeding to adjudicate parentage and the time that the presumed or acknowledged father was placed on notice that he might not be the genetic father;
(2) the length of time during which the presumed or acknowledged father has assumed the role of father of the child;
(3) the facts surrounding the presumed or acknowledged father's discovery of his possible nonpaternity;
(4) the nature of the relationship between the child and the presumed or acknowledged father;
(5) the age of the child;
(6) the harm that may result to the child if presumed or acknowledged paternity is successfully disproved;
(7) the nature of the relationship between the child and any alleged father;
(8) 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
(9) other factors that may affect the equities arising from the disruption of the father-child relationship between the child and the presumed or acknowledged father or the chance of other harm to the child.
C. In a proceeding involving the application of this section, a minor or incapacitated child shall be represented by a guardian ad litem.
D. Denial of a motion seeking an order for genetic testing shall be based on clear and convincing evidence.
E. If the district court denies a motion seeking an order for genetic testing, it shall issue an order adjudicating the presumed or acknowledged father to be the father of the child.
Section 6-609. [NEW MATERIAL] LIMITATION--CHILD HAVING ACKNOWLEDGED OR ADJUDICATED FATHER.--
A. If a child has an acknowledged father, a signatory to the acknowledgment of paternity or denial of paternity may commence a proceeding seeking to rescind the acknowledgment or denial or challenge the paternity of the child only within the time allowed pursuant to Section 3-307 or 3-308 of the Uniform Parentage Act.
B. If a child has an acknowledged father or an adjudicated father, a person, other than the child, who is neither a signatory to the acknowledgment of paternity nor a party to the adjudication and who seeks an adjudication of paternity of the child shall commence a proceeding not later than two years after the effective date of the acknowledgment or adjudication.
C. A proceeding pursuant to this section is subject to the application of the principles of estoppel established in Section 6-608 of the Uniform Parentage Act.
Section 6-610. [NEW MATERIAL] JOINDER OF PROCEEDINGS.--
A. Except as otherwise provided in Subsection B of this section, a proceeding to adjudicate parentage may be joined with a proceeding for adoption, termination of parental rights, child custody or visitation, child support, divorce, annulment, legal separation or separate maintenance, probate or administration of an estate or other appropriate proceeding.
B. A respondent may not join a proceeding described in Subsection A of this section with a proceeding to adjudicate parentage brought pursuant to the Uniform Interstate Family Support Act.
Section 6-611. [NEW MATERIAL] PROCEEDING BEFORE BIRTH.--A proceeding to determine parentage may be commenced before the birth of the child, but may not be concluded until after the birth of the child. The following actions may be taken before the birth of the child:
A. service of process;
B. discovery; and
C. except as prohibited by Section 5-502 of the Uniform Parentage Act, collection of specimens for genetic testing.
Section 6-612. [NEW MATERIAL] CHILD AS PARTY--REPRESENTATION.--
A. A minor child is a permissible party, but is not a necessary party to a proceeding pursuant to this article.
B. The district court shall appoint a guardian ad litem as defined in Subsection J of Section 32A-1-4 NMSA 1978 to represent a minor or incapacitated child if the child is a party or the district court finds that the interests of the child are not adequately represented.
PART 2 - SPECIAL RULES FOR PROCEEDING TO ADJUDICATE PARENTAGE
Section 6-621. [NEW MATERIAL] ADMISSIBILITY OF RESULTS OF GENETIC TESTING--EXPENSES.--
A. Except as otherwise provided in Subsection C of this section, a record of a genetic-testing expert is admissible as evidence of the truth of the facts asserted in the report unless a party objects, in a writing delivered to a party, to its admission within fourteen days after its receipt by the objecting party and cites specific grounds for exclusion. The admissibility of the report is not affected by whether the testing was performed:
(1) voluntarily or pursuant to an order of the district court or a support-enforcement agency; or
(2) before or after the commencement of the proceeding.
B. A party objecting to the results of genetic testing may call one or more genetic-testing experts to testify in person or by telephone, videoconference, deposition or another method approved by the district court. Unless otherwise ordered by the district court, the party offering the testimony bears the expense for the expert testifying.
C. If a child has a presumed, acknowledged or adjudicated father, the results of genetic testing are inadmissible to adjudicate parentage unless performed:
(1) with the consent of both the mother and the presumed, acknowledged or adjudicated father; or
(2) pursuant to an order of the district court pursuant to Section 5-502 of the Uniform Parentage Act.
D. Copies of bills for genetic testing, for child birth and for prenatal and postnatal health care for the mother and child that are furnished to the adverse party not less than ten days before the date of a hearing are admissible to establish:
(1) the amount of the charges billed; and
(2) that the charges were reasonable, necessary and customary.
