Montana Code 40-5-233. Establishment of paternity — administrative hearing — subpoena — compulsory paternity genetic testing
40-5-233. Establishment of paternity — administrative hearing — subpoena — compulsory paternity genetic testing. (1) (a) Paternity genetic testing may be requested by the alleged father, the mother, or the child through the child’s custodian and may be made in conjunction with or in addition to a notice the department issues under 40-5-232. The request must be in writing and must be supported by a sworn statement of the requester that includes:
Terms Used In Montana Code 40-5-233
- Affidavit: A written statement of facts confirmed by the oath of the party making it, before a notary or officer having authority to administer oaths.
- Affidavit: means a sworn written declaration made before an officer authorized to administer oaths or an unsworn written declaration made under penalty of perjury as provided in 1-6-105. See Montana Code 1-1-203
- Allegation: something that someone says happened.
- 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
- 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.
- Need: means the necessary costs of food, clothing, shelter, and medical care for the support of a child or children. 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
- Person: includes a corporation or other entity as well as a natural person. See Montana Code 1-1-201
- Subpoena: A command to a witness to appear and give testimony.
- Testimony: Evidence presented orally by witnesses during trials or before grand juries.
- Writing: includes printing. See Montana Code 1-1-203
(i)an allegation of paternity and sufficient facts to establish a reasonable probability that the alleged father engaged in an act with the child’s mother during the probable time of the child’s conception that could have resulted in the child’s conception; or
(ii)a denial of paternity and sufficient facts to establish a reasonable probability of the nonexistence of contact between the alleged father and the child’s mother that could have resulted in the child’s conception.
(b)If the department determines after a review of a sworn statement that there are sufficient facts to establish a reasonable probability of paternity or nonpaternity as claimed by the requesting party, the department shall issue a subpoena ordering the alleged father, the mother, or the child through the child’s custodian to submit to paternity genetic testing.
(c)A pending request for paternity genetic testing under this section does not prevent the department from issuing a notice of parental responsibility under 40-5-232.
(d)Denial of a request for paternity genetic testing under this subsection (1) is not a finding of nonpaternity and does not prevent the issuance of a notice under 40-5-232. A denial does not affect the completion of any pending action initiated under 40-5-232.
(2)(a) The department may order an alleged father to appear for an administrative hearing when:
(i)the department determines that the sworn statement provided in subsection (1) does not contain sufficient facts to issue a genetic test subpoena and that additional examination of witnesses or evidence is necessary; or
(ii)the department receives a timely filed written denial of paternity in response to a notice under 40-5-232.
(b)The hearing must initially be conducted by teleconferencing methods and is subject to the provisions of the Montana Administrative Procedure Act. At the request of a party, the hearings officer shall, at the close of a teleconference hearing, grant a de novo in-person hearing.
(c)The department may issue a subpoena ordering the alleged father to submit to paternity genetic testing if the testimony and other supplementary evidence demonstrate a reasonable probability:
(i)that the alleged father engaged in an act with the child’s mother during the probable time of the child’s conception that could have resulted in the child’s conception; or
(ii)when the alleged father’s paternity is presumed under 40-6-105, of the nonexistence of contact between the alleged father and the child’s mother that could have resulted in the child’s conception.
(d)For the purposes of this subsection (2), a reasonable probability of an act during the possible time of conception may be established by affidavit of the child’s mother without need for the mother to appear at the hearing.
(3)Previous paternity actions under this part that did not result in a subpoena for paternity genetic testing do not prevent the department from recommencing a paternity action if the department believes it can establish any of the factors listed in subsection (2)(c) or (2)(d).
(4)When there is reasonable cause to suggest that a genetic test sample of a person submitting to a genetic test was not the sample of the alleged father, mother, or child, an additional hearing may be held. The scope of the hearing is limited to questions involving the genetic testing or the chain of custody at the genetic testing site. The hearings officer may order retesting of any party.
(5)If the department does not receive a timely filed written denial of paternity or if an alleged father fails to appear at a scheduled hearing or for a scheduled paternity genetic test, the department may enter an order declaring the alleged father the legal father of the child. The order will take effect within 10 days after entry of the default unless the alleged father before the 10th day presents good cause for failure to make a timely denial or for failure to appear at the hearing or to undergo paternity genetic testing. The department may not enter an order under this section if there is more than one alleged father unless the default applies to only one of them and all others have been excluded by the results of paternity genetic testing. An order issued under the provisions of this section may be set aside as provided in 40-5-235(3).
(6)If the rights of others and the interests of justice so require, the department may apply to any district court under the provisions of 2-4-104 for an order compelling an alleged father to submit to paternity genetic testing. The court shall hear the matter as expeditiously as possible. If the court finds reasonable cause to believe that the alleged father is the natural or presumed father of the child, the court shall enter an order compelling the alleged father to submit to a paternity genetic test. Reasonable cause may be established by affidavit of the child’s mother.