Transcript Motions Filed – GS 49-14(h) - North Carolina Child Support Council

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?
No? Move to dismiss
Motions Filed – GS 49-14(h) / 110-132
Whose Order
 North
Carolina order?
 Jurisdiction?
No? Move to dismiss
Motions Filed –
GS 49-14(h) / 110-132
Pleadings
Fraud
 Duress
 Mutual Mistake
 Excusable Neglect

No? Move to dismiss
Motions Filed –
GS 49-14(h) / 110-132
Who Is Movant

A party to existing action?

Does he have standing?
No? Move to dismiss
Motions Filed –
GS 49-14(h) / 110-132
Motion Is Sufficient

Prepare for hearing
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?
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
Motions Filed –
GS 49-14(h) / 110-132
Prior Paternity Test

Court ordered?

Chain of Custody verified?
No? Move to strike
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
Motions Filed –
GS 49-14(h) / 110-132
Paternity Test Results

97 % & higher – rebuttable presumption of
paternity

85 % – 97%

Less than 85% - rebuttable presumption of
non-paternity
- same weight as other evidence
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
Motion Filed – GS 50-13.13
New Civil Action
Proper Summons & Complaint?
 Service of Process?
 Timely Service?
 Endorsement?

No? Move to Dismiss
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
Motions Filed – GS 50-13.13
Whose Order

North Carolina order?

Jurisdiction?
No? Move to dismiss
Motions Filed – GS 50-13.13
When Did He Know

Knew or should have known

Longer than 1 year?
Move to dismiss
Motions Filed – GS 50-13.13
Complaint Verified

No?
Move to dismiss
Motions Filed – GS 50-13.13
How Does He Know

Are allegations clearly stated?
No? Move to dismiss
Motions Filed – GS 50-13.13
Allegations

Did not acknowledge paternity?

Acknowledged not knowing his is not father
No? Move to dismiss
Motions Filed – GS 50-13.13
Adoption / Legitimation

Has he adopted child?

Has he legitimated child?
Yes? Move to dismiss
Motions Filed – GS 50-13.13
Legitimation

By marriage?

When mother married to another man?

By artificial insemination
Yes? Move to dismiss
Motions Filed – GS 50-13.13
Plaintiff in Military

Default judgment?

Date of separation?
Motions Filed – GS 50-13.13
Guardian Ad Litem

On behalf of child

At discretion of Court
Motions Filed – GS 50-13.13
Paternity Testing

Court order

GS 8-50.1 governs admissibility, weight

Failure to comply – contempt, sanction
Motions Filed – GS 50-13.13
Suspension of Support Obligation

Suspended in IV-D case

Not suspended if support paid to mother
Motions Filed – GS 50-13.13
Support Obligation Termination

If paternity test indicates non-paternity

If plaintiff did not acknowledge paternity
Motions Filed – GS 50-13.13
Support Obligation Termination

If plaintiff acknowledged paternity not knowing
he was not father
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
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

Motions Filed – GS 50-13.13
Plaintiff Meets Requirements

Court may:
 Tax
paternity test costs to mother
??
Lisa K. Bradley
Assistant Attorney General
NC Department of Justice
[email protected]
919.716.6850