Section 6-622. [NEW MATERIAL] CONSEQUENCES OF DECLINING GENETIC TESTING.--
A. An order for genetic testing is enforceable by contempt.
B. If a person whose paternity is being determined declines to submit to genetic testing ordered by the district court, the district court for that reason may adjudicate parentage contrary to the position of the person who declines.
C. Genetic testing of the mother of a child is not a condition precedent to testing the child and a man whose paternity is being determined. If the mother is unavailable or declines to submit to genetic testing, the district court may order the testing of the child and every man whose paternity is being adjudicated.
Section 6-623. [NEW MATERIAL] ADMISSION OF PATERNITY AUTHORIZED.--
A. A respondent in a proceeding to adjudicate parentage may admit to the paternity of a child by filing a pleading to that effect or by admitting paternity under penalty of perjury when making an appearance or during a hearing.
B. If the district court finds that the admission of paternity satisfies the requirements of this section and finds that there is no reason to question the admission, the district court shall issue an order adjudicating the child to be the child of the man admitting paternity.
Section 6-624. [NEW MATERIAL] TEMPORARY ORDER.--
A. In a proceeding pursuant to this article, the district court shall issue a temporary order for support of a child if the order is appropriate and the person ordered to pay support is:
(1) a presumed father of the child;
(2) petitioning to have his paternity adjudicated;
(3) identified as the father through genetic testing pursuant to Section 5-505 of the Uniform Parentage Act;
(4) an alleged father who has declined to submit to genetic testing;
(5) shown by clear and convincing evidence to be the father of the child; or
(6) the mother of the child.
B. A temporary order may include provisions for custody and visitation as provided by other law of this state. A temporary order of support is subject to the provisions of Section 6-636 of the Uniform Parentage Act.
PART 3 - HEARINGS AND ADJUDICATION
Section 6-631. [NEW MATERIAL] RULES FOR ADJUDICATION OF PATERNITY.--The district court shall apply the following rules to adjudicate the paternity of a child:
A. the paternity of a child having a presumed, acknowledged or adjudicated father may be disproved only by admissible results of genetic testing excluding that man as the father of the child or identifying another man as the father of the child;
B. unless the results of genetic testing are admitted to rebut other results of genetic testing, a man identified as the father of a child pursuant to Section 5-505 of the Uniform Parentage Act shall be adjudicated the father of the child;
C. if the district court finds that genetic testing pursuant to section 5-505 of the Uniform Parentage Act neither identifies nor excludes a man as the father of a child, the district court may not dismiss the proceeding. In that event, the results of genetic testing and other evidence are admissible to adjudicate the issue of paternity; and
D. unless the results of genetic testing are admitted to rebut other results of genetic testing, a man excluded as the father of a child by genetic testing shall be adjudicated not to be the father of the child.
Section 6-632. [NEW MATERIAL] JURY PROHIBITED.--The district court, without a jury, shall adjudicate paternity of a child.
Section 6-633. [NEW MATERIAL] HEARINGS--INSPECTION OF RECORDS.--
A. On request of a party and for good cause shown, the district court may close a proceeding to the public and except for a final order, may declare the proceeding to be confidential and seal the file.
B. A final order in a proceeding pursuant to this article is available for public inspection. Other papers and records are available only with the consent of the parties or on order of the district court for good cause.
Section 6-634. [NEW MATERIAL] ORDER ON DEFAULT.--The district court shall issue an order adjudicating the paternity of a man who:
A. after service of process, is in default; and
B. is found by the district court to be the father of a child.
Section 6-635. [NEW MATERIAL] DISMISSAL FOR WANT OF PROSECUTION.--The district court may issue an order dismissing a proceeding commenced pursuant to the Uniform Parentage Act for want of prosecution only without prejudice. An order of dismissal for want of prosecution purportedly with prejudice is void and has only the effect of a dismissal without prejudice.
Section 6-636. [NEW MATERIAL] ORDER ADJUDICATING PARENTAGE.--
A. The district court shall issue an order adjudicating whether a man alleged or claiming to be the father is the parent of the child.
B. An order adjudicating parentage shall identify the child by name and date of birth.
C. Except as otherwise provided in Subsection D of this section, the district court may assess filing fees, reasonable fees of counsel, experts and the child's guardian ad litem, fees for genetic testing, other costs, necessary travel and other reasonable expenses incurred in a proceeding pursuant to this article. The district court may award attorney fees, which may be paid directly to the attorney, who may enforce the order in the attorney's own name. The district court may order these fees, costs and expenses to be paid by any party in proportions and at times as determined by the court, but not exceeding twelve years unless there is a substantial showing that paternity could not have been established and an action for child support could not have been brought within twelve years of the child's birth. The court may order the proportion of any indigent party to be paid from court funds.
