Action Transmittal AT-94-06 Responses Part 3

Paternity Establishment and Revision of CSE Audit Regulations



Response to Comments - Part 3

Effect of a Voluntary Acknowledgment:  Presumption of Paternity; Admissible as 
Evidence--Section 302.70(a)(5)(iv)

1. Comment:  Several commenters asked us to mandate that a voluntary 
acknowledgment creates a conclusive presumption of paternity, as a way of 
giving children finality and improving interstate uniformity.  Conversely, 
other commenters argued that a presumption arising from a voluntary 
acknowledgment should always be rebuttable, since some acknowledging parents 
may mistakenly acknowledge paternity.  One commenter asked that we specify a 
process for how to handle a case when a party who previously signed a 
voluntary acknowledgment of paternity later denies that the man named on the 
acknowledgment is the father.

Response:  We do not have the authority to either mandate or prevent a State 
from having laws under which a voluntary acknowledgment creates a conclusive 
presumption of paternity.  Subsection 466(a)(5)(D) of the Act requires States 
to have laws and procedures under which the voluntary acknowledgment of 
paternity creates a rebuttable, or at the option of the State, conclusive 
presumption of paternity.

Despite the concerns of commenters, we would like to emphasize the benefits of 
this provision of the Federal law.  Prior to enactment of OBRA '93, in many 
States an acknowledgment was simply considered some evidence of paternity.  
The new Federal law and this implementing regulation ensure that the 
acknowledgment creates a rebuttable or conclusive presumption instead. 

In a paternity case, a rebuttable presumption is a rule of evidence that 
shifts the burden of proof to the presumed father to disprove paternity, if he 
chooses to contest paternity after the acknowledgment.  A conclusive 
presumption has the same legal effect as a judgment for paternity.  If a State 
enacts laws under which a voluntary acknowledgment creates a conclusive 
presumption, the State may still allow certain challenges, just as judgments 
can now be challenged.  The mechanics of challenging an acknowledgment, 
whether a rebuttable or conclusive presumption, are left to State law and 
procedure.

2. Comment:  One commenter suggested that the term "conclusive presumption," 
used in connection with both voluntary acknowledgments and genetic test 
results meeting a State's threshold, is confusing and subject to multiple 
interpretations.

Response:  We use the term "conclusive presumption" because it is used in the 
statute.  Basically, a conclusive presumption has the same legal effect as a 
judgment or determination of paternity.  For example, the law of one State 
where a voluntary acknowledgment creates a conclusive presumption reads:  "A 
written acknowledgment by both the man and woman that the man is the father of 
the named child legally establishes the man as the father of the child for all 
purposes."  Another State's law reads:  "The parent and child relationship 
between a child and a man may be established by a written statement of the 
father and mother made under oath acknowledging paternity....  Such 
statement...shall have the same legal effect as a judgment...."  

However, a State may still allow challenges to a conclusive presumption, just 
as judgments can be challenged (e.g., in cases where there is evidence that 
the acknowledgment was obtained by fraud or coercion, or where signatures were 
forged).  

Conditions for Admission of Genetic Test Results as Evidence--Section 
302.70(a)(5)(v)

1. Comment:  Several commenters complained that the requirement regarding 
admission of genetic test results as evidence would interfere with their 
existing procedures.  Some of these commenters requested that we allow 
alternative procedures, besides those contained in the proposed rule, for 
admission of genetic test results.  One commenter asked us to permit a 
timeframe, within which objections to genetic test results must be made, 
triggered by the date of receipt of genetic test results.  

Response:  Section 302.70(a)(5)(v) requires States to have laws and procedures 
under which any objection to genetic test results must be made in writing 
within a specified number of days before any hearing at which such results may 
be introduced into evidence; and if no objection is made, a written report of 
the test results is admissible as evidence of paternity without the need for 
foundation testimony or other proof of authenticity or accuracy.  

This provision has two major benefits.  First, by only allowing challenges 
that are made within a designated timeframe, it prevents last-minute 
challenges to genetic test results.  Last-minute challenges are particularly 
difficult to meet since they may require testimony from laboratory technicians 
and experts who often live out-of-state and must travel long distances.  

