§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.



  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.



  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.