D. The district court may not assess fees, costs or expenses against the support-enforcement agency of this state or another state, except as provided by other law.
E. On request of a party and for good cause shown, the district court may order that the name of the child be changed.
F. If the order of the district court is at variance with the child's birth certificate, the district court shall order the bureau to issue an amended birth registration.
G. The judgment or order may contain any other provision directed against or on behalf of the appropriate party to the proceeding concerning the duty of past and future support, the custody and guardianship of the child, visitation with the child, the furnishing of bond or other security for the payment of the judgment or any other matter within the jurisdiction of the court. The judgment or order may direct the father to pay the reasonable expenses of the mother's pregnancy, birth and confinement. The court shall order child support retroactive to the date of the child's birth, but not to exceed twelve years unless there is a substantial showing that paternity could not have been established and an action for child support could not have been brought within twelve years of the child's birth pursuant to the provisions of Sections 40-4-11 through 40-4-11.3 NMSA 1978; provided that, in deciding whether or how long to order retroactive support, the court shall consider:
(1) whether the alleged or presumed father has absconded or could not be located; and
(2) whether equitable defenses are applicable.
H. Support judgments or orders ordinarily shall be for periodic payments which may vary in amount. In the best interest of the child, a lump-sum payment or the purchase of an annuity may be ordered in lieu of periodic payments of support; provided, however, nothing in this section shall deprive a state agency of its right to reimbursement from an appropriate party should the child be a past or future recipient of public assistance.
I. In determining the amount to be paid by a parent for support of the child, a court, child support hearing officer or master shall make such determination in accordance with the provisions of the child support guidelines of Section 40-4-11.1 NMSA 1978.
J. Bills for pregnancy, childbirth and genetic testing are admissible as evidence without requiring third- party foundation testimony and constitute prima facie evidence of amounts incurred.
Section 6-637. [NEW MATERIAL] BINDING EFFECT OF DETERMINATION OF PARENTAGE.--
A. Except as otherwise provided in Subsection B of this section, a determination of parentage is binding on:
(1) all signatories to an acknowledgment or denial of paternity as provided in Article 3 of the Uniform Parentage Act; and
(2) all parties to an adjudication by a district court acting under circumstances that satisfy the jurisdictional requirements of Section 40-6A-201 NMSA 1978.
B. A child is not bound by a determination of parentage pursuant to the Uniform Parentage Act unless:
(1) the determination was based on an unrescinded acknowledgment of paternity and the acknowledgment is consistent with the results of genetic testing;
(2) the adjudication of parentage was based on a finding consistent with the results of genetic testing and the consistency is declared in the determination or is otherwise shown; or
(3) the child was a party or was represented in the proceeding determining parentage by a guardian ad litem as defined in Subsection J of Section 32A-1-4 NMSA 1975.
C. In a proceeding to dissolve a marriage, the district court is deemed to have made an adjudication of the parentage of a child if the district court acts under circumstances that satisfy the jurisdictional requirements of Section 40-6A-201 NMSA 1978, and the final order:
(1) 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
(2) provides for support of the child by the husband unless paternity is specifically disclaimed in the order.
D. Except as otherwise provided in Subsection B of this section, a determination of parentage may be a defense in a subsequent proceeding seeking to adjudicate parentage by a person who was not a party to the earlier proceeding.
E. A party to an adjudication of paternity may challenge the adjudication only pursuant to the law of this state relating to appeal, vacation of judgments or other judicial review.
Section 6-638. [NEW MATERIAL] FULL FAITH AND CREDIT--DETERMINATION OF PARENTAGE.--A court of this state shall give full faith and credit to a determination of parentage made by a court of another state.
Section 6-639. [NEW MATERIAL] ENFORCEMENT OF JUDGMENT OR ORDER.--
A. If existence of the father and child relationship is declared, or paternity or a duty of support has been acknowledged or adjudicated under the Uniform Parentage Act or under prior law, the obligation of the father may be enforced in the same or other proceedings by any interested party.
B. The court may order support payments to be made to the mother, the clerk of the court or a person, corporation or agency designated to collect or administer such funds for the benefit of the child, upon such terms as the court deems appropriate.
C. Willful failure to obey the judgment or order of the court is a civil contempt of the court. All remedies for the enforcement of judgments apply.