Second, in cases where no objection is timely raised, this provision expedites 
the process by allowing admission of a written report of the genetic test 
results without the need for foundation testimony.  Prior to the enactment of 
OBRA '93, some States had cumbersome foundation requirements (e.g., requiring 
the testimony of every person involved with the chain of custody of the blood 
sample) that are unnecessary if no objection to the test results is raised.  

In some respects, this provision of the law and regulation gives States 
flexibility.  States may set the "specified number of days" within which 
objections to genetic test results must be made before a hearing.  The U.S. 
Commission on Interstate Child Support recommended that States require any 
objection to genetic testing results be made in writing at least 21 days prior 
to trial.  Before the enactment of OBRA '93, at least four States had a 
timeframe that required an objection to genetic test results be made at least 
20 days prior to trial; two States required objections to be made at least 30 
days prior to trial.

Furthermore, while this rule requires that genetic test results be admissible 
without foundation in cases where no timely objection is raised, the judge or 
decisionmaker who determines matters of fact still must decide what weight to 
accord the test results, in light of other evidence presented, if the results 
do not reach the State's threshold for creating a presumption of paternity.  
Moreover, this provision does not prevent a State or its tribunals from 
setting standards for laboratory accreditation or procedures and parameters 
regarding what type of tests can be admissible as evidence.  While we 
encourage all States to admit genetic testing results that have proven to be 
reliable, we recognize that as new testing technologies are developed, there 
may be a need to critically examine new procedures in the scientific community 
and in the courts before test results from such procedures are used on a 
widespread basis.
 
In other respects, however, this provision is very specific.  Section 
466(a)(5)(F) of the Act requires that an objection must be made "a specified 
number of days before a hearing at which such results may be introduced into 
evidence".  State timeframes that allow objections within a specified number 
of days of "receiving a copy of the testing report" or "after service of the 
written test results" do not require objections to be raised a specified 
period prior to the hearing, and therefore do not meet the requirements of 
Federal law.  However, a State with such a timeframe would satisfy Federal 
requirements if:  (1) its State law also includes a timeframe for raising 
objections within a specified number of days prior to a hearing, or (2) its 
State law requires that a request for genetic tests must be made, and testing 
completed, within a specified number of days prior to the hearing.  In other 
words, a State law which specified that objections must be made, for example, 
"within 20 days of receipt of genetic testing results or 20 days prior to the 
hearing, whichever date is earliest," would meet the requirements of this 
rule.

State statutes must require objections to be raised within a specified number 
of days before a hearing.  Allowing objections "within the time limit" or 
"within the time allowed by the court" do not meet Federal requirements unless 
court rules, regulations, or other procedures also specify a standard number 
of days allowed by law.  

State law, in addition to including timeframes for raising objections to 
genetic test results, must also indicate that a written report of such results 
is admissible as evidence without foundation testimony if no written objection 
is raised.  A State, through statute, regulation, or binding procedure, must 
meet both parts of the requirement at 302.70(a)(5)(v).

2. Comment:  To ensure due process, one commenter urged that States should be 
able to require foundation testimony (e.g., setting forth the chain of custody 
of the blood sample) unless the parties stipulate that genetic test results 
may be introduced as evidence.

Response:  As clearly indicated by the Federal statute, State law must provide 
that if no timely objection is made, genetic test results are admissible as 
evidence of paternity without the need for foundation testimony or other proof 
of authenticity or accuracy.  This requirement does not compromise due process 
protections.  The timeframe requiring objections to be made in writing before 
the hearing merely ensures that the other party is fairly informed and given a 
specified period within which to arrange for witnesses to testify in support 
of the test results.  The alleged father can object to test results within the 
time period specified by the State in accordance with 302.70(a)(5)(v) and 
make any challenges warranted.  If the test results are admitted, the alleged 
father can introduce other evidence (e.g., regarding his relationship with the 
mother during the probable period of conception).  Even if the test results 
meet the State's threshold and create a presumption of paternity, the alleged 
father can attempt to rebut the presumption by presenting other evidence.  It 
should be recognized that genetic test results are a unique form of material 
evidence in a paternity hearing.  If there are serious doubts concerning chain 
of custody, laboratory procedures or analysis of the results, the testing can 
simply be replicated at the same facility or another laboratory.  All 
"objections" to the evidence can and should be resolved before any hearing 
ever occurs.

