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
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
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
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
Conditions for Admission of Genetic Test Results as Evidence--Section
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
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
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
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
1. Comment: Some commenters suggested that OCSE set a standard national
threshold or a minimum threshold for creating a conclusive presumption of
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
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
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
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
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
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
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
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.