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2005 Testimony

Testimony Before The House Judiciary Committee

Duane Dekrey, Chairman

Regarding House Bill 1121 - Paternity, Uniform Parentage Act, and related issues

January 17, 2005

Chairman DeKrey, members of the House Judiciary Committee, I am James Fleming, Deputy Director and General Counsel of the State Child Support Enforcement Division of the Department of Human Services. I am here to express the Department's support for House Bill 1121 with some amendments.

We respect and share the interest of the Commission on Uniform State Laws that there be a minimal number of state-specific amendments. Therefore, we have attempted to limit our amendments to substantive items or clarifications, even if we prefer the language of current law. This is also an area regulated in part by federal requirements on the child support enforcement program.

A core function of the child support enforcement program under Title IV-D of the Social Security Act is to establish paternity for children who are receiving our services. Our program handles a large number of paternity cases each year. At the close of the 2004 federal fiscal year, there were 18,093 children in our caseload who had been born out of wedlock. As of the end of December 2004, paternity had been established for 16,335 born-out-of-wedlock children in our caseload, or 90.28% of the prior year's total. Paternity establishment is one of five performance measures on which federal incentives are distributed, and is one of three measures that can result in a penalty for poor performance. Throughout the federal fiscal year, children are added or removed from our caseload. At the end of each federal fiscal year, we need to achieve at least a 90% average to avoid a federal penalty to the TANF program.

Overall, UPA 2002 would be a significant improvement over our current paternity law, which was enacted in 1975. UPA 2002 provides more guidance in many areas than current law. One such area is when there are multiple presumed fathers and it is necessary to determine which man should be legally established as the child's father. Across the country, courts and legislatures are struggling with the important policy issue of whether the rights and responsibilities of being a parent belong to the child's biological parent or to the child's “psychological” parent. The child's needs for stability and finality also must be considered. UPA 2002 does not settle this issue with a single arbitrary rule, but establishes a framework for a court to make the decision that is generally lacking in current law.

Several years ago, the legislature established a policy in North Dakota that a father has a limited number of years to dispute his paternity of a child. However, a hole in the law exists, recently confirmed by the North Dakota Supreme Court in Rydberg v. Rydberg, which allowed a psychological father to successfully walk out of the child's life after more than 10 years and leave the child without a father. This hole in the law defeats the public policy of the state, unreasonably disrupts the life of a child who has bonded with a psychological parent, and needs to be filled. We have proposed an amendment to address this concern.

Historically, a “paternity” case involved a formal court action to determine the father of the child. With the development of genetic tests, the outcome of these cases became much more predictable. However, one cannot discuss paternity today without addressing the use of voluntary paternity acknowledgments or VPAs. A VPA is a simple document that parents can use to establish paternity of a child without going to court in a formal paternity action. Since the enactment of current North Dakota Century Code chapter 14-19 in 1995 and the full implementation of that chapter through a revised acknowledgment form in 1998, a valid VPA has been the equivalent of paternity judgment of a court. With a valid VPA, unmarried parents can immediately establish the paternity of the child without the cost and burden of a formal paternity action. It is a mandatory function of our program to sponsor a hospital-based paternity acknowledgment program.

North Dakota has a very successful VPA program under N.D.C.C. chapter 14-19, which is a separate chapter from the current paternity act. In some respects, the current VPA law is even better than the VPA article in UPA 2002. Our amendments in this area are intended to ensure we don't take a step backward and lose the benefit of what has worked well under current law.

Mr. Chairman, before describing the amendments we propose, I would be happy to answer any questions the committee may have.

Amended House Bill 1121 (16kb pdf)

Explanation of Proposed Substantive Changes

  1. Change: New section on terminations of parental rights Reason: Transfer and revision of existing language in 14-17-24(6)
  2. Change: Remove holding out presumption – Page 7, lines 29 and 30 Reason: As a legal presumption of paternity, we recommend against authorizing a provision that is so subjective and fact-dependent.
  3. Change: Require signature be witnessed instead of under oath – Pages 8, 9 Reason: Federal requirements
  4. Change: One year to challenge VPA instead of two years – Pages 8, 10 Reason: Current law
  5. Change: VPA authorized for children born outside North Dakota – Page 7 Reason: Clarification and continuation of current law
  6. Change: VPA serves as the basis for child support action – Page 9, line 28 Reason: Current law
  7. Change: Proceeding to rescind VPA is not required – Page 10, 18 Reason: Unnecessary formality and continuation of current law
  8. Change: VPA developed and copies shared with DHS – Page 11, lines 19, 25 Reason: Current law and is needed to ensure federal compliance
  9. Change: Limit disestablishment actions or defenses to two years – Page 17, 18 Reason: Consistent with other timeframes for determining the parentage of a child and promotes finality for the child.
  10. Change: Content and filing of paternity orders – Pages 22, 23 Reason: Current law and is needed to ensure federal compliance
  11. Change: Liability for collection – Page 24 Reason: Protection of public funds
  12. Change: Restrict inclusion of man's name on birth certificates – Page 25 Reason: Federal requirements


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