Section 6-640. [NEW MATERIAL] MODIFICATION OF JUDGMENT OR ORDER.--The court has continuing jurisdiction to modify or revoke a judgment or order for future support.
Section 6-641. [NEW MATERIAL] RIGHT TO COUNSEL--FREE TRANSCRIPT ON APPEAL.--
A. At the pretrial hearing and in further proceedings, any party may be represented by counsel. The court shall appoint counsel for any party who is unable to obtain counsel for financial reasons if, in the court's discretion, appointment of counsel is required in the interest of justice.
B. If a party is financially unable to pay the cost of a transcript, the court shall furnish on request a transcript for purposes of appeal.
Section 6-642. [NEW MATERIAL] HEARINGS AND RECORDS--CONFIDENTIALITY.--Notwithstanding any other law concerning public hearings and records, any hearing or trial held under the provisions of the Uniform Parentage Act may be held in closed court without admittance of any person other than those necessary to the action or proceeding. The court may order that certain papers and records pertaining to the action or proceeding, whether part of the permanent record of the court or any other file maintained by the state or elsewhere, are subject to inspection only upon consent of the court; provided, however, nothing in this section shall infringe upon the right of the parties to an action or proceeding to inspect the court record.
Section 6-643. [NEW MATERIAL] BIRTH RECORDS.--
A. Upon order of a court of this state or upon request of a court of another state, the bureau shall prepare a new certificate of birth consistent with the findings of the court and shall substitute the new certificate for the original certificate of birth.
B. The fact that the father and child relationship was declared after the child's birth shall not be ascertainable from the new certificate, but the actual place and date of birth shall be shown.
C. The evidence upon which the new certificate was made and the original birth certificate shall be kept in a sealed and confidential file and be subject to inspection only upon order of the court and consent of all interested parties, or in exceptional cases only upon an order of the court for good cause shown.
ARTICLE 7
CHILD OF ASSISTED REPRODUCTION
Section 7-701. [NEW MATERIAL] SCOPE OF ARTICLE.--This article does not apply to the birth of a child conceived by means of sexual intercourse or as the result of a gestational agreement as provided in Article 8 of the Uniform Parentage Act.
Section 7-702. [NEW MATERIAL] PARENTAL STATUS OF DONOR.--A donor is not a parent of a child conceived by means of assisted reproduction.
Section 7-703. [NEW MATERIAL] PATERNITY OF CHILD OF ASSISTED REPRODUCTION.--A man who provides sperm for or consents to assisted reproduction by a woman as provided in Section 7-704 of the Uniform Parentage Act with the intent to be the parent of her child is a parent of the resulting child.
Section 7-704. [NEW MATERIAL] CONSENT TO ASSISTED REPRODUCTION.--
A. Consent by a woman and a man who intends to be a parent of a child born to the woman by assisted reproduction shall be in a record signed by the woman and the man. This requirement does not apply to a donor.
B. Failure of a man to sign a consent required by Subsection A of this section, before or after birth of the child, does not preclude a finding of paternity if the woman and the man, during the first two years of the child's life, resided together in the same household with the child and openly held out the child as their own.
C. All papers relating to the assisted reproduction, whether part of a court, medical or any other file, are subject to inspection only upon an order of a court for good cause shown.
Section 7-705. [NEW MATERIAL] LIMITATION ON HUSBAND'S DISPUTE OF PATERNITY.--
A. Except as otherwise provided in Subsection B of this section, the husband of a wife who gives birth to a child by means of assisted reproduction may not challenge his paternity of the child unless:
(1) within two years after learning of the birth of the child he commences a proceeding to adjudicate his paternity; and
(2) the district court finds that he did not consent to the assisted reproduction, before or after birth of the child.
B. A proceeding to adjudicate paternity may be maintained at any time if the district court determines that:
(1) the husband did not provide sperm for, or before or after the birth of the child consent to, assisted reproduction by his wife;
(2) the husband and the mother of the child have not cohabited since the probable time of assisted reproduction; and
(3) the husband never openly held out the child as his own.
C. The limitation provided in this section applies to a marriage declared invalid after assisted reproduction.
Section 7-706. [NEW MATERIAL] EFFECT OF DISSOLUTION OF MARRIAGE OR WITHDRAWAL OF CONSENT.--
A. If a marriage is dissolved before placement of eggs, sperm or embryos, the former spouse is not a parent of the resulting child unless the former spouse consented in a record that if assisted reproduction were to occur after a divorce the former spouse would be a parent of the child.
B. The consent of a woman or a man to assisted reproduction may be withdrawn by that person in a record at any time before placement of eggs, sperm or embryos. A person who withdraws consent pursuant to this section is not a parent of the resulting child.
