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Disestablishment of Paternity & Support

Disestablishment of Paternity & Support. For Child Support Attorneys. Motions Filed – GS 49-14(h). Motion Filed Properly served? Notice of Hearing - 5 days notice? No? Move to dismiss. Motions Filed – GS 49-14(h) / 110-132. Motion Filed Filed in underlying paternity case?

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Disestablishment of Paternity & Support

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  1. Disestablishmentof Paternity & Support For Child Support Attorneys

  2. Motions Filed – GS 49-14(h) Motion Filed • Properly served? • Notice of Hearing - 5 days notice? No? Move to dismiss

  3. Motions Filed – GS 49-14(h) / 110-132 Motion Filed • Filed in underlying paternity case? No? Move to dismiss

  4. Motions Filed – GS 49-14(h) / 110-132 Whose Order • North Carolina order? • Jurisdiction? No? Move to dismiss

  5. Motions Filed – GS 49-14(h) / 110-132 Pleadings • Fraud • Duress • Mutual Mistake • Excusable Neglect No? Move to dismiss

  6. Motions Filed – GS 49-14(h) / 110-132 Who Is Movant • A party to existing action? • Does he have standing? No? Move to dismiss

  7. Motions Filed – GS 49-14(h) / 110-132 Motion Is Sufficient • Prepare for hearing

  8. Motions Filed – GS 49-14(h) / 110-132 • Review complete file • Confer with Child Support case manager • Meet with custodian • Is motion to dismiss appropriate?

  9. Motions Filed – GS 49-14(h) / 110-132 Consider Motion To Dismiss • If not alleged with particularity • If previous paternity testing • If movant knew he was not father

  10. Motions Filed – GS 49-14(h) / 110-132 Prior Paternity Test • Court ordered? • Chain of Custody verified? No? Move to strike

  11. Motions Filed – GS 49-14(h) / 110-132 Burden of Proof • Belongs to Movant • Need Findings of Fact, Conclusions of Law • Appeal - request stay • Court incorrect – petition for writ

  12. Motions Filed – GS 49-14(h) / 110-132 Paternity Test Results • 97 % & higher – rebuttable presumption of paternity • 85 % – 97% - same weight as other evidence • Less than 85% - rebuttable presumption of non-paternity

  13. Motions Filed – GS 49-14(h) / 110-132 Court Determination • Paternity test - not father • Prior order - fraud, duress, mutual mistake or excusable neglect • Court’s discretion to set aside paternity

  14. Motion Filed – GS 50-13.13 New Civil Action • Proper Summons & Complaint? • Service of Process? • Timely Service? • Endorsement? No? Move to Dismiss

  15. Motions Filed –GS 50-13.13 Plaintiff - Father Required to Support • Chapter 49 (Legitimation) • Chapter 50 (Custody, support) • Chapter 52C (Interstate) • Chapter 110 (Title IV-D) • Chapter 52-10.1 (Separation agreement) No? Move to Dismiss

  16. Motions Filed –GS 50-13.13 Whose Order • North Carolina order? • Jurisdiction? No? Move to dismiss

  17. Motions Filed –GS 50-13.13 When Did He Know • Knew or should have known • Longer than 1 year? Move to dismiss

  18. Motions Filed –GS 50-13.13 Complaint Verified • No? Move to dismiss

  19. Motions Filed –GS 50-13.13 How Does He Know • Are allegations clearly stated? No? Move to dismiss

  20. Motions Filed –GS 50-13.13 Allegations • Did not acknowledge paternity? • Acknowledged not knowing his is not father No? Move to dismiss

  21. Motions Filed –GS 50-13.13 Adoption / Legitimation • Has he adopted child? • Has he legitimated child? Yes? Move to dismiss

  22. Motions Filed –GS 50-13.13 Legitimation • By marriage? • When mother married to another man? • By artificial insemination Yes? Move to dismiss

  23. Motions Filed –GS 50-13.13 Plaintiff in Military • Default judgment? • Date of separation?

  24. Motions Filed –GS 50-13.13 Guardian Ad Litem • On behalf of child • At discretion of Court

  25. Motions Filed –GS 50-13.13 Paternity Testing • Court order • GS 8-50.1 governs admissibility, weight • Failure to comply – contempt, sanction

  26. Motions Filed –GS 50-13.13 Suspension of Support Obligation • Suspended in IV-D case • Not suspended if support paid to mother

  27. Motions Filed –GS 50-13.13 Support Obligation Termination • If paternity test indicates non-paternity • If plaintiff did not acknowledge paternity

  28. Motions Filed –GS 50-13.13 Support Obligation Termination • If plaintiff acknowledged paternity not knowing he was not father

  29. Motions Filed –GS 50-13.13 Plaintiff Does Not Meet Requirements • Court must: • Deny motion • Bad faith – award fees to prevailing party • Support order remains in effect

  30. Motions Filed –GS 50-13.13 Plaintiff Meets Requirements • Court must order: • Ongoing support terminated • Arrearage remains due and owing • Clerk of court to notify State Registrar

  31. Motions Filed –GS 50-13.13 Plaintiff Meets Requirements • Court may: • Tax paternity test costs to mother

  32. ? ?

  33. Lisa K. Bradley Assistant Attorney General NC Department of Justice LBradley@ncdoj.gov 919.716.6850

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