40-5-236. Referral of paternity issue to district court — record — parties — exclusion of other matters — fees. (1) If the scientific evidence resulting from a paternity genetic test does not exclude the alleged father and the alleged father continues to deny paternity, the alleged father shall file a written objection with the department within 20 days after service of the paternity genetic test results specifically requesting referral of the paternity issue to the district court. Upon receipt of the written objection, the department shall refer the matter to the district court for a determination based on the contents of the administrative hearing record and any further evidence that may be produced at trial. Except as otherwise provided in 40-5-231 through 40-5-237, proceedings in the district court must be conducted pursuant to Title 40, chapter 6, part 1.

Terms Used In Montana Code 40-5-236

  • Alleged father: means a person who is alleged to have engaged in sexual intercourse with a child's mother during a possible time of conception of the child or a person who is presumed to be a child's father under the provisions of 40-6-105. See Montana Code 40-5-201
  • Child: means :

    (i)a person under 18 years of age who is not otherwise emancipated, self-supporting, married, or a member of the armed forces of the United States;

    (ii)a person under 19 years of age and still in high school;

    (iii)a person who is mentally or physically incapacitated if the incapacity began prior to the person's 18th birthday; or

    (iv)in a IV-D case, a person for whom:

    (A)support rights are assigned under 53-2-613;

    (B)a public assistance payment has been made;

    (C)the department is providing support enforcement services under 40-5-203; or

    (D)the department has received a referral for IV-D services from an agency of another state or an Indian tribe under the provisions of the Uniform Interstate Family Support Act, the Revised Uniform Reciprocal Enforcement of Support Act, the Uniform Reciprocal Enforcement of Support Act, or Title IV-D of the Social Security Act. See Montana Code 40-5-201

  • Complaint: A written statement by the plaintiff stating the wrongs allegedly committed by the defendant.
  • Department: means the department of public health and human services. See Montana Code 40-5-201
  • Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
  • Guardian: A person legally empowered and charged with the duty of taking care of and managing the property of another person who because of age, intellect, or health, is incapable of managing his (her) own affairs.
  • Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
  • Parent: means the natural or adoptive parent of a child. See Montana Code 40-5-201
  • Paternity genetic test: means a test that demonstrates through examination of genetic markers either that an alleged father is not the natural father of a child or that there is a probability that an alleged father is the natural father of a child. See Montana Code 40-5-201
  • Summons: Another word for subpoena used by the criminal justice system.
  • Transcript: A written, word-for-word record of what was said, either in a proceeding such as a trial or during some other conversation, as in a transcript of a hearing or oral deposition.
  • Trial: A hearing that takes place when the defendant pleads "not guilty" and witnesses are required to come to court to give evidence.

(2)The administrative record must include:

(a)a copy of the notice of parental responsibility and the return of service of the notice;

(b)the alleged father’s written denial of paternity, if any;

(c)the transcript of the administrative hearing;

(d)the paternity genetic test results and any report of an expert based on the results; and

(e)any other relevant information.

(3)Upon filing of the record with the district court, the court acquires jurisdiction over the parties as if they had been served with a summons and complaint. The department shall serve written notice upon the alleged father, as provided in 40-5-231(2), that the issue of paternity has been referred to the district court for determination.

(4)In a proceeding in the district court, the department shall appear on the issue of paternity only. The court may not appoint a guardian ad litem for the child unless the court in its discretion determines that an appointment is necessary and in the best interest of the child. Neither the mother nor the child is a necessary party, but either may testify as a witness.

(5)No other matter may be joined with an action to determine the existence or nonexistence of the parent and child relationship under this section. The parties shall institute an independent action to address other issues, including visitation and custody.

(6)Except as provided in 25-10-711, the department is not liable for attorney fees, including fees for attorneys assigned under 40-6-119, or fees of a guardian ad litem appointed under 40-6-110.

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