Section 7-707. [NEW MATERIAL] PARENTAL STATUS OF DECEASED PERSON.--If a person who consented in a record to be a parent by assisted reproduction dies before placement of eggs, sperm or embryos, the deceased person is not a parent of the resulting child unless the deceased spouse consented in a record that if assisted reproduction were to occur after death, the deceased person would be a parent of the child.
ARTICLE 8
GESTATIONAL AGREEMENT
Section 8-801. [NEW MATERIAL] GESTATIONAL AGREEMENT AUTHORIZED.--
A. A prospective gestational mother, her husband if she is married, a donor or the donors and the intended parents may enter into a written gestational agreement providing that:
(1) the prospective gestational mother agrees to pregnancy by means of assisted reproduction;
(2) the prospective gestational mother, her husband if she is married and the donors relinquish all rights and duties as the parents of a child conceived through assisted reproduction; and
(3) the intended parents become the parents of the child.
B. The man and the woman who are the intended parents shall both be parties to the gestational agreement.
C. A gestational agreement is enforceable only if validated as provided in Section 8-803 of the Uniform Parentage Act.
D. A gestational agreement does not apply to the birth of a child conceived by means of sexual intercourse.
E. A gestational agreement may provide for payment of consideration.
F. A gestational agreement may not limit the right of the gestational mother to make decisions to safeguard her health or that of the embryos or fetus.
Section 8-802. [NEW MATERIAL] REQUIREMENTS OF PETITION.--
A. The intended parents and the prospective gestational mother may commence a proceeding in the district court to validate a gestational agreement.
B. A proceeding to validate a gestational agreement may not be maintained unless:
(1) the mother or the intended parents have been residents of this state for at least ninety days;
(2) the prospective gestational mother's husband, if she is married, is joined in the proceeding; and
(3) a copy of the gestational agreement is attached to the petition.
Section 8-803. [NEW MATERIAL] HEARING TO VALIDATE GESTATIONAL AGREEMENT.--
A. If the requirements of Subsection B of this section are satisfied, the district court may issue an order validating the gestational agreement and declaring that the intended parents will be the parents of a child born during the term of the agreement.
B. The district court may issue an order pursuant to Subsection A of this section only on finding that:
(1) the residence requirements of Section 8-802 of the Uniform Parentage Act have been satisfied and the parties have submitted to the jurisdiction of the district court pursuant to the jurisdictional standards of that act;
(2) unless waived by the district court, the children, youth and families department or an agency as defined in Subsection D of Section 32A-5-3 NMSA 1978 has made a home study of the intended parents and the intended parents meet the standards of suitability applicable to adoptive parents;
(3) all parties have voluntarily entered into the agreement and understand its terms;
(4) adequate provision has been made for all reasonable health-care expense associated with the gestational agreement until the birth of the child, including responsibility for those expenses if the agreement is terminated; and
(5) the consideration, if any, paid to the prospective gestational mother is reasonable.
Section 8-804. [NEW MATERIAL] INSPECTION OF RECORDS.--The proceedings, records and identities of the individual parties to a gestational agreement are subject to inspection pursuant to the standards of confidentiality applicable to adoptions as provided pursuant to other law of this state.
Section 8-805. [NEW MATERIAL] EXCLUSIVE, CONTINUING JURISDICTION.--Subject to the jurisdictional standards of Section 40-10A-201 NMSA 1978, the district court conducting a proceeding pursuant to this article has exclusive, continuing jurisdiction of all matters arising out of the gestational agreement until a child born to the gestational mother during the period governed by the agreement attains the age of one hundred eighty days.
Section 8-806. [NEW MATERIAL] TERMINATION OF GESTATIONAL AGREEMENT.--
A. After issuance of an order pursuant to this article, but before the prospective gestational mother becomes pregnant by means of assisted reproduction, the prospective gestational mother, her husband or either of the intended parents may terminate the gestational agreement by giving written notice of termination to all other parties.
B. The district court for good cause shown may terminate the gestational agreement.
C. A person who terminates a gestational agreement shall file notice of the termination with the district court. On receipt of the notice, the district court shall vacate the order issued pursuant to this article. A person who does not notify the district court of the termination of the agreement is subject to appropriate sanctions.
D. Neither a prospective gestational mother nor her husband if she is married, is liable to the intended parents for terminating a gestational agreement pursuant to this section.
