Chapter Eight Paternity

• Library: Marital Litigation in South Carolina (SCBar) (2020 Ed.)

Chapter Eight PATERNITY²

A. In General

Paternity is sometimes the threshold question in actions for child custody and support. For many years in South Carolina, the common law, as stated in McGlohon v. Harlan, 254 S.C. 207, 174 S.E.2d 753 (1970), prevailed:

The common law recognized no legal duty on the part of a father to provide for the support of an illegitimate child. He was said to be a filius nullius, the child of nobody. There was no procedure for determining paternity. An illegitimate child had no rights against an asserted parent that could be enforced in court.

McGlohon at 211, 174 S.E.2d at 755.

Much has changed in paternity law since that time. Today, parents are obligated to support all of their children:

Any able-bodied person capable of earning a livelihood who shall, without just cause or excuse, abandon or fail to provide reasonable support to his or her . . . minor unmarried legitimate or illegitimate child dependent on him or her shall be deemed guilty of a misdemeanor and upon conviction shall be imprisoned for a term of not exceeding one year or be fined not less than three hundred dollars, or both, in the discretion of the circuit court.

S.C. Code Ann. § 63-5-20(A) (2009) (emphasis added).

If a finding of paternity is made, either by operation of law or court decree, it will be difficult to challenge at a later date. A foreign paternity determination whether established through administrative or judicial process is admissible at a hearing to determine paternity, and this determination "creates a conclusive presumption of paternity." S.C. Code Ann. § 63-17-60(A)(6) (2009). One assumes a paternity determination made in a South Carolina judicial or administrative proceeding will be treated similarly. The Uniform Interstate Family Support Act (UIFSA) specifically prohibits a party whose parentage of a child has been determined by law from pleading nonparentage as a defense to a proceeding under UIFSA. S.C. Code Ann. § 63-17-3350 (2009).

All parties to paternity and child support actions must provide certain information, including social security numbers, to the judicial or administrative tribunal hearing the case. They must also notify the tribunal of any change in this information within ten days. Service of process in subsequent support actions can be accomplished by first class mail to the most recent residence or employer address on file, if the person cannot be located for personal service after due diligence. South Carolina Code Ann. § 63-15-450 (2009), enacted in 1997, reads:

(A) An obligor and an obligee in a child support or paternity action, whether judicial or administrative, shall provide the following information to the tribunal:

(1) residence address;
(2) mailing address;
(3) telephone number;
(4) social security number;
(5) driver's license number; and
(6) name, address, and telephone number of employer.

The parties shall notify the tribunal of any changes to the above-referenced information within ten days of the effective date of the change. In subsequent support actions between the obligor and obligee or their assignees, upon sufficient showing that diligent effort has been made to ascertain the location of the party, delivery by first class mail of written notice to the obligor and the obligee at the residential or employer address most recently filed with the tribunal constitutes service of process.
(B) "Tribunal" is defined for purposes of this section as the family court or the Department of Social Services, Child Support Enforcement Division or its designee.

If an action threatens to make a child illegitimate, the presumed father and the putative father must be made parties to the action. If the child is a minor, a guardian ad litem must be appointed who cannot be either the mother or the putative or presumed fathers. S.C. Code Ann. § 63-17-10(E) (2009).

Major changes in paternity law occurred: (1) in 1984 with the enactment of the Determination of Paternity Act (S.C. Code Ann. §§ 63-17-10 to 63-17-70 (2009)); (2) in 1994 and 2007 with the passage of and amendments to the Uniform Interstate Family Support Act (UIFSA) (S.C. Code Ann. §§ 63-17-2900 to 63-17-4040 (2009)); and (3) in 1995 and 1996 with the enactment of and amendments to the Administrative Process for Establishing and Enforcing Paternity and Child Support Act (S.C. Code Ann. §§ 63-17-710 to 63-17-850 (2009)).

These sections of the Children's Code present specific rules and procedures for determining paternity, including standing, jurisdiction, venue, genetic testing, and special procedural and evidentiary rules for judicial and administrative determinations of paternity. This chapter provides an overview of South Carolina paternity laws, but many of the details are omitted and reference to specific statutes should be made by lawyers handling paternity cases.

