CHAPTER 190

FORMERLY

HOUSE BILL NO. 276

AS AMENDED BY HOUSE AMENDMENT NOS. 1 AND 2

AN ACT TO AMEND TITLE 13 OF THE DELAWARE CODE RELATING TO DOMESTIC RELATIONS, AND PROVIDING FOR A UNIFORM PARENTAGE ACT.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend Title 13 of the Delaware Code by adding thereto a new Chapter, designated as Chapter 8, which new Chapter shall read as follows:

"CHAPTER 8. UNIFORM PARENTAGE ACT

§801. Parent-and-Child Relationship Defined

As used in this Chapter, 'parent-and-child relationship' shall mean the legal relationship existing between a child and his natural or adoptive parents incident to which the law confers or imposes rights, privileges, duties and obligations. It includes the mother-and-child relationship and the father-and-child relationship.

§802. Relationship not Dependent upon Marriage

The parent-and-child relationship extends equally to every child and to every parent, regardless of the marital status of the parents.

§803. How Parent-and-Child Relationship is Established The parent-and-child relationship between a child and:

(a) the natural mother may be established by proof of her having given birth to the child, or in accordance with the provisions of this Title;

(b) the natural father may be established in accordance with the provisions of this Chapter;

(c) an adoptive parent may be established by proof of adoption in accordance with the provisions of this Title.

§804. Presumption of Paternity

(a) A man Is presumed to be the father of the child if:

(1) he and the child's mother are or have been married to each other and the child Is born during the marriage; or born within three hundred days after the marriage is terminated by death, annulment, declaration of Invalidity, divorce, or after a decree of separation is entered by a court;

(2) before the child's birth, he and child's mother have attempted to marry each other by a marriage solemnized in apparent compliance with the law, although the attempted marriage is or could be declared invalid, and:

a. If the attempted marriage could be declared invalid only by a court, the child is born during the attempted marriage, or within three hundred days after its termination by death, annulment, declaration of Invalidity, or divorce; or

b. If the attempted marriage is Invalid without a court order, the child is born within three hundred days after the termination of cohabitation.

(3) after the child's birth, he and the child's mother have married or attempted to marry each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared Invalid, and

a. he has acknowledged his paternity of the child in writing under oath filed with the Clerk of the Family Court in any county;

b. with his consent, he is named as the child's father on the child's birth certificate; or

c. he is obligated to support the child under a written agreement or by court order.

(4) while the child Is under the age of majority, he receives the child into his home and openly holds out the child as his natural child for a reasonable period of time; or

(5) he acknowledges his paternity of the child in a writing filed under oath with the Clerk of the Family Court of any county; provided, however, If another man is presumed under this section to be the child's father, such an acknowledgement shall be effective only with the written consent of the presumed father or after the presumption has been rebutted.

b. A presumption under this section may be rebutted in an appropriate action only by clear and convincing evidence. If two or more presumptions arise which conflict with each other, the presumption which on the facts is founded on weightier considerations of policy and logic controls. This presumption is rebutted by a court decree establishing paternity of the child by another man.

§805. Determination of Father-and-Child Relationship

(a) Any interested party, including the child or his guardian; the mother or her representative, if deceased; an appropriate public agency; or a man alleged or alleging himself to be the father, or his guardian if a minor or his representative, if deceased, may bring an action at any time for the purpose of determining the existence or non-existence of the father-and-child relationship with respect to any child.

(b) Proceedings may be instituted in accordance with rules adopted by the Court or upon a petition in which the petitioner alleges that respondent owes a duty of support and has refused or failed to provide such support, and thereafter the respondent asserts non-paternity as a defense.

(c) An agreement, other than an agreement approved by the Court in accordance with §809 between an alleged or presumed father and mother or child, does not bar an action under this section, regardless of its terms.

(d) In an action brought under this section before the birth of a child, all proceedings shall be stayed until after the child's birth, except service of process, the taking of depositions to perpetuate testimony, and support proceedings pursuant to Chapter 5, Title 13 of the Delaware Code.

§806. Statute of Limitations

An action under this Chapter is not barred until the child reaches the age of majority, except as provided in 13 Del. C. §§501(d) and 503. This section shall not extend the time within which a right of inheritance or a right to a succession may be asserted beyond the time provided by law relating to distribution and closing of decedents' estates, nor to the determination of heirship, or otherwise.