Section 8-807. [NEW MATERIAL] PARENTAGE PURSUANT TO VALIDATED GESTATIONAL AGREEMENT.--
A. Upon birth of a child to a gestational mother, the intended parents shall file notice with the district court that a child has been born to the gestational mother within three hundred days after assisted reproduction. Thereupon, the district court shall issue an order:
(1) confirming that the intended parents are the parents of the child;
(2) if necessary, ordering that the child be surrendered to the intended parents; and
(3) directing the bureau to issue a birth certificate naming the intended parents as parents of the child.
B. If the parentage of a child born to a gestational mother is alleged not to be the result of assisted reproduction, the district court shall order genetic testing to determine the parentage of the child.
C. If the intended parents fail to file notice required pursuant to Subsection A of this section, the gestational mother or the appropriate state agency may file notice with the district court that a child has been born to the gestational mother within three hundred days after assisted reproduction. Upon proof of a district court order issued pursuant to Section 8-803 of the Uniform Parentage Act validating the gestational agreement, the district court shall order that the intended parents are the parents of the child and are financially responsible for the child.
Section 8-808. [NEW MATERIAL] GESTATIONAL AGREEMENT--EFFECT OF SUBSEQUENT MARRIAGE.--After the issuance of an order pursuant to this article, any subsequent marriage of the gestational mother does not affect the validity of a gestational agreement, her husband's consent to the agreement is not required and her husband is not a presumed father of the resulting child.
Section 8-809. [NEW MATERIAL] EFFECT OF NONVALIDATED GESTATIONAL AGREEMENT.--
A. A gestational agreement, whether in a record or not, that is not judicially validated is not enforceable.
B. If a birth results pursuant to a gestational agreement that is not judicially validated as provided in this article, the parent-child relationship is determined as provided in Article 2 of the Uniform Parentage Act.
C. Persons who are parties to a nonvalidated gestational agreement as intended parents may be held liable for support of the resulting child, even if the agreement is otherwise unenforceable. The liability pursuant to this subsection includes assessing all support, costs, expenses and fees as provided in Section 6-636 of the Uniform Parentage Act and is subject to the limitations in that section.
ARTICLE 9
MISCELLANEOUS PROVISIONS
Section 9-901. [NEW MATERIAL] UNIFORMITY OF APPLICATION AND CONSTRUCTION.--In applying and construing the Uniform Parentage Act, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.
Section 9-902. [NEW MATERIAL] SEVERABILITY CLAUSE.--If any provision of the Uniform Parentage Act or its application to a person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the Uniform Parentage Act that can be given effect without the invalid provision or application, and to this end the provisions of the Uniform Parentage Act are severable.
Section 9-903. [NEW MATERIAL] TRANSITIONAL PROVISION.--A proceeding to adjudicate parentage that was commenced before the effective date of the Uniform Parentage Act is governed by the law in effect at the time the proceeding was commenced.
Section 10. 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 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 not married at the time of either conception or birth, but the 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. 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 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 father, regarding the benefits of having the child's paternity established 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 shall be entered on the certificate of birth as the father.]
D. The name of the woman entered on the birth certificate as the mother of the child shall be the woman whose mother-child relationship with the child is established pursuant to Subsection A of Section 2-201 of the Uniform Parentage Act.
E. The name of the man entered on the birth certificate as the father of the child shall be the man whose father-child relationship with the child is established pursuant to Subsection B of Section 2-201 of the Uniform Parentage Act.
[H.] F. 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 11. Section 24-14-16 NMSA 1978 (being Laws 1961, Chapter 44, Section 16, as amended) is amended to read:
"24-14-16. JUDICIAL PROCEDURE TO ESTABLISH FACTS OF BIRTH.--
A. If a delayed certificate of birth is rejected under the provisions of Section 24-14-15 NMSA 1978, a petition may be filed with a court for an order establishing a record of the date and place of the birth and the parentage of the person whose birth is to be registered.
B. The petition shall allege that:
(1) the person for whom a delayed certificate of birth is sought was born in this state;
(2) no record of birth of the person can be found in the vital statistics bureau of the public health division of the department;
(3) diligent efforts by the petitioner have failed to obtain the evidence required in accordance with Section 24-14-15 NMSA 1978;
(4) the state registrar has refused to register a delayed certificate of birth; and
(5) any other allegations as may be required.
C. The petition shall be accompanied by a statement of the registration official made in accordance with Section 24-14-15 NMSA 1978 and all documentary evidence [which] that was submitted to the registration official in support of the registration. The petition shall be sworn to by the petitioner.
D. The court shall fix a time and place for hearing the petition and shall give the registration official who refused to register the petitioner's delayed certificate of birth ten days' notice of the hearing. The official or his authorized representative may appear and testify in the proceeding.
