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Disestablishment of Paternity & Support For Child Support Attorneys.

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Presentation on theme: "Disestablishment of Paternity & Support For Child Support Attorneys."— Presentation transcript:

1 Disestablishment of 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) / Motion Filed  Filed in underlying paternity case? No? Move to dismiss

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

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

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

7 Motions Filed – GS 49-14(h) / Motion Is Sufficient  Prepare for hearing

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

9 Motions Filed – GS 49-14(h) / 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) / Prior Paternity Test  Court ordered?  Chain of Custody verified? No? Move to strike

11 Motions Filed – GS 49-14(h) / 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) / 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) / 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 New Civil Action  Proper Summons & Complaint?  Service of Process?  Timely Service?  Endorsement? No? Move to Dismiss

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

16 Motions Filed – GS Whose Order  North Carolina order?  Jurisdiction? No? Move to dismiss

17 Motions Filed – GS When Did He Know  Knew or should have known  Longer than 1 year? Move to dismiss

18 Motions Filed – GS Complaint Verified  No? Move to dismiss

19 Motions Filed – GS How Does He Know  Are allegations clearly stated? No? Move to dismiss

20 Motions Filed – GS Allegations  Did not acknowledge paternity?  Acknowledged not knowing his is not father No? Move to dismiss

21 Motions Filed – GS Adoption / Legitimation  Has he adopted child?  Has he legitimated child? Yes? Move to dismiss

22 Motions Filed – GS Legitimation  By marriage?  When mother married to another man?  By artificial insemination Yes? Move to dismiss

23 Motions Filed – GS Plaintiff in Military  Default judgment?  Date of separation?

24 Motions Filed – GS Guardian Ad Litem  On behalf of child  At discretion of Court

25 Motions Filed – GS Paternity Testing  Court order  GS governs admissibility, weight  Failure to comply – contempt, sanction

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

27 Motions Filed – GS Support Obligation Termination  If paternity test indicates non-paternity  If plaintiff did not acknowledge paternity

28 Motions Filed – GS Support Obligation Termination  If plaintiff acknowledged paternity not knowing he was not father

29 Motions Filed – GS 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 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 Plaintiff Meets Requirements Court may:  Tax paternity test costs to mother

32 ?

33 Lisa K. Bradley Assistant Attorney General NC Department of Justice


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