9.08.110 Paternity; Establishment of

(a) Statute of Limitations. Paternity may be established in an action brought in the Turtle Mountain Tribal Court by the natural mother, putative father, or custodian or guardian until the child reaches the age of 18 years. Any action previously barred by tribal statute of limitations less than 18 years may also be maintained under this section provided the cause of action accrued less than 18 years from the time of filing. A child may bring an action to establish paternity at any time within the child's life for the limited purpose of establishing enrollment with the Tribe. This action may be brought against the putative father or the estate of the putative father if deceased, but any finding of the Court with regard to paternity shall only impact the child's eligibility for enrollment and will not support the reopening of any concluded probate proceedings or any action for back child support. Plaintiff shall establish by clear and convincing evidence that the person is the father.

(b) Jurisdiction. The Turtle Mountain Tribal Court shall have jurisdiction over any paternity action where:

(1) A party to the action has resided on the reservation for 90 days prior to commencement of the action; or

(2) A party to the action is an enrolled member of the Tribe or an enrolled member of any other federally Recognized Indian tribe; or

(3) The conception of the child for whom establishment of paternity is sought occurred within the exterior boundaries of the reservation; or

(4) The child for whom establishment of paternity is sought was born within the exterior boundaries of the reservation, on trust land held by any tribal member wherever located or on tribal land whether currently or subsequently acquired;

(1) Any party, which requests a genetic test, must file the request with a supporting sworn statement either alleging or denying paternity. The Tribal Court may order a genetic test based upon a motion by any party which either alleges paternity and sets forth facts which establish a reasonable possibility of the requisite sexual contact between the parties or denies paternity and sets forth a reasonable possibility of no sexual contact between the parties.

(2) The Tribal child support enforcement agency created herein must pay for all court ordered tests in those cases where the custodial parent is receiving TANF and allow for additional testing only upon request by a party and advance payment for the costs. The Tribe is entitled to recover the costs of these tests from the father if paternity is established. The Tribe is entitled to recover the costs of these tests from the mother if the court determines that the claim of paternity was not based on good faith in cases where paternity was not established. This section does not apply to those cases brought to establish paternity for purposes of enrollment only.

(3) The Tribal Court must admit accredited genetic test results into evidence without foundation and must limit objections to test results to fourteen (14) days before the paternity hearing or 14 days after receipt of the test results.

(4) A rebuttable presumption of paternity is established where the genetic tests indicate a 96% threshold probability of paternity.

(5) Pregnancy and childbirth expenses, as well as genetic testing bills are admissible without foundation testimony and constitute prima facie evidence of costs.

(d) Acknowledgment In General. The relationship of father and child may be established by voluntary acknowledgment of paternity, signed by both parents, given before a witness if both A and B are met:

(1) The acknowledgment is made on a form in substantial conformance with this subsection, which provides:

(A) Instructions for filing the acknowledgment with the North Dakota Department of Health;

(B) Places for entry of the parents' names, addresses, and social security numbers; parent's signatures; and witnesses' signatures; and

(2) The witness, or any agent of a child support agency, verifies that the parents have been provided, before the acknowledgment of paternity is signed:

(A) Written materials about paternity establishment, including the manner in which the relationship of father and child established under this Act, may be vacated on the basis of fraud, duress; or mistake of fact; and

(B) A written and oral description of the rights, responsibilities, and legal consequences of acknowledging paternity, including the legal rights of the child

(3) Acknowledgment becomes a legal finding of paternity in 60 days, thereafter subject to court challenge only on the basis of fraud, duress or mistake of fact.

(4) The father's name can be on the birth certificate only if both parents sign an acknowledgement or pursuant to an order of the Court.

(5) Judicial or administrative proceedings are neither required nor permitted to ratify an uncontested acknowledgment.

(6) The Tribe shall grant full faith and credit to the paternity affidavits and orders of other tribes and States, in compliance with 28 U.S.C. 1738B.

(e) Hospital Based Acknowledgment. During the period immediately preceding or following the birth of a child to an unmarried woman in a birthing hospital, the hospital at a minimum, shall:

(1) Provide to the mother and the alleged father, if he is present in the hospital:

(A) Written materials about paternity establishment;

(B) The forms necessary to voluntarily acknowledge paternity;

(C) A written and oral description of the rights, responsibilities, and legal consequences of acknowledging paternity; and

(D) The opportunity to speak, either by telephone or in person, with staff who are trained to clarify information and answer questions about paternity establishment;

(2) Provide the mother and the alleged father, if he is present, the opportunity to voluntarily acknowledge paternity in the hospital;

(3) Afford due process safeguards by informing, in writing, the mother and alleged father, if he is present, of the manner in which a relationship of father and child established under this Act may be vacated or rescinded; and

(4) Forward completed acknowledgments to the North Dakota Department of Health.

(f) Adjudication Procedure

(1) In any paternity adjudication there is no right to a jury trial.

(2) Pending an adjudication of paternity, temporary support orders must be entered based on clear and convincing evidence, upon a party's motion.

(3) A putative father may initiate a paternity action within 18 years of the birth of a child.

(4) Acknowledgments and adjudication of paternity shall be filed with the Bureau of Indian Affairs, for enrollment purposes and the North Dakota Department of Health.

(5) The Tribal Court shall enter default orders in paternity cases upon a showing of service to the defaulting party and upon any other showing as required by the Turtle Mountain Tribal Code.

(6) In all paternity actions filed in the tribal court, the social security number of the alleged father shall be part of the record and caption of the proceeding.

(7) Each party to a paternity proceeding shall have the right to file the finding of paternity with the state-maintained central registry of support orders and may petition the court to update information about the other party such as Social Security numbers; driver's identification numbers and employer information.

(8) Paternity actions shall be open hearings unless requested closed by any party to the paternity proceeding.

(g) Mistake, Fraud, or Duress.

(h) A determination of paternity that arises under this section may be voided at any time upon a motion or petition stating facts that show fraud, duress or a mistake of fact. The burden of proof shall be upon the movant. Such burden shall be clear and convincing evidence.

(i) If a court in a proceeding under par. (a) determines that the male is not the father of the child, the court shall vacate any order entered under sub. (1) with respect to the male. The court or the child support agency shall notify the state registrar, in the manner provided in this code to remove the male's name as the father of the child from the child's birth certificate. No paternity action may thereafter be brought against the male with respect to the child; now