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3 | 3 | | LCO No. 2203 1 of 10 |
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4 | 4 | | |
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5 | 5 | | General Assembly Raised Bill No. 317 |
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6 | 6 | | February Session, 2020 |
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7 | 7 | | LCO No. 2203 |
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8 | 8 | | |
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9 | 9 | | |
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10 | 10 | | Referred to Committee on JUDICIARY |
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11 | 11 | | |
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12 | 12 | | |
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13 | 13 | | Introduced by: |
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14 | 14 | | (JUD) |
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15 | 15 | | |
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16 | 16 | | |
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17 | 17 | | |
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18 | 18 | | |
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19 | 19 | | AN ACT CONCERNING TH E OPENING OR SETTING ASIDE OF A |
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20 | 20 | | PATERNITY JUDGMENT. |
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21 | 21 | | Be it enacted by the Senate and House of Representatives in General |
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22 | 22 | | Assembly convened: |
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23 | 23 | | |
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24 | 24 | | Section 1. Subsection (b) of section 46b-171 of the general statutes is 1 |
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25 | 25 | | repealed and the following is substituted in lieu thereof (Effective October 2 |
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26 | 26 | | 1, 2020): 3 |
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27 | 27 | | (b) (1) Except as provided in subdivisions (2) and (3) of this 4 |
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28 | 28 | | subsection, a judgment of paternity entered by the Superior Court or 5 |
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29 | 29 | | family support magistrate pursuant to this chapter may not be opened 6 |
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30 | 30 | | or set aside unless a motion to open or set aside is filed not later than 7 |
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31 | 31 | | four months after the date on which the judgment was entered, and only 8 |
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32 | 32 | | upon a showing of reasonable cause, or that a valid defense to the 9 |
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33 | 33 | | petition for a judgment of paternity existed, in whole or in part, at the 10 |
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34 | 34 | | time judgment was rendered, and that the person seeking to open or set 11 |
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35 | 35 | | aside the judgment was prevented by mistake, accident or other 12 |
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36 | 36 | | reasonable cause from making a valid defense. The court or a family 13 |
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37 | 37 | | support magistrate may not order genetic testing to determine paternity 14 |
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38 | 38 | | unless such court or magistrate determines that the person seeking to 15 Raised Bill No. 317 |
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39 | 39 | | |
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40 | 40 | | |
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41 | 41 | | |
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42 | 42 | | LCO No. 2203 2 of 10 |
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43 | 43 | | |
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44 | 44 | | open or set aside the judgment of paternity pursuant to this subdivision 16 |
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45 | 45 | | has made such a showing of reasonable cause or established the 17 |
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46 | 46 | | existence of a valid defense. 18 |
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47 | 47 | | (2) The Superior Court or a family support magistrate may consider 19 |
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48 | 48 | | a motion to open or set aside a judgment of paternity filed more than 20 |
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49 | 49 | | four months after such judgment was entered if such court or magistrate 21 |
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50 | 50 | | determines that the judgment was entered due to fraud, duress or 22 |
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51 | 51 | | material mistake of fact, with the burden of proof on the person seeking 23 |
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52 | 52 | | to open or set aside such judgment. A court or family support magistrate 24 |
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53 | 53 | | may not order genetic testing to determine paternity unless such court 25 |
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54 | 54 | | or magistrate determines that the person seeking to open or set aside the 26 |
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55 | 55 | | judgment of paternity under this subdivision has met such burden. 27 |
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56 | 56 | | (3) If the court or family support magistrate, as the case may be, 28 |
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57 | 57 | | determines that the person seeking to open or set aside a judgment of 29 |
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58 | 58 | | paternity under subdivision (2) of this subsection has met his or her 30 |
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59 | 59 | | burden of demonstrating fraud, duress or material mistake of fact, such 31 |
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60 | 60 | | court or magistrate shall set aside the judgment only upon determining 32 |
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61 | 61 | | that doing so is in the best interest of the child. In evaluating the best 33 |
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62 | 62 | | interest of the child, the court or magistrate may consider, but shall not 34 |
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63 | 63 | | be limited to, the following factors: 35 |
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64 | 64 | | (A) Any genetic information available to the court or family support 36 |
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65 | 65 | | magistrate concerning paternity; 37 |
