Hb 568 - Domestic Relations: Determination of Paternity

• Jurisdiction: Georgia,United States
• Publication year: 2015
• Citation: Vol. 32 No. 1

HB 568 - Domestic Relations: Determination of Paternity

[Page 103]

DOMESTIC RELATIONS

Determination of Paternity: Amend Article 3 of Chapter 7 of Title 19 of the Official Code of Georgia Annotated, Relating to Determination of Paternity, so as to Revise Provisions Relative to Paternity Testing in Certain Cases; Provide for Reimbursement of Paternity Testing Costs Incurred by the Department of Human Services; Provide for Related Matters; Repeal Conflicting Laws; and for Other Purposes

Code Sections: O.C.G.A. §§ 19-7-43, -45, -54 (amended)

Bill Number: HB 568

Act Number: 252

Georgia Laws: 2015 Ga. Laws 1433

Summary: The Act requires the Georgia Department of Human Services to order genetic testing in cases where paternity is contested. The Act also provides that no genetic testing should be undertaken if the applicant for services or other alleged parent adopted the child or the child was conceived through artificial insemination. Finally, the Act codifies specific laboratory standards for the genetic tests and requires destruction of the genetic material used in paternity testing.

Effective Date: July 1, 2015

History

Child support enforcement is an important aspect of the State's ability to assist needy families.¹ In fact, "child support payments

[Page 104]

reduce the poverty rate of single mothers by [twenty-five] percent."² Because many welfare recipients are single parents, the non-custodial parent's child support payments often have a cumulative effect on the welfare system.³ "According to the United States Department of Health and Human Services, there were 15,588,775 open child support cases in the United States in 2013 . . . ."⁴ Out-of-wedlock births in the United States have increased from 89,500 a year in 1940 to more than 1.5 million a year by 2005.⁵

In Georgia, the Department of Human Services (DHS), Division of Child Support Services (DCSS) assists families in need of assistance with collecting child support payments.⁶ As of November 2014, the DCSS has 396,640 open cases, representing 533,252 children.⁷ The DCSS distributed $704.5 million to recipients in 2014.⁸ Any family may apply for DCSS services, which include locating non-custodial parents, establishing paternity, establishing and enforcing child support orders, and collecting and distributing support payments.⁹

A critical component to the child support process is establishing paternity because the non-custodial parent is the father in the majority of cases.¹⁰ Paternity establishment means naming a "legal father" for a child.¹¹ Federal law requires state agencies to provide an expedited process to establish paternity. ¹² The process requires

[Page 105]

parties to participate in genetic testing and allows procedures for voluntary acknowledgment of paternity.¹³ In contested cases where the DHS seeks to establish paternity, the Office of State Administrative Hearings (OSAH), superior courts, and state courts have jurisdiction.¹⁴

In 2001, a father claimed that Georgia's paternity statute was unconstitutional because it treated men and women differently in violation of equal protection by allowing a mother, but not a father, to sue to establish paternity.¹⁵ The Supreme Court of Georgia held that the paternity statute was constitutional and did not violate equal protection because fathers and mothers of illegitimate children were not similarly situated.¹⁶ The statute actually remedied a disparity under common law in which a duty to support was placed on the mother but not the father. ¹⁷ The Supreme Court of Georgia recognized a legitimate legislative effort to remedy a common problem: unwed mothers raising illegitimate children without the support of the father.¹⁸

Ultimately, DNA testing has proved the most accurate way to determine paternity, and approximately 20% of the DNA tests conducted by the DCSS exclude the man initially named as the father.¹⁹ This high percentage means that many men, who were not biological fathers, were paying child support and the actual fathers may not even know of their children.²⁰ Though DNA testing is the most accurate way to determine paternity, it has not been mandatory in new child support cases.²¹

[Page 106]

Bill Tracking of HB 568

Consideration and Passage by the House

Representatives Katie Dempsey (R-13th), Tom Weldon (R-3rd), Mary Margaret Oliver (D-82nd), Wendell Willard (R-51st), Alex Atwood (R-179th), and David Wilkerson (D-38th) sponsored House Bill (HB) 568.²² The House read the bill for the first time on March 5, 2015.²³ It read the bill for the second time on March 9, 2015.²⁴ Speaker David Ralston (R-7th) assigned the bill to the House Juvenile Justice Committee, which recommended several cosmetic changes²⁵ and favorably reported the bill by substitute on March 11, 2015.²⁶