3. Comment:  One commenter asked if a State could include an exception to its 
timeframe for raising objections to genetic test results, for cases where the 
party does not receive the genetic test results in time to comply with the 
objection period.  Under the exception, the party would have to respond at 
least 24 hours (or a similar short period) prior to the hearing.  This would 
prevent the IV-D office from having to request a continuance of the hearing in 
cases in which the test results are received after the timeframe for objecting 
has already expired.

Response:  Such an exception is allowable.  Basically, the State would have 
two timeframes--a regular timeframe and a shorter timeframe for use when test 
results are received late (after the regular timeframe for objecting has 
elapsed).  Federal requirements do not prevent a State from having more than 
one timeframe, as long each timeframe includes a "specified number of days" 
and satisfies other requirements at 302.70(a)(5)(v).

Presumption of Paternity Based on Genetic Test Results--Section 
302.70(a)(5)(vi)

1. Comment:  Some commenters suggested that OCSE set a standard national 
threshold or a minimum threshold for creating a conclusive presumption of 
paternity.  

Response:  We believe that by using the open-ended phrase "a threshold 
probability", the statute gives States flexibility to designate a specific 
threshold probability that creates a presumption of paternity.  There appears 
to be no widespread agreement in the child support or genetic testing 
community presently regarding what percentage should be designated as the 
threshold, and commenters failed to suggest a specific threshold.  Prior to 
the enactment of OBRA '93, about half of the States had adopted a presumption 
of paternity standard based on genetic test results.  These States' statutory 
threshold probabilities generally fall at a point in the range of 95 to 99 
percent.  We recommend that the remaining States choose a percentage within 
this range.

2. Comment:  In the preamble to the proposed rule, we suggested that the 
threshold probability should be the inclusionary probability that the alleged 
father is the biological father of the child.  Some commenters requested that 
States be allowed to tie the threshold to either the paternity index or 
another statistical standard determined by the State based upon the results of 
the genetic tests.  

Response:  The statute, and implementing regulation at 
302.70(a)(5)(vi) require that a presumption of paternity be based upon 
genetic test results indicating a threshold probability of the alleged father 
being the father of the child.  We are allowing a State to tie its threshold 
to an inclusionary probability, whether expressed as the paternity index or 
another statistical standard that indicates the probability, based upon the 
results of the specific testing performed, that the accused man is the 
biological father of the child.
    
The paternity index expresses the likelihood that the alleged father is the 
true biological father compared to the likelihood that a random man of the 
same race is the father.  The paternity index can be converted to a 
probability of paternity through a mathematical calculation, and is merely 
another way of expressing the "likelihood" or the inclusionary probability of 
paternity.

3. Comment:  One commenter suggested that tighter standards regarding the use 
or acceptance of genetic test results are needed if test results can create a 
conclusive presumption of paternity.

Response:  While OCSE does not have the statutory authority to establish such 
testing standards, some private entities do accredit genetic testing 
laboratories and techniques.  We encourage States to use high-quality 
laboratories.  OCSE provided a listing of laboratories in Directory:  Genetic 
Testing Laboratories (July 1993, 3rd Edition).

4. Comment:  One commenter requested clarification regarding how States are to 
resolve cases involving both presumed and putative fathers or more than one 
presumed father.

Response:  In some cases, the presumption of paternity created by genetic test 
results may conflict with a presumption created by a voluntary acknowledgment, 
a presumption of legitimacy created by marriage, or another presumption.  For 
example, a child born to a married woman is presumed to have been fathered by 
the woman's husband in most States; however, genetic test results could create 
a presumption (either rebuttable or conclusive) that another man is actually 
the father.  State law determines how conflicting presumptions are handled, 
and several States have enacted legislation to address this issue.  The 
Uniform Parentage Act (UPA), a model State law that approximately 18 States 
have enacted, provides that 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.  Presumptions may be 
rebutted and, finally, the paternity issue is resolved by a court or 
administrative decree.

The presumption based on genetic test results required by 
302.70(a)(5)(vi) and the presumption based on a voluntary acknowledgment 
required by 302.70(a)(5)(iv) are evidentiary requirements.  States may have 
laws which establish additional presumptions, and rules for resolving apparent 
conflicts.  A conclusive presumption would take precedence over a rebuttable 
presumption.  In cases where two or more rebuttable presumptions applied, the 
trier of fact would be required to sort out the evidentiary considerations and 
make the ultimate decision.

