§584-6  Determination of father and child relationship; who may bring action; when action may be brought; process, warrant, bond, etc.  (a)  A child, or guardian ad litem of the child, the child's natural mother, whether married or unmarried at the time the child was conceived, or her personal representative or parent if the mother has died; or a man alleged or alleging himself to be the natural father, or his personal representative or parent if the father has died; or a presumed father as defined in section 584-4, or his personal representative or parent if the presumed father has died; or the child support enforcement agency, may bring an action for the purpose of declaring the existence or nonexistence of the father and child relationship in accordance with the following:

     (1)  If the child is the subject of an adoption proceeding, action may be brought:

          (A)  Within thirty days after the date of the child's birth in any case when the mother relinquishes the child for adoption during the thirty-day period; or

          (B)  Any time prior to the date of execution by the mother of a valid consent to the child's adoption, or prior to placement of the child with adoptive parents;

     (2)  If the child has not become the subject of an adoption proceeding, within three years after the child reaches the age of majority or any time after that for good cause; provided that any period of time during which the man alleged or alleging himself to be the natural father of the child is absent from the State or is openly cohabitating with the mother of the child or is contributing to the support of the child, shall not be computed;

     (3)  This section shall not extend the time within which a right of inheritance or a right to a succession may be asserted beyond the time provided by law relating to distribution and closing of decedents' estates or to the determination of heirship, or otherwise; and

     (4)  A personal representative in this section may be appointed by the court upon a filing of an ex parte motion by one of the parties entitled to file a paternity action.  Probate requirements need not be met.  However, appointment of the personal representative in this section is limited to representation in chapter 584 proceedings.

     (b)  When an action is brought under this section, process shall issue in the form of a summons and an order directed to the alleged or presumed father, the mother or both, requiring each to appear and to show cause why the action should not be brought.

     If, at any stage of the proceedings, there appears probable cause to believe that the alleged or presumed father, the mother, or both, will evade the service of process, or will fail to appear in response thereto, or will flee the jurisdiction of the court, the court may issue a warrant directed to the sheriff, deputy sheriff, or any police officer within the circuit, requiring the alleged or presumed father, the mother, or both, to be arrested and brought for pre-trial proceedings before the family court.  Upon such pre-trial proceedings, the court may require the alleged or presumed father, the mother, or both, to enter into bond with good sureties to the State in a sum to be fixed by the court for each person's appearance and the trial of the proceeding in the family court.  If the alleged or presumed father, the mother, or both, fails to give the bond required, the court may forthwith commit that person to the custody of the chief of police of the county, there to remain until that person enters into the required bond or otherwise is discharged by due process of law.  If the alleged or presumed father, the mother, or both, fails to appear in any proceeding under this chapter, any bond for that person's appearance shall be forfeited; but the trial of, or other proceedings in, the action shall, nevertheless, proceed as though that person were present; and upon the findings of the court it shall make such orders as it deems proper as though that person were in court.

     In case of forfeiture of any appearance bond, the money collected upon the forfeiture shall be applied in payment of the judgment against the parent whose parent-child relationship is established under this chapter.

     (c)  Regardless of its terms, an agreement, other than an agreement approved by the court in accordance with section 584-13(b), between the alleged or presumed father and the mother or child, shall not bar an action under this section.

     (d)  If an action under this section is brought before the birth of the child, all proceedings shall be stayed until after the birth, except service of process and the taking of depositions to perpetuate testimony.

     (e)  Subject to the requirements of section 584-4(b), where a married woman has not had sexual contact with her spouse or resided in the same house with the spouse for at least three hundred days prior to the birth of the child and the spouse cannot be contacted after due diligence, the court may accept an affidavit by the married woman, attesting to her diligent efforts to contact her spouse and providing clear and convincing evidence to rebut the presumption of his paternity of the subject child, and upon the court's satisfaction, notice to the spouse may be waived and the spouse need not be made a party in the paternity proceedings.  The court, after receiving evidence, may also enter a finding of nonpaternity of the spouse. [L 1975, c 66, pt of §1; am L 1983, c 288, §1; am L 1986, c 332, §19; am L 1987, c 339, §4; am L 1989, c 211, §10; am L 1990, c 281, §11; am L 1991, c 224, §1; am L 2013, c 136, §1]


Cross References


  Sheriff, etc., see §26-14.6.


Case Notes


  Limitation period.  59 H. 259, 581 P.2d 310 (1978).

  A final divorce decree is not an "agreement" within the meaning of subsection (c); it constitutes a final judgment of the family court; thus, this section did not permit mother to escape the preclusive effect of the divorce decree.  99 H. 1, 52 P.3d 255 (2002).

  Section does not permit the relitigation of the issue of paternity where it has already been determined in a prior proceeding.  99 H. 1, 52 P.3d 255 (2002).

  Subsection (a) permitted presumed father to bring a paternity action for the purpose of declaring the nonexistence of a father and child relationship between presumed father and daughter.  9 H. App. 623, 859 P.2d 922 (1993).

  Child support enforcement agency was authorized, under §§576D-3, 576D-4, and subsection (a), to bring action to establish paternity of a child, "born out of wedlock" for purposes of §576D-3(b), where mother, though married to husband at time child was born, alleged that appellant, and not husband, was child's natural father.  88 H. 159 (App.), 963 P.2d 1135 (1998).