E. If the court finds from the evidence presented [finds] that the person for whom a delayed certificate of birth is sought was born in this state, it shall make findings as to the place and date of birth, parentage and other findings as the case may require and shall issue an order to establish a record of birth. This order shall include the birth data to be registered, a description of the evidence presented in the manner prescribed by Section 24-14-15 NMSA 1978 and the date of the court's action.
F. The court shall determine the parent-child relationship of the mother and father pursuant to the provisions of Section 2-201 of the Uniform Parentage Act.
[F.] G. The clerk of the court shall forward each order to the state registrar not later than the tenth day of the calendar month following the month in which it was entered. The order shall be registered by the state registrar and shall constitute the record of birth from which copies may be issued in accordance with Sections 24-14-28 and 24-14-29 NMSA 1978."
Section 12. Section 32A-5-3 NMSA 1978 (being Laws 1993, Chapter 77, Section 130, as amended by Laws 2003, Chapter 294, Section 2 and by Laws 2003, Chapter 321, Section 2) is amended to read:
"32A-5-3. DEFINITIONS.--As used in the Adoption Act:
A. "accrediting entity" means an entity that has entered into an agreement with the United States secretary of state pursuant to the federal Intercountry Adoption Act of 2000 and regulations adopted by the United States secretary of state pursuant to that act, to accredit agencies and approve persons who provide adoption services related to convention adoptions;
B. "adoptee" means a person who is the subject of an adoption petition;
C. "adoption service" means:
(1) identifying a child for adoption and arranging the adoption of the child;
(2) securing termination of parental rights to a child or consent to adoption of the child;
(3) performing a background study on a child and reporting on the study;
(4) performing a home study on a prospective adoptive parent and reporting on the study;
(5) making determinations regarding the best interests of a child and the appropriateness of an adoptive placement for the child;
(6) performing post-placement monitoring of a child until an adoption is final; and
(7) when there is a disruption before an adoption of a child is final, assuming custody of the child and providing or facilitating the provision of child care or other social services for the child pending an alternative placement of the child;
D. "agency" means a person certified, licensed or otherwise specially empowered by law to place a child in a home in this or any other state for the purpose of adoption;
E. "agency adoption" means an adoption when the adoptee is in the custody of an agency prior to placement;
F. "acknowledged father" means a father: [who:
(1) acknowledges paternity of the adoptee pursuant to the putative father registry, as provided for in Section 32A-5-20 NMSA 1978;]
(1) whose father-child relationship with the adoptee is established pursuant to the provisions of Subsection B of Section 2-201 of the Uniform Parentage Act and whose parental rights have not been relinquished or terminated;
(2) who registers with respect to the adoptee with the registry of paternity as provided for in Section 4-401 of the Uniform Parentage Act;
[(2)] (3) who is named, with his consent, as the adoptee's father on the adoptee's birth certificate;
[(3)] (4) who is obligated to support the adoptee under a written voluntary promise or pursuant to a court order; or
[(4)] (5) who has openly held out the adoptee as his own child by establishing a custodial, personal or financial relationship with the adoptee as follows:
(a) for an adoptee under six months old at the time of placement: 1) has initiated an action to establish paternity; 2) is living with the adoptee at the time the adoption petition is filed; 3) has lived with the mother a minimum of ninety days during the two-hundred-eighty-day-period prior to the birth or placement of the adoptee; 4) has lived with the adoptee within the ninety days immediately preceding the adoptive placement; 5) has provided reasonable and fair financial support to the mother during the pregnancy and in connection with the adoptee's birth in accordance with his means and when not prevented from doing so by the person or authorized agency having lawful custody of the adoptee or the adoptee's mother; 6) has continuously paid child support to the mother since the adoptee's birth in an amount at least equal to the amount provided in Section 40-4-11.1 NMSA 1978, or has brought current any delinquent child support payments; or 7) any other factor the court deems necessary to establish a custodial, personal or financial relationship with the adoptee; or
(b) for an adoptee over six months old at the time of placement: 1) has initiated an action to establish paternity; 2) has lived with the adoptee within the ninety days immediately preceding the adoptive placement; 3) has continuously paid child support to the mother since the adoptee's birth in an amount at least equal to the amount provided in Section 40-4-11.1 NMSA 1978, or is making reasonable efforts to bring delinquent child support payments current; 4) has contact with the adoptee on a monthly basis when physically and financially able and when not prevented by the person or authorized agency having lawful custody of the adoptee; or 5) has regular communication with the adoptee, or with the person or agency having the care or custody of the adoptee, when physically and financially unable to visit the adoptee and when not prevented from doing so by the person or authorized agency having lawful custody of the adoptee;