B. Jurisdiction, Venue, and Standing

As discussed more fully in the chapter on jurisdiction, if the family court lacks subject matter jurisdiction, it cannot obtain it. A challenge to subject matter jurisdiction can be raised at any time during the proceeding, even at the appellate level. Any action taken by a court without subject matter jurisdiction is void. This includes an objection that statutorily imposed time limits were not observed.

The family court and the Child Support Enforcement Division of the Department of Social Services (the Division) share jurisdiction over proceedings to determine paternity. Although S.C. Code Ann. § 63-3-530(A)(7) (2009) indicates that the family court has exclusive jurisdiction, other legislation gives the Division concurrent jurisdiction to determine paternity in some cases. South Carolina Code Ann. § 63-17-710 (2009) provides: "[n]otwithstanding Section 63-3-530 and any other provision of law, the Child Support Enforcement Division of the Department of Social Services also has jurisdiction to establish paternity ... in cases brought pursuant to Title IV-D of the Social Security Act in accordance with this article" (the Division assists people receiving public assistance and anyone else who requests its assistance upon payment of a nominal fee).

The Division has status as a tribunal pursuant to the Uniform Interstate Family Support Act (UIFSA). "'Tribunal' means a court, administrative agency, or quasi-judicial entity authorized to establish, enforce, and modify support orders or to determine parentage." S.C. Code Ann. § 63-17-2910(24) (2009). "The tribunals of this State are the family court and the support enforcement agency. For purposes of continuing exclusive jurisdiction under this subarticle, the tribunals of this State have concurrent jurisdiction to establish, modify, and enforce child support in cases being administered pursuant to Title IV-D of the Social Security Act." S.C. Code Ann. § 63-17-2920 (2009). UIFSA specifically provides that "a responding tribunal of this State, to the extent not prohibited by other law, may do one or more of the following: (1) . . . determine parentage." S.C. Code Ann. § 63-17-3250(B) (2009). Additionally, S.C. Code Ann. § 63-17-710 (2009) provides that "[n]otwithstanding Section 63-3-530 and any other provision of law, the Child Support Enforcement Division of the Department of Social Services, or its designee, also has jurisdiction to establish paternity . . . ."

There is no statute of limitations for bringing a paternity or child support action. Smith v. Doe, 366 S.C. 469, 623 S.E.2d 370 (2005). The 34-year-old child was so disabled from birth that she could not support herself.

The probate court has subject matter jurisdiction to decide paternity for the purpose of determining heirs. The Supreme Court overturned the holdings of Neely v. Thomasson, 355 S.C. 521, 586 S.E.2d 141 (Ct. App. 2003), and Simmons v. Bellamy, 349 S.C. 473, 562 S.E.2d 687 (Ct. App. 2002), that the family court has exclusive jurisdiction to determine paternity. Neely v. Thomasson, 365 S.C. 345, 618 S.E.2d 884 (2005).

The family court has concurrent jurisdiction with the probate court to hear and determine matters related to paternity. The legislature amended S.C. Code Ann. §§ 63-3-530 and 62-1-302 in June, 2005.

Section 63-3-530(B) provides for "concurrent jurisdiction with the probate court" as follows:

Notwithstanding another provision of law, the family court and the probate court have concurrent jurisdiction to hear and determine matters related to paternity, [common law] marriage, and interpretation of marital agreements; except that the concurrent jurisdiction of the probate court extends only to matters dealing with the estate, trust, and guardianship and conservatorship actions before the probate court.

South Carolina Code Ann. § 62-1-302 relating to the jurisdiction of the probate court was amended by adding the following language:

(c) The probate court has jurisdiction to hear and determine issues related to paternity, [common law] marriage, and interpretation of marital agreements in connection with estate, trust, guardianship, and conservatorship actions pending before it, concurrent with that of the family court, pursuant to Section 63-3-530.

UIFSA extends the concept of long-arm jurisdiction as broadly as possible. The family court may exercise personal jurisdiction over a nonresident in a proceeding to establish, enforce, or modify a support order or to determine parentage if:

(1) the individual is personally served in South Carolina;
(2) the individual submits to the jurisdiction of this state by consent, by entering a general appearance, or by filing a responsive pleading having the effect of waiving any contest to personal jurisdiction;
(3) the individual resided with the child in South Carolina;
(4) the individual resided in South Carolina and provided prenatal expenses or support for the child;
(5) the child resides in South Carolina as a result of the acts or directives of the individual;
(6) the individual engaged in sexual intercourse in South Carolina and the child may

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