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66 | 66 | | (B) The past relationship between the child and (i) the person 38 |
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67 | 67 | | previously adjudged father of the child, and (ii) such person's family; 39 |
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68 | 68 | | (C) The child's future interests in knowing the identity of his or her 40 |
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69 | 69 | | biological father; 41 |
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70 | 70 | | (D) The child's potential emotional and financial support from his or 42 |
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71 | 71 | | her biological father; and 43 |
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72 | 72 | | (E) Any potential harm the child may suffer by disturbing the 44 |
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73 | 73 | | judgment of paternity, including loss of a parental relationship and loss 45 Raised Bill No. 317 |
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74 | 74 | | |
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75 | 75 | | |
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76 | 76 | | |
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77 | 77 | | LCO No. 2203 3 of 10 |
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78 | 78 | | |
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79 | 79 | | of financial support. 46 |
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80 | 80 | | (4) During the pendency of any motion to open or set aside a 47 |
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81 | 81 | | judgment of paternity filed pursuant to this subsection, any 48 |
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82 | 82 | | responsibilities arising from such earlier judgment shall continue, 49 |
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83 | 83 | | except for good cause shown. 50 |
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84 | 84 | | [(b)] (5) Whenever the Superior Court or family support magistrate 51 |
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85 | 85 | | [reopens] opens a judgment of paternity [entered] pursuant to this 52 |
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86 | 86 | | [section] subsection in which (A) a person was found to be the father of 53 |
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87 | 87 | | a child who is or has been supported by the state, and (B) the court or 54 |
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88 | 88 | | family support magistrate finds that the person adjudicated the father 55 |
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89 | 89 | | is not the father of the child, the Department of Social Services shall 56 |
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90 | 90 | | refund to such person any money paid to the state by such person 57 |
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91 | 91 | | during the period such child was supported by the state. 58 |
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92 | 92 | | Sec. 2. Subsection (a) of section 46b-172 of the general statutes is 59 |
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93 | 93 | | repealed and the following is substituted in lieu thereof (Effective October 60 |
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94 | 94 | | 1, 2020): 61 |
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95 | 95 | | (a) (1) In lieu of or in conclusion of proceedings under section 46b-62 |
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96 | 96 | | 160, a written acknowledgment of paternity executed and sworn to by 63 |
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97 | 97 | | the putative father of the child when accompanied by (A) an attested 64 |
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98 | 98 | | waiver of the right to a blood test, the right to a trial and the right to an 65 |
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99 | 99 | | attorney, (B) a written affirmation of paternity executed and sworn to 66 |
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100 | 100 | | by the mother of the child, and (C) if the person subject to the 67 |
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101 | 101 | | acknowledgment of paternity is an adult eighteen years of age or older, 68 |
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102 | 102 | | a notarized affidavit affirming consent to the voluntary 69 |
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103 | 103 | | acknowledgment of paternity, shall have the same force and effect as a 70 |
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104 | 104 | | judgment of the Superior Court. It shall be considered a legal finding of 71 |
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105 | 105 | | paternity without requiring or permitting judicial ratification, and shall 72 |
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106 | 106 | | be binding on the person executing the same whether such person is an 73 |
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107 | 107 | | adult or a minor, subject to subdivision (2) of this subsection. Such 74 |
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108 | 108 | | acknowledgment shall not be binding unless, prior to the signing of any 75 |
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109 | 109 | | affirmation or acknowledgment of paternity, the mother and the 76 |
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110 | 110 | | putative father are given oral and written notice of the alternatives to, 77 Raised Bill No. 317 |
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111 | 111 | | |
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112 | 112 | | |
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113 | 113 | | |
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114 | 114 | | LCO No. 2203 4 of 10 |
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115 | 115 | | |
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116 | 116 | | the legal consequences of, and the rights and responsibilities that arise 78 |
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117 | 117 | | from signing such affirmation or acknowledgment. The notice to the 79 |
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118 | 118 | | mother shall include, but shall not be limited to, notice that the 80 |
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119 | 119 | | affirmation of paternity may result in rights of custody and visitation, 81 |
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120 | 120 | | as well as a duty of support, in the person named as father. The notice 82 |
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121 | 121 | | to the putative father shall include, but not be limited to, notice that such 83 |
