11.03.040 Paternity

(a) Children Born During a Marriage

(1) A child born during a marriage is presumed to be the child of the husband.

(2) A putative father who is not the mother's husband may challenge the presumption of the husband's paternity and file a paternity petition on the basis of the child's best interest or on the basis of the husband's lack of access.

(3) The SRMT-CSEU may challenge the presumption of paternity due to the husband's lack of access and may file a paternity petition.

(b) Children Born Outside of a Marriage

(1) The paternity of a child born outside of a marriage may be established through: (1) genetic testing, (2) as agreed between the parties, (3) as ordered by SRMT Tribal Court; (4) through an acknowledgment of paternity or (5) a birth certificate if the jurisdiction in which the child is born establishes paternity through a birth certificate.

(2) A parent can revoke an acknowledgment of paternity within sixty (60) days of signing. A parent can petition the SRMT Court to revoke an acknowledgment of paternity if more than sixty (60) days has passed since signing it, but only on the grounds of fraud, duress or material mistake of fact.

(1) Any interested party, including the biological mother, the putative father, the child's legal guardian, the child, or the SRMT-CSEU on behalf of the Tribe by assignment of interest from the custodial parent, may petition the court for the determination of the paternity of a child. No child support can be ordered unless paternity has been established.

(2) Establishment of paternity under this chapter has no effect on Tribal enrollment, membership or eligibility for membership. Membership determinations are separate and distinct from the establishment of paternity. Any person wishing to file a membership application may do so with the Tribal Clerk of the SRMT.

(d) Establishment of Paternity

(1) A petition for the establishment of paternity shall contain the following information:

(A) The name, date of birth and tribal affiliation (if known) of the child or children and the date ranges of conception;

(B) The names, dates of birth, tribal affiliation (if known) and addresses of the biological mother and the putative father(s) in the action;

(C) If there is a protective order in place, the address of the affected party and of any children shall be redacted from all court documents;

(D) If there is reason to believe that emotional or physical harm may be inflicted should the whereabouts of a party or a child be disclosed, the petitioner shall state the reason and request the Court to issue an Order redacting the personal information from all court documents that respondent can access;

(E) A statement regarding the father's access to the mother prior to the child's conception or birth;

(F) A statement indicating if there has ever been any other proceeding including any state court or other tribal court, involving the child or children in the action for paternity, custody, placement or child support; and

(G) A statement indicating whether the custodial party will be seeking a child support order if paternity is established; and

(H) A copy of any order entered by a state court or other tribal court.

(2) A paternity petition shall contain the following notices:

(A) that if the parties agree, they have the right to voluntarily acknowledge paternity by executing an Acknowledgment of Paternity at Mediation or at the initial court appearance;

(B) that either party can request genetic testing if paternity is contested by either party. The party requesting genetic testing, however, shall bear the burden of paying for it unless he/she can demonstrate why he/she should not pay for it;

(D) that if paternity is established and child support is requested, that support shall commence from the date that paternity is established.

(3) An Answer which denies paternity may rely on the following

(A) The putative father was sterile or impotent at the time of conception; and/or

(B) The putative father and the biological mother did not have sexual intercourse at the time of conception; or

(D) The putative father is not the biological father of the child.

(e) Initial Appearance for Paternity

(1) If the putative father and the biological mother are willing to voluntarily acknowledge paternity without the use of genetic tests, the Tribal Court shall issue a final order establishing the putative father as the legal father of the minor child.

(2) If paternity is contested, the SRMT Tribal Court shall order that genetic testing be performed within ten (10) days of the hearing. The Order shall contain the date, time and location of the genetic testing and shall comply with the requirements of this chapter.

(3) Upon proper notice in the Summons, if one or both parties fail to appear at the initial court appearance, a Default Order of paternity shall be entered unless the party who failed to appear requested that the appearance date be changed or notified the Court that he/she was unable to attend the hearing for good cause. A party may only request one change to the court date or be excused once for good cause. Thereafter, failure to appear at a rescheduled court date shall result in an automatic default judgment.

(f) Circumstances Where Paternity May Not Be Established

(1) If the child subject to the action was conceived as a result of forcible rape or incest, and the victim or guardian has requested that paternity establishment not proceed, SRMT- CSEU will not file an action in Tribal Court for paternity establishment. If this information is received following the filing of the Summons and Petition, the Tribal Court shall dismiss the action. If SRMT-CSEU filed the action, it shall request the dismissal from the Tribal Court.

(2) In any case in which a legal proceeding for adoption is pending, if, in the opinion of the SRMT-CSEU, it would not be in the best interests of the child to establish paternity, an action for paternity establishment will not be filed. If this information is received following the filing of the Summons and Petition, the Tribal Court may dismiss the action. If SRMT- CSEU filed the action, it may request the dismissal of the action by filing a motion for an Order to Dismiss.

(g) Genetic Testing

(1) In ordering genetic testing, the SRMT-CSEU or the SRMT Tribal Court shall ensure that:

(A) Genetic test samples are collected by certified buccal swab collectors at the SRMT-CSEU;

(B) Genetic testing samples are provided to an accredited genetic testing laboratory with a notice to where to send the results;

(C) Results should be sent to the SRMT-CSEU if the parties attended Mediation and wish to resolve the matter without further litigation. If the matter is pending in Tribal Court the results shall be sent to it;

(D) Once Tribal Court has received genetic testing samples it shall notify the parties and notify the parties of the next court date. Once SRMT-CSEU has received the results, it shall notify the parties and notify them of a new Mediation date;

(E) If genetic tests show that the putative father is the biological father by a percentage of 99.0% or higher, paternity is presumed and the putative father shall be adjudicated the legal father;

(F) Whenever the results of the genetic tests exclude the putative father as the biological father of the child, this evidence shall be conclusive evidence of non-paternity and the Tribal Court shall dismiss the action unless it finds good cause in the child's best interest to allow the matter to go forward;

(G) If the paternity action was brought by the child's biological mother but she refuses to submit herself or the child to the genetic tests, the action shall be dismissed; and

(H) Establishment of paternity under this section has no effect on Tribal enrollment or membership.

(h) Final Paternity Hearing

(1) If paternity was not established by voluntary acknowledgment at the initial court appearance, and a genetic test was ordered, a final paternity hearing shall be held where the results of the genetic testing shall be presented unless the parties agree to the establishment of paternity. The hearing shall be held no later than ten (10) days after the receipt of the genetic testing results.

(2) Upon the Tribal Court's receipt of the genetic test results, it shall advise the parties of its receipt of the results. The SRMT Court Clerk shall then schedule the matter for a hearing.

(3) If the genetic tests results indicate a probability of 99.0% or higher, the SRMT-CSEU shall file a Proposed Order, that:

(A) Finds the putative father is the biological father based on genetic testing

(B) Sets conditions for the repayment of any fees or costs associated with the paternity action including, but not limited to, genetic testing, service of process and modification of the official birth record.

(4) If genetic tests establish that there is a probability of 98.9% or lower and there has been no showing by the preponderance of the evidence that the putative father named in the Petition is not the biological father, the SRMT-CSEU shall file a Proposed Order that the case be dismissed unless the Court determines there is good cause in the child's best interest to move forward with the hearing.