§807. Jurisdiction; Venue

(a) The Family Court has jurisdiction over any action brought under this Chapter.

(b) A person who has sexual intercourse in this State thereby submits to the jurisdiction of the courts of this State as to any action brought under this Chapter with respect to a child who may have been conceived by that act of intercourse. In addition to any other method provided by rule or statute, Including service of process on persons without the State, personal jurisdiction may be acquired by personal service of summons outside this State or by registered or certified mall with proof of actual receipt; or otherwise by service of process In accordance with any method now or hereinafter provided by law or Family Court rule.

§808. Parties

The child may be made a party to an action under this Chapter. The Court, upon proper application or on its own motion, may appoint a guardian ad litem for the best interest of the child. The mother, each man presumed to be the father, under §804, and each man alleged by any party to be the father, shall be made parties or, If not subject to the jurisdiction of the Court, shall be given notice of the action in a manner prescribed by the Court and an opportunity to be heard. The Court may align the parties.

§809. Pretrial Proceedings

(a) As soon as practicable after an action to delcare the existence or non-existence of the father-and-child relationship is at issue, a pretrial proceeding pursuant to the Rules of the Family Court shall be held before the Court.

(b) The Court inay require the parties to submit to blood, tissue, or other tests. After receipt of said tests, the judge or master conducting the hearing may accept a recommendation of settlement.

(c) A written settlement agreement between or among the mother, the putative father, and guardian ad litem for the child If one is appointed, and approved by the Court shall be final, binding, and conclusive on all parties including the child, and shall operate as a final adjudication on the merits as to the issue of paternity in any subsequent action for determination of paternity, child support, custody, visitation or any other civil or criminal action in which the paternity of the child by the putative father is an clement of the claim for relief.

§810. Civil Notion; Procedure

(a) An action under this Chapter is a civil action governed by the Rules of the Family Court. The mother of the child and the alleged father are competent to testify, and may be compelled to testify.

(b) Evidence relating to sexual access to the mother by any man other than the alleged father at any time not at or about the probable time of conception of the child, is inadmissable in evidence.

(c) The refusal of any witness, including a party, to testify under oath and produce evidence concerning all relevant facts is a civil contempt of the Court.

(d) Testimony of a physician concerning the medical circumstances of the pregnancy, and the condition or characteristics of the child upon birth, is not privileged.

(e) The Court may, and upon timely request of a party or on its own motion, shall require the child, the ,nether, and the alleged father to submit to blood, tissue, or other tests. The tests shall be performed be experts qualified as examiners of blood types including genetic markers, appointed by the Court.

The Court, upon reasonable request by a party or on its own motion, may order that independent tests be performed by other qualified experts. In all eases, the Court shall determine the number and qualifications of the experts.

(f) Evidence relating to paternity may include:

(1) evidence of sexual intercourse between the mother and alleged father or any other man at or about any possible time of conception;

(2) an expert's opinion concerning the statistical probability of the alleged father's paternity.

(3) medical, scientific, genetic, or anthropological evidence relating to the alleged father's paternity of the child based on tests performed by experts. If a man has been identified as a possible father of the child, the Court may, and upon timely request of a party or on its own motion, shall require the child, the mother, and the alleged father to submit to appropriate tests;

(1) respondent's refusal to submit to blood tests; CM the chain of custody of the blood samples when established by verified documentation;

(6) the results of such tests along with the probability of paternity, verified by a written report, unless there Is a timely request for personal testimony by the expert, in which ease the interrogatory or deposition process referred to hereafter may be used if the expert witness is beyond the reach of the Court's process; and

(7) all other evidence relevant to the issue of the paternity of the child.

(g) The Court may enforce its order for tests by appropriate order or by resolving the ease against the party refusing to submit to tests.

(h) Whenever the results of the blood tests exclude the alleged father as the father of the child, this evidence shall be conclusive evidence of non-paternity and the Court shall dismiss the action as to that alleged father.

(i) A default judgment establishing the child's paternity may be entered against a respondent who fails to appear after adequate service.