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122 | 122 | | father has the right to contest paternity, including the right to 84 |
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123 | 123 | | appointment of counsel, a genetic test to determine paternity and a trial 85 |
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124 | 124 | | by the Superior Court or a family support magistrate and that 86 |
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125 | 125 | | acknowledgment of paternity will make such father liable for the 87 |
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126 | 126 | | financial support of the child until the child's eighteenth birthday. In 88 |
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127 | 127 | | addition, the notice shall inform the mother and the father that DNA 89 |
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128 | 128 | | testing may be able to establish paternity with a high degree of accuracy 90 |
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129 | 129 | | and may, under certain circumstances, be available at state expense. The 91 |
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130 | 130 | | notices shall also explain the right to rescind the acknowledgment, as 92 |
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131 | 131 | | set forth in subdivision (2) of this subsection, including the address 93 |
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132 | 132 | | where such notice of rescission should be sent, and shall explain that the 94 |
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133 | 133 | | acknowledgment cannot be challenged after sixty days, except in court 95 |
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134 | 134 | | upon a showing of fraud, duress or material mistake of fact. 96 |
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135 | 135 | | (2) The mother and the acknowledged father shall have the right to 97 |
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136 | 136 | | rescind such affirmation or acknowledgment in writing within the 98 |
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137 | 137 | | earlier of (A) sixty days, or (B) the date of an agreement to support such 99 |
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138 | 138 | | child approved in accordance with subsection (b) of this section or an 100 |
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139 | 139 | | order of support for such child entered in a proceeding under subsection 101 |
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140 | 140 | | (c) of this section. 102 |
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141 | 141 | | (3) (A) An acknowledgment executed in accordance with subdivision 103 |
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142 | 142 | | (1) of this subsection may be challenged in court or before a family 104 |
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143 | 143 | | support magistrate after the rescission period only on the basis of fraud, 105 |
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144 | 144 | | duress or material mistake of fact which may include evidence that he 106 |
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145 | 145 | | is not the father, with the burden of proof upon the challenger. A court 107 |
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146 | 146 | | or family support magistrate may not order genetic testing to determine 108 |
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147 | 147 | | paternity unless the court or magistrate, as the case may be, determines 109 |
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148 | 148 | | that the challenger has met such burden. 110 Raised Bill No. 317 |
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149 | 149 | | |
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150 | 150 | | |
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151 | 151 | | |
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152 | 152 | | LCO No. 2203 5 of 10 |
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153 | 153 | | |
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154 | 154 | | (B) If the court or family support magistrate, as the case may be, 111 |
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155 | 155 | | determines that the challenger has met his or her burden under 112 |
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156 | 156 | | subparagraph (A) of this subdivision, the acknowledgment of paternity 113 |
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157 | 157 | | shall be set aside only if such court or magistrate determines that doing 114 |
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158 | 158 | | so is in the best interest of the child. In evaluating the best interest of the 115 |
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159 | 159 | | child, the court or magistrate may consider, but shall not be limited to, 116 |
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160 | 160 | | the following factors: 117 |
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161 | 161 | | (i) Any genetic information available to the court concerning 118 |
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162 | 162 | | paternity; 119 |
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163 | 163 | | (ii) The past relationship between the child and (I) the person who 120 |
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164 | 164 | | executed an acknowledgment of paternity, and (II) such person's family; 121 |
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165 | 165 | | (iii) The child's future interests in knowing the identity of his or her 122 |
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166 | 166 | | biological father; 123 |
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167 | 167 | | (iv) The child's potential emotional and financial support from his or 124 |
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168 | 168 | | her biological father; and 125 |
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169 | 169 | | (v) Any potential harm the child may suffer by disturbing the 126 |
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170 | 170 | | acknowledgment of paternity, including loss of a parental relationship 127 |
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171 | 171 | | and loss of financial support. 128 |
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172 | 172 | | (C) During the pendency of any [such] challenge to a previous 129 |
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173 | 173 | | acknowledgment of paternity, any responsibilities arising from such 130 |
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174 | 174 | | acknowledgment shall continue except for good cause shown. 131 |
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175 | 175 | | [(3)] (4) All written notices, waivers, affirmations and 132 |
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176 | 176 | | acknowledgments required under subdivision (1) of this subsection, 133 |