Voluntary Acknowledgment is Basis for Seeking Support Order--Sections 
302.70(a)(5)(vii) and 303.4(f)

1. Comment:  Numerous commenters objected to the proposed provision under 
which genetic test results meeting or exceeding a State's threshold 
probability must be recognized as the basis for seeking a support order 
without requiring any further proceedings to establish paternity.  Many 
commenters suggested that since this provision was not in the Federal statute, 
OCSE did not have the authority to include it in regulation.  Commenters also 
argued that such a requirement would unnecessarily interfere with existing, 
successful State procedures.  For instance, according to commenters, since 
some States require a paternity proceeding to be filed before genetic test 
results can be obtained, paternity actions would have to be filed and 
immediately dismissed upon receipt of test results in most cases (either 
because the threshold probability was met, requiring action to seek a support 
order to begin, or because the man was excluded).  According to another 
commenter, at least one State's law prohibits discovery of assets and income 
(necessary for support order establishment) until after paternity has been 
established or action is filed in court.  Other commenters worried that this 
requirement would impede due process by not giving the alleged father 
sufficient opportunity to challenge the genetic testing evidence. 

Response:  While we believe we do have authority under section 1102 of the Act 
to include such a requirement, we are, in response to the overwhelming number 
of commenters, encouraging, but not mandating, that genetic test results 
meeting or exceeding the State's threshold be recognized as the basis for 
seeking a support order without further action to establish paternity.  We are 
limiting the requirement at 302.70(a)(5)(vii) to what is explicitly mandated 
by the statute--a voluntary acknowledgment must be recognized as the basis for 
seeking a support order without further action to establish paternity.

We had proposed to expand this requirement to genetic test results meeting a 
State's threshold as a way of ensuring that support orders are established as 
quickly as possible.  However, as some commenters pointed out, as long as a 
State meets the expedited process timeframes under 303.101(b)(2), there is no 
need to unnecessarily interfere with a State's procedures.  By limiting this 
requirement to what is mandated by statute, we are giving States more 
flexibility.  This approach is more results-oriented since it ensures 
expeditious outcomes through timeframes rather than a prescriptive procedural 
requirement.

However, we still encourage States to consider implementing procedures under 
which genetic test results meeting or exceeding the State's threshold must be 
recognized as the basis for seeking a support order without further action to 
establish paternity.  In fact, such procedures may help States meet expedited 
process timeframes.  For the purpose of consistency, a State may want to give 
the same weight to genetic test results (at a certain threshold level) as it 
does to a voluntary acknowledgment as the basis for seeking a support order.  
We do not believe such procedures compromise due process.  If the presumption, 
based upon genetic test results, is rebuttable, and a written objection is 
timely filed, the alleged father may be given the opportunity during the 
support establishment proceeding to contest paternity.  
2. Comment:  For States where a voluntary acknowledgment creates a rebuttable 
presumption of paternity, several commenters expressed confusion about how the 
State could seek a paternity determination based on the acknowledgment when 
OBRA '93 requires State law to recognize a voluntary acknowledgment as the 
basis for seeking a support order without further proceedings to establish 
paternity.  One commenter asked whether a paternity determination is required 
if a support order can be entered without a paternity determination.  Several 
other commenters suggested that if a State's voluntary acknowledgment creates 
a rebuttable presumption of paternity, the presumption should automatically 
"ripen" into a conclusive presumption or determination of paternity within a 
specified period of time.

Response:  Although a voluntary acknowledgment must serve as the basis for 
seeking a support order without further proceedings to establish paternity, 
the IV-D agency must still establish paternity in accordance with State law.  
The statute merely precludes State requirements that the paternity 
determination must be a separate, preliminary action prior to a proceeding 
seeking support for the child.  The voluntary acknowledgment may be the basis 
for seeking an immediate temporary support order, pending a final 
determination of paternity, or the request for support and the paternity 
proceeding could be combined.  

The IV-D agency must meet two requirements once a father voluntarily 
acknowledges paternity.  First, action to seek a child support order must 
begin based upon the acknowledgment, without waiting for further proceedings 
to establish paternity.  Second, unless the acknowledgment by itself 
establishes paternity, the IV-D agency must take further action to establish 
paternity in accordance with legal process under State law.    