§811. Admissibility of Court-Appointed Medical Testing Results

(a) Notwithstanding the Delaware Uniform Rules of Evidence, the results of any medical testing ordered under this Chapter or any medical testing voluntarily submitted to by the parties, shall 'm admissible in Court us substantive evidence of the paternity or non-paternity of the alleged father. Such admission may he accomplished by filing in Family Court the test results of the Expert authorized by the Court (hereafter "expert" for purposes of this section), provided that:

(1) Both parties, through their attorneys if represented, have had sufficient opportunity to submit written interrogatories to the expert concerning any relevant issues. Such issues may include, but are not limited to expert's training and qualifications, laboratory procedures utilized, reliability of testing, identity of persons tested, and the identity of other persons involved in the testing procedure or having access to the testing or the results. The purposes of the written Interrogatories Is to provide both parties with a full opportunity to examine the expert, regardless of any subsequent appearance or non-appearance by the expert as a witness in a related Court proceeding. The Court may set time and length limitations on the submission of any written interrogatories to the expert.

(2) Any test results and answers to written interrogatories shall be sworn to or affirmed by the expert to be true and complete to the best of his or her knowledge under the penalties of perjury, and further notarized by a person duly qualified by law.

(3) A copy of all the test results and answers to written interrogatories shall be available to all parties or their attorneys.

(b) Nothing in this section is to prevent or discourage the parties from voluntarily stipulating to the admissibility of the test results in a Court hearing, or to stipulating to the validity of the test results.

(c) This section is to be construed liberally to effectuate the purposes of this Chapter.

§812. Judgment and Order

(a) A Judgment and order of the Court determining the existence or non-existence of the parent-and-child relationship is determinative for all purposes.

(b) When the Judgment and order of the Court is a variance with the child's birth registration, the Court shall order that a new birth certificate be issued under §817.

(c) The Judgment and order may contain any other provision directed against the appropriate party to the proceeding pursuant to Chapter 5 and 7 of this Title, including the duty of support, the custody and guardianship of the child, visitation privileges with the child, the furnishing of bond or other security for the payment of the Judgment, or any other matter in the best interests of the child including the expenses of the mother's pregnancy and confinement.

§813. Costs

The Court may order reasonable fees of counsel, experts, and the child's guardian ad litem, and other costs of the action and pretrial proceedings, including blood, tissue, or other tests, to be paid by the parties in such allocated proportions and at such times as determined by the Court. The Court may order the fees and courts of any indigent party to be paid by an appropriate public authority, but may seek reimbursement from such party at any time.

§814. Right to Counsel

At the pretrial hearing and in further proceedings, any party may be represented by counsel. The Court may appoint counsel for a party who is indigent.

If a party is financially unable to pay the costs of a transcript for purposes of appeal, the Court shall furnish one upon request but may seek reimbursement in the event paternity is established.

§815. Hearings and Records

Notwithstanding any other law concerning public hearings and records, any hearing or trial under this Chapter shall be held in closed Court without admittance of any person other than those necessary to the action or proceeding.

All papers and records, other than the final Judgment, pertaining to the action or proceeding, whether part of the permanent record of the Court or of a file in the appropriate public agency or elsewhere, are subject to inspection by persons other than the parties only upon consent of the Court, for good cause shown.

§816. Promise to Render Support

An agreement in writing under oath to furnish support for a child, growing out of his supposed or alleged parent-and-child relationship, does not require contractual consideration and is enforceable according to its terms. In the best interests of the child or the parents, the Court may order the agreement be kept in confidence and designate a person or agency to receive and disburse on behalf of the child all amounts paid in performance of that promise.

§817. Birth Records

Upon order of a Court of this State or upon request of a Court of another State, the State registrar of births shall prepare an amended birth registration or new certificate of birth as the case may be, consistent with the findings of the Court. The fact that the father-and-child relationship was declared after the child's birth shall not be ascertainable from the amended birth registration or new certificate, but the actual place and date of birth shall be shown. The evidence upon which the amended birth registration or new certificate was made and the original birth certificate shall be kept in a sealed and confidential file and be subject to inspection only upon consent or the Court.

§818. Appeal

A party to an action under this Chapter may at any time within 30 days after the data of judgment and order of the Court take an appeal therefrom to the Supreme Court."

Section 2. This Act shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this Act among the states enacting it.

Section 3. If any provision of this Act or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the Act which can be given effect without the invalid provision or application, and to that end the provisions of this Act are declared to be severable.

Section 4. All provisions in the Delaware Code that are inconsistent with the provisions of this let are hereby repealed.

Approved July 19, 1983.