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177 | 177 | | and rescissions authorized under subdivision (2) of this subsection, shall 134 |
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178 | 178 | | be on forms prescribed by the Department of Public Health, provided 135 |
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179 | 179 | | such acknowledgment form includes the minimum requirements 136 |
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180 | 180 | | specified by the Secretary of the United States Department of Health and 137 |
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181 | 181 | | Human Services. All acknowledgments and rescissions executed in 138 |
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182 | 182 | | accordance with this subsection shall be filed in the paternity registry 139 |
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183 | 183 | | established and maintained by the Department of Public Health under 140 Raised Bill No. 317 |
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184 | 184 | | |
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185 | 185 | | |
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186 | 186 | | |
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187 | 187 | | LCO No. 2203 6 of 10 |
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188 | 188 | | |
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189 | 189 | | section 19a-42a. 141 |
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190 | 190 | | [(4)] (5) An acknowledgment of paternity signed in any other state 142 |
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191 | 191 | | according to its procedures shall be given full faith and credit by this 143 |
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192 | 192 | | state. 144 |
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193 | 193 | | Sec. 3. Section 46b-172a of the general statutes is repealed and the 145 |
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194 | 194 | | following is substituted in lieu thereof (Effective October 1, 2020): 146 |
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195 | 195 | | (a) Any person claiming to be the father of a child who was born out 147 |
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196 | 196 | | of wedlock and for whom paternity has not yet been established may 148 |
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197 | 197 | | file a claim for paternity with the Probate Court for the district in which 149 |
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198 | 198 | | either the mother or the child resides, on forms provided by such court. 150 |
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199 | 199 | | The claim may be filed at any time during the life of the child, whether 151 |
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200 | 200 | | before, on or after the date the child reaches the age of eighteen, or after 152 |
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201 | 201 | | the death of the child, but not later than sixty days after the date of notice 153 |
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202 | 202 | | under section 45a-716. The claim shall contain the claimant's name and 154 |
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203 | 203 | | address, the name and last-known address of the mother and the month 155 |
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204 | 204 | | and year of the birth or expected birth of the child. Not later than five 156 |
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205 | 205 | | days after the filing of a claim for paternity, the court shall cause a 157 |
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206 | 206 | | certified copy of such claim to be served upon the mother or prospective 158 |
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207 | 207 | | mother of such child by personal service or service at her usual place of 159 |
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208 | 208 | | abode, and to the Attorney General by first class mail. The Attorney 160 |
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209 | 209 | | General may file an appearance and shall be and remain a party to the 161 |
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210 | 210 | | action if the child is receiving or has received aid or care from the state, 162 |
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211 | 211 | | or if the child is receiving child support enforcement services, as defined 163 |
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212 | 212 | | in subdivision (2) of subsection (b) of section 46b-231. The claim for 164 |
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213 | 213 | | paternity shall be admissible in any action for paternity under section 165 |
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214 | 214 | | 46b-160, and shall estop the claimant from denying his paternity of such 166 |
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215 | 215 | | child and shall contain language that he acknowledges liability for 167 |
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216 | 216 | | contribution to the support and education of the child after the child's 168 |
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217 | 217 | | birth and for contribution to the pregnancy-related medical expenses of 169 |
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218 | 218 | | the mother. 170 |
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219 | 219 | | (b) If a claim for paternity is filed by the father of any minor child 171 |
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220 | 220 | | who was born out of wedlock, the Probate Court shall schedule a 172 Raised Bill No. 317 |
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221 | 221 | | |
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222 | 222 | | |
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223 | 223 | | |
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224 | 224 | | LCO No. 2203 7 of 10 |
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225 | 225 | | |
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226 | 226 | | hearing on such claim, send notice of the hearing to all parties involved 173 |
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227 | 227 | | and proceed accordingly. 174 |
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228 | 228 | | (c) The child shall be made a party to the action and shall be 175 |
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229 | 229 | | represented by a guardian ad litem appointed by the court in 176 |
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230 | 230 | | accordance with section 45a-708. Payment shall be made in accordance 177 |
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231 | 231 | | with such section from funds appropriated to the Judicial Department, 178 |