In order to meet both of these requirements, we encourage States where a 
voluntary acknowledgment creates a rebuttable presumption of paternity to 
combine paternity and support order establishment in the same proceeding, if 
both are needed in a case.  If the 
IV-D agency seeks both paternity and support in the same proceeding, it may 
also be possible to obtain a temporary support order pending a final judgment.    

Alternatively, a State may choose to establish support awards on the basis of 
a rebuttable presumption of paternity, and to convert the presumption to a 
final paternity determination through subsequent administrative or judicial 
processes.  For example, State law could provide that the rebuttable 
presumption of paternity becomes, by operation of State law, a conclusive 
presumption or a determination of paternity if not challenged within a 
specified period of time.  Another option would be to permit the presumption 
to be challenged in a separate proceeding after the intermediate support order 
is entered based upon the voluntary acknowledgment.  In any event, paternity 
establishment is a mandatory IV-D function, and a final determination must be 
made in accordance with the timeframes.
  
If under State law, a voluntary acknowledgment creates a conclusive 
presumption of paternity (which is a legal determination of paternity), the 
IV-D agency does not need to take any further action to establish paternity 
and may immediately move to seek a support order on the basis of an 
acknowledgment.

3. Comment:  Several States' procedures provide for the filing or ratification 
of voluntary acknowledgments by a court or administrative agency.  Commenters 
asked whether such filing/ratification could occur prior to initiation of 
action to establish a support order on the basis of the acknowledgment, or 
whether filing/ratification would be considered "further proceedings to 
establish paternity" under 302.70(a)(5)(vii).  Other commenters asked if such 
filing/ratification could occur as a prerequisite to the acknowledgment 
creating a rebuttable or conclusive presumption of paternity in accordance 
with 
302.70(a)(5)(iv), or whether the acknowledgment itself would have to create a 
presumption of paternity.

Response:  In IV-D cases, we would not construe mere filing or ratification of 
an acknowledgment by a court or administrative agency as "further proceedings 
to establish paternity" (emphasis added) if such filing/ratification did not 
require a hearing and did not unreasonably delay seeking a support order.  In 
most States with filing or ratification procedures, the process is pro forma 
and completed in a matter of days.  If a State's filing/ratification 
procedures meet these conditions, it may file or ratify an acknowledgment 
prior to initiating support proceedings in IV-D cases.  However, we encourage 
States to combine any filing/ratification process with the support order 
establishment process so that there will be no delay (e.g., if an 
acknowledgment must be filed with the court it could be done as part of the 
proceeding for support order establishment).

Similarly, under current law, filing/ratification of an acknowledgment can be 
a prerequisite to the creation of a rebuttable or conclusive presumption of 
paternity.  For example, the Uniform Parentage Act (UPA) establishes a 
presumption of paternity if a man "acknowledges his paternity of the child in 
a writing filed with the appropriate court or Vital Statistics Bureau 
(emphasis added)...."  Some States require filing with a court or agency as 
part of the voluntary acknowledgment process itself.  The issue of whether or 
not filing/ratification is part of the voluntary acknowledgment process or a 
post-acknowledgment prerequisite to the establishment of a presumption of a 
paternity is largely a matter of semantics.  These procedures are matters of 
State discretion so long as the acknowledgment, ultimately, has presumptive 
evidentiary value and is recognized as the basis for seeking a support order.

Default Orders--Sections 302.70(a)(5)(viii) and 303.5(f)

1. Comment:  Commenters asked whether State law must provide for entry of a 
default order for both failure to appear at a hearing and failure to respond 
to a notice.  Other commenters asked whether State law must require default 
orders even in cases where the defendant initially files an answer or other 
appropriate response, but later fails to appear at a hearing.  In some States, 
a default order cannot be issued once the defendant files an initial answer or 
response, unless that initial answer is stricken.

Response:  We have reworded 302.70(a)(5)(viii) for clarity.  State law must 
require entry of default orders upon showing that the alleged father failed to 
respond to service of process in accordance with State procedures (assuming 
that process was served and any other showing required under State law has 
been met).  State procedures generally require the alleged father to file a 
written response within a certain timeframe or to appear on a specific date or 
within a reasonable period of time specified by the State.  A State should 
link entry of a default order to failure of the alleged father to act in 
accordance with the procedure the State has established.

