§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 within the following time periods:



(1)  If the child is the subject of an adoption
proceeding,



(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, but in no event later than three years after
the child reaches the age of majority; or



(2)  If the child has not become the subject of an
adoption proceeding, within three years after the child reaches the age of
majority; 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)  Section 584-6 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.



(4)  A personal representative in this section 584-6
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]



 



Cross References



 



  Sheriff, etc., see §26-14.6.



 



Case Notes



 



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



  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.



  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.



  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.



  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.