G. "alleged father" means an individual whom the biological mother has identified as the biological father, but the individual [has not acknowledged paternity or registered with the putative father registry as provided for in Section 32A-5-20 NMSA 1978] is not an acknowledged father and whose parental rights have not been relinquished or terminated;
H. "consent" means a document:
(1) signed by a biological parent whereby the parent grants consent to the adoption of the parent's child by another; or
(2) whereby the department or an agency grants its consent to the adoption of a child in its custody;
I. "convention adoption" means:
(1) an adoption by a United States resident of a child who is a resident of a foreign country that is a party to the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption; or
(2) an adoption by a resident of a foreign country that is a party to the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption of a child who is a resident of the United States;
J. "counselor" means a person certified by the department to conduct adoption counseling in independent adoptions;
K. "department adoption" means an adoption when the child is in the custody of the department;
L. "former parent" means a parent whose parental rights have been terminated or relinquished;
M. "full disclosure" means mandatory and continuous disclosure by the investigator, agency, department or petitioner throughout the adoption proceeding and after finalization of the adoption of all known, nonidentifying information regarding the adoptee, including:
(1) health history;
(2) psychological history;
(3) mental history;
(4) hospital history;
(5) medication history;
(6) genetic history;
(7) physical descriptions;
(8) social history;
(9) placement history; and
(10) education;
N. "independent adoption" means an adoption when the child is not in the custody of the department or an agency;
O. "investigator" means an individual certified by the department to conduct pre-placement studies and post-placement reports;
P. "mother" means an individual whose mother-child relationship with the adoptee is established pursuant to the provisions of Subsection A of Section 2-201 of the Uniform Parentage Act and whose parental rights have not been relinquished or terminated;
[P.] Q. "office" means a place for the regular transaction of business or performance of particular services;
[Q.] R. "parental rights" means all rights of a parent with reference to a child, including parental right to control, to withhold consent to an adoption or to receive notice of a hearing on a petition for adoption;
[R.] S. "placement" means the selection of a family for an adoptee or matching of a family with an adoptee and physical transfer of the adoptee to the family in all adoption proceedings, except in adoptions filed pursuant to Paragraphs (1) and (2) of Subsection C of Section 32A-5-12 NMSA 1978, in which case placement occurs when the parents consent to the adoption, parental rights are terminated or parental consent is implied;
[S.] T. "post-placement report" means a written evaluation of the adoptive family and the adoptee after the adoptee is placed for adoption;
[T.] U. "pre-placement study" means a written evaluation of the adoptive family, the adoptee's biological family and the adoptee;
[U.] V. "presumed father" means
[(1) the husband of the biological mother at the time the adoptee was born;
(2) an individual who was married to the mother and either the adoptee was born during the term of the marriage or the adoptee was born within three hundred days after the marriage was terminated by death, annulment, declaration of invalidity or divorce; or
(3) before the adoptee's birth, an individual who attempted to marry the adoptee's biological mother by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid and if the attempted marriage:
(a) could be declared invalid only by a court, the adoptee was born during the attempted marriage or within three hundred days after its termination by death, annulment, declaration of invalidity or divorce; or
(b) is invalid without a court order, the adoptee was born within three hundred days after the termination of cohabitation] an individual who is presumed to be the father of the child pursuant to Section 2-201 of the Uniform Parentage Act;
[V.] W. "record" means any petition, affidavit, consent or relinquishment form, transcript or notes of testimony, deposition, power of attorney, report, decree, order, judgment, correspondence, document, photograph, invoice, receipt, certificate or other printed, written, videotaped or tape-recorded material pertaining to an adoption proceeding;
[W.] X. "relinquishment" means the document by which a parent relinquishes parental rights to the department or an agency to enable placement of the parent's child for adoption;
[X.] Y. "resident" means a person who, prior to filing an adoption petition, has lived in the state for at least six months immediately preceding filing of the petition for adoption or a person who has become domiciled in the state by establishing legal residence with the intention of maintaining the residency indefinitely; and
[Y.] Z. "stepparent adoption" means an adoption of the adoptee by the adoptee's stepparent when the adoptee has lived with the stepparent for at least one year following the marriage of the stepparent to the custodial parent."
Section 13. REPEAL.--Sections 32A-5-20 and 40-11-1 through 40-11-23 NMSA 1978 (being Laws 1993, Chapter 77, Section 147 and Laws 1986, Chapter 47, Sections 1 through 23, as amended) are repealed.
Section 14. EFFECTIVE DATE.--The effective date of the provisions of this act is January 1, 2006.
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