In addition, State law need not require a default order to be entered if the 
alleged father initially responds in accordance with State procedures but 
later fails to appear at a hearing or respond to a notice.  Section 
302.70(a)(5)(viii) only requires States to enter default orders in cases where 
there is no initial response from the alleged father (upon showing of service 
of process and any additional showing required under State law).  States may, 
however, choose to go beyond this minimum requirement by compelling tribunals 
to enter default orders in cases even if the alleged father initially 
responds.  For example, some States provide for the use of default judgments 
to address situations in which the alleged father fails to cooperate with an 
order to appear for genetic testing.

2. Comment:  One commenter suggested that all alleged fathers should be 
provided advance notice specifying the conditions under which a default order 
may be entered.  

Response:  We are leaving this matter to State law.  We believe that States 
already provide advance notice whenever there is the potential for a default 
order, generally as part of the notice sent to the alleged father requesting 
him to respond or appear at a hearing.  Some States may require additional 
proceedings prior to entry of the default order to ensure that the alleged 
father was properly notified and is competent to respond.  States also may 
have procedures for challenging and setting aside default orders, and may 
notify the parties of this process when default orders are entered.

3.  Comment:  One commenter suggested that the provision regarding default 
orders should be permissive rather than mandatory, thereby allowing exercise 
of judicial discretion based on the specific circumstances of each case.

Response:  To meet the requirements of the Federal statute, States must 
require, not simply allow, tribunals to enter default orders establishing 
paternity in accordance with 302.70(a)(5)(viii).  Prior to enactment of OBRA 
'93, most States already had provisions for entry of judgments by default as 
part of their civil procedure code or statute.  At least eleven States also 
had default provisions that applied specifically to paternity cases.  However, 
in many States the default provision was permissive rather than compulsory.  
States may need to change such permissive default laws to meet Federal 
statutory requirements, which will ensure that default orders are routinely 
issued in paternity cases, where appropriate.  Judicial discretion not to 
enter the default order still may be applied, for instance, where the 
circumstances indicate that the alleged father may not have been properly 
served or may not have had the capability to respond (e.g., he has a mental 
deficiency or is a minor).

4. Comment:  One commenter asked why the proposed regulation required State 
default laws to apply to contested paternity cases.

Response:  We have not included the word "contested" in the final requirement 
at 302.70(a)(5)(viii).  We agree that use of the word "contested" is 
unnecessary.  Under some States' definition of a "contested" case, a case may 
not actually be contested until the alleged father responds and denies 
paternity.  The default provision applies to cases where the alleged father 
fails to respond.

5. Comment:  One commenter requested that we expand the default requirement to 
apply to support establishment actions as well as paternity actions.

Response:  Because the statute specifically limits the scope of the default 
provision to paternity establishment, we are limiting its application in this 
regulation.  Therefore, these regulations do not compel State law to require 
that default orders be entered in support order establishment actions.

Regulations at 303.101(d)(4) do require that presiding officers under 
expedited processes have the ability to enter default orders in both paternity 
and support establishment cases.  However, State law may give the presiding 
officers discretion regarding whether or not to actually enter the default 
orders in support establishment actions.  For example, if there is no evidence 
sufficient to apply the guidelines, it may be impossible to enter a support 
order by default.  We encourage presiding officers to enter default orders in 
appropriate support establishment cases.  In paternity establishment cases, 
State law must compel, not simply allow, presiding officers to enter default 
orders in accordance with 302.70(a)(5)(viii).  

6.  Comment:  Some commenters asked us to specify what "additional showing" is 
required for entry of a default order in accordance with 302.70(a)(5)(viii).  
For example, one commenter suggested that we specify that "additional showing" 
means a prima facie case.

Response:  Since the statute says "any additional showing required by State 
law" (emphasis added), States have discretion to specify their own 
requirements.  These regulations reflect the discretion afforded by the 
statute.  We recommend, in order to withstand possible future challenge, that 
States require some evidence of paternity, such as a sworn statement or 
allegation by the mother, before entering a default order.  In addition, 
States may require some evidence or showing that the alleged father is not 
under a legal or medical disability or subject to protection of the Soldiers 
and Sailors Civil Relief Act (50 U.S.C. 501-591).

