584-4 Presumption of paternity. (a) A man is 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 divorce, 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 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) While the child is under the age of majority, he receives the child into his home and openly holds out the child as his natural child;

(5) Pursuant to section 584-11, he submits to court ordered genetic testing and the results, as stated in a report prepared by the testing laboratory, do not exclude the possibility of his paternity of the child; provided the testing used has a power of exclusion greater than 99.0 per cent and a minimum combined paternity index of five hundred to one; or

(6) A voluntary, written acknowledgment of paternity of the child signed by him under oath is filed with the department of health. The department of health shall prepare a new certificate of birth for the child in accordance with section 338-21. The voluntary acknowledgment of paternity by the presumed father filed with the department of health pursuant to this paragraph shall be the basis for establishing and enforcing a support obligation through a judicial proceeding.

(b) A presumption under this section may be rebutted in an appropriate action only by clear and convincing evidence. If two or more presumptions arise which conflict with each other, the presumption which on the facts is founded on the weightier considerations of policy and logic controls. The presumption is rebutted by a court decree establishing paternity of the child by another man. [L 1975, c 66, pt of 1; am L 1987, c 100, 3; am L 1995, c 106, 1; am L 1997, c 293, 42]

 

Case Notes

 

Legislature has not mandated that the presumption of paternity in subsection (a)(1) be rebutted before a paternity action against another man can be brought. 88 H. 159 (App.), 963 P.2d 1135 (1998).

Where no conflict existed between two or more subsection (a) presumptions, subsection (b), which calls for the resolution of conflicting subsection (a) presumptions, was not applicable to case and family court was not required to choose between conflicting presumptions. 88 H. 159 (App.), 963 P.2d 1135 (1998).

Family court did not err in holding that plaintiff was child's "legal father", and that mother was estopped from challenging plaintiff's parentage of child where, pursuant to this section, plaintiff and child did have a presumptive "parent and child relationship"; mother and plaintiff married after child's birth, with plaintiff's consent, mother had child's birth certificate changed to identify plaintiff as child's father, and there was substantial evidence that while child was under the age of majority, plaintiff received child into plaintiff's home and openly held out child as plaintiff's natural child. 118 H. 86 (App.), 185 P.3d 834 (2008).

 

 

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