The House read the bill for the third time on March 13, 2015,²⁷ and adopted a substantive floor amendment proposed by Representatives Weldon and Andrew Welch (R-110th), to which Representative Dempsey, the bill's author, also agreed. ²⁸ The adopted floor amendment focused on the privacy concern raised by DNA testing.²⁹ The amendment inserted provisions to (1) prevent written results of genetic tests from being attached to any pleading or court order, (2) require destruction of collected genetic material within six months of a final paternity order, (3) require the recipients of genetic material to provide written notice to the tested individuals within thirty days of the destruction of the material, (4) prevent unauthorized sharing of collected genetic material, and (5) create a cause of action for violations of Code section 19-7-45, which would contain these provisions.³⁰ The House passed the Committee substitute as amended by a vote of 169 to 0.³¹

[Page 107]

Consideration and Passage by the Senate

Senator Dean Burke (R-11th) sponsored HB 568 in the Senate.³² The Senate read the bill for the first time on March 18, 2015, and it was assigned to the Senate Judiciary Committee.³³ The Committee favorably reported the bill by substitute on March 26, 2015.³⁴ The Committee substitute weakened the earlier changes Representative Weldon's amendment created by (1) deleting the subsection requiring written notice of the genetic material's destruction, (2) deleting the subsection creating a cause of action, and (3) changing the length of time for required destruction of genetic material from six months to a reasonable amount of time as determined by the DHS. ³⁵ Representatives Weldon, Welch, and Dempsey were all amenable to these changes.³⁶ Senator Charlie Bethel (R-54th), a member of the Senate Judiciary Committee, suggested that the proposed creation of a new cause of action might be redundant.³⁷ Representative Dempsey suggested, after discussions with the DHS, that some situations may warrant keeping the genetic material for longer than the arbitrary deadline of six months.³⁸ Even after these changes, the bill still would prohibit attachment of genetic tests to pleadings or court orders, require destruction of genetic material, and prohibit the unauthorized sharing of that material with other persons or entities.³⁹

The Senate read the bill for the second time on March 26, 2015.⁴⁰ It was tabled on March 31, 2015.⁴¹ The bill was taken from the table and read for the third time in the Senate on April 2, 2015.⁴² On the

[Page 108]

same day, the Senate adopted the Committee substitute and passed HB 568 by a vote of 47 to 0.⁴³

Reconsideration and Passage by the House

On April 2, the House agreed to the Senate Judiciary Committee substitute to HB 568 by a vote of 167 to 1.⁴⁴ The House sent the bill to Governor Nathan Deal (R) on April 8, 2015.⁴⁵ Governor Deal signed HB 568 into law on May 12, 2015.⁴⁶

The Act

Purpose

The Act amends Title 19 of the Official Code of Georgia Annotated with the purpose of revising provisions regarding paternity testing in certain cases, providing for reimbursement of paternity testing costs incurred by the DHS, providing for the privacy of written paternity results and collected genetic material, and providing for procedure in motions to set aside determinations of paternity.⁴⁷

The author of the Act, Representative Katie Dempsey (R-13th), sought to enhance the paternity establishment process by "requiring DNA testing in new child support cases . . . to end wrongful paternity claims prior to legal action."⁴⁸ The Act ensures that an alleged father is not wrongfully required to submit child support payments until paternity is in fact established.⁴⁹ This avoids the potential of jailing or sanctioning individuals who are in child support arrears when they are not the biological "parent of the child in question."⁵⁰

[Page 109]

Section 1 - Relating to Petitions for Paternity Determinations

Section 1 of the Act amends Code section 19-7-43, relating to petitions for determination of paternity, by changing several subsections.⁵¹ First, Section 1 mandates that the DHS order genetic testing when the DHS is involved in the collection of child support for cases in which the paternity of a child is not established, or the individual receiving services alleges the previously established father is not the biological father.⁵² Previously, the DHS was permitted to order genetic testing only in cases where paternity has not been established and was not mandated to order such testing.⁵³ Section 1 adds that genetic testing should not be performed when the child was adopted or conceived by artificial insemination.⁵⁴ This Section further clarifies and reorganizes the language in subsections (e) and (f) of Code section 19-7-43.⁵⁵

Section 1 also amends subsection (f) regarding who pays for paternity testing.⁵⁶ If one or both of the parties receive...