Full Faith and Credit for Paternity Determinations--Section 302.70(a)(11)

1. Comment:  Several commenters questioned how a State should treat a 
voluntary acknowledgment or genetic test results obtained by another State, 
particularly if the acknowledgment or test results created a rebuttable 
presumption in one State and a conclusive presumption in the other.

Response:  Under the principle of full faith and credit, an out-of-State 
paternity judgment is to be given the same force and effect in other States as 
it is given in the State of origin.  When a State gives full faith and credit 
to another State's paternity judgment, it honors that judgment according to 
its terms, just as if it had been entered in the second State.    

Under OBRA '93, a State must have laws providing that it will recognize a 
determination of paternity made by another State whether it is established 
through voluntary acknowledgment or through administrative or judicial 
processes.  A conclusive presumption based upon genetic test results or a 
voluntary acknowledgment which creates a conclusive presumption of paternity 
in the State where it is acknowledged should have the same force and effect as 
a judgment for paternity.  Other States must give full faith and credit to 
paternity determinations based upon another State's conclusive presumption.  

Generally, if no determination of paternity has previously been made, State 
law of the forum State (i.e., the State where the paternity/support action 
occurs) will determine the legal weight given to a voluntary acknowledgment, 
genetic test results, or other evidence (regardless of whether the 
acknowledgment, test results, or evidence were obtained by or in the State or 
by another State).  

2. Comment:  Some commenters asked whether a paternity determination made by 
one State could be contested or overcome in another State, and if so, which 
State's laws and procedures are applicable.

Response:  A paternity determination, like a judgment, even though entitled to 
full faith and credit is generally subject to collateral attack.  Depending on 
State law, a paternity determination could be attacked if it was fraudulently 
obtained, for example, or if the issuing tribunal lacked jurisdiction.  A 
collateral attack may be barred, however, if the party challenging the 
determination had the opportunity to raise or previously raised the same 
issues at the time the paternity determination was made.  The forum State's 
law governing choice of law will determine which State's laws and procedures 
apply when a judgment or paternity determination, otherwise entitled to full 
faith and credit, is challenged.

3. Comment:  One commenter requested guidance regarding the degree to which 
determinations of paternity established by default are subject to full faith 
and credit, since default orders are especially vulnerable to collateral 
attack based on claims of improper service of process.  

Response:  A State must give full faith and credit to any determination of 
paternity, including a determination established by default.  It is imperative 
that State tribunals require a showing of service of process prior to entry of 
a default order in accordance with 302.70(a)(5)(viii) in order to limit 
future challenges based on inadequate service.

4. Comment:  With the option for each State to implement rebuttable or 
conclusive presumptions both for voluntary acknowledgments and genetic test 
results meeting a State's threshold, one commenter asked how a State can 
determine the legal effect of an acknowledgment or test results obtained in 
another State for purposes of determining if that acknowledgment/test results 
should be afforded full faith and credit. 
 
Response:  States may consult the Interstate Roster and Referral Guide which 
will continue to be regularly updated.  Furthermore, in an interstate case, 
the initiating State should notify the responding State of the legal 
significance of any previously-obtained voluntary acknowledgment, genetic test 
results, or other presumptive evidence of paternity.  

5. Comment:  One commenter asked that we require States to give full faith and 
credit to a paternity determination made by a Tribal Court.

Response:  The Full Faith and Credit Clause of the U.S. Constitution provides 
that "full faith and credit shall be given in each State to the Public Acts, 
Records, and Judicial Proceedings of every other State."  Congress, by 
enactment of 28 U.S.C. 1738 expanded full faith and credit to the judicial 
proceedings of any court of any "State, Territory, or Possession of the United 
States".  Some States have interpreted that language to include tribal 
governments, and other States and Tribal Courts have voluntarily recognized 
and deferred to each others judgments and laws as a matter of comity.  

"Full faith and credit" is a concept based upon the respect and deference 
which the forum jurisdiction accords to the original rendering jurisdiction.  
We believe that paternity determinations made by Tribal Courts, especially 
those entered pursuant to cooperative agreement with the IV-D agency in 
accordance with State laws and Federal requirements, are entitled to such 
deference.  We encourage States to voluntarily grant full faith and credit to 
tribal determinations of paternity, whether they are required to by Federal 
statute or not.