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232 | 232 | | except that, if funds have not been included in the budget of the Judicial 179 |
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233 | 233 | | Department for such purposes, such payment shall be made from the 180 |
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234 | 234 | | Probate Court Administration Fund. 181 |
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235 | 235 | | (d) In the event that the mother or the claimant father is a minor, the 182 |
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236 | 236 | | court shall appoint a guardian ad litem to represent him or her in 183 |
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237 | 237 | | accordance with the provisions of section 45a-708. Payment shall be 184 |
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238 | 238 | | made in accordance with said section from funds appropriated to the 185 |
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239 | 239 | | Judicial Department, except that, if funds have not been included in the 186 |
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240 | 240 | | budget of the Judicial Department for such purposes, such payment 187 |
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241 | 241 | | shall be made from the Probate Court Administration Fund. 188 |
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242 | 242 | | (e) By filing a claim under this section, the putative father submits to 189 |
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243 | 243 | | the jurisdiction of the Probate Court. 190 |
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244 | 244 | | (f) Once alleged parental rights of the father have been adjudicated in 191 |
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245 | 245 | | his favor under subsection (b) of this section, or acknowledged as 192 |
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246 | 246 | | provided for under section 46b-172, as amended by this act, his rights 193 |
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247 | 247 | | and responsibilities shall be equivalent to those of the mother, including 194 |
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248 | 248 | | those rights defined under section 45a-606. Thereafter, disputes 195 |
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249 | 249 | | involving custody, visitation or support shall be transferred to the 196 |
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250 | 250 | | Superior Court under chapter 815j, except that the Probate Court may 197 |
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251 | 251 | | enter a temporary order for custody, visitation or support until an order 198 |
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252 | 252 | | is entered by the Superior Court. 199 |
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253 | 253 | | (g) Failing perfection of parental rights as prescribed by this section, 200 |
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254 | 254 | | any person claiming to be the father of a child who was born out of 201 |
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255 | 255 | | wedlock (1) who has not been adjudicated the father of such child by a 202 |
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256 | 256 | | court of competent jurisdiction, [or] (2) who has not acknowledged in 203 |
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257 | 257 | | writing that he is the father of such child, [or] (3) who has not 204 Raised Bill No. 317 |
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258 | 258 | | |
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259 | 259 | | |
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260 | 260 | | |
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261 | 261 | | LCO No. 2203 8 of 10 |
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262 | 262 | | |
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263 | 263 | | contributed regularly to the support of such child, or (4) whose name 205 |
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264 | 264 | | does not appear on the birth certificate, shall cease to be a legal party in 206 |
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265 | 265 | | interest in any proceeding concerning the custody or welfare of the 207 |
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266 | 266 | | child, including, but not limited to, guardianship and adoption, unless 208 |
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267 | 267 | | he has shown a reasonable degree of interest, concern or responsibility 209 |
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268 | 268 | | for the child's welfare. 210 |
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269 | 269 | | (h) Notwithstanding the provisions of this section, after the death of 211 |
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270 | 270 | | the father of a child born out of wedlock, a party deemed by the court 212 |
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271 | 271 | | to have a sufficient interest may file a claim for paternity on behalf of 213 |
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272 | 272 | | such father with the Probate Court for the district in which either the 214 |
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273 | 273 | | putative father resided or the party filing the claim resides. If a claim for 215 |
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274 | 274 | | paternity is filed pursuant to this subsection, the Probate Court shall 216 |
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275 | 275 | | schedule a hearing on such claim, send notice of the hearing to all parties 217 |
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276 | 276 | | involved and proceed accordingly. 218 |
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277 | 277 | | (i) (1) Except as provided in subdivisions (2) and (3) of this subsection, 219 |
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278 | 278 | | a judgment of paternity entered under this section may not be opened 220 |
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279 | 279 | | or set aside unless a motion to open or set aside is filed with the Probate 221 |
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280 | 280 | | Court district that entered such judgment not later than four months 222 |
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281 | 281 | | after the date on which it was entered, and only upon a showing of 223 |
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282 | 282 | | reasonable cause, or that a valid defense to the claim for a judgment of 224 |
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283 | 283 | | paternity existed, in whole or in part, at the time judgment was entered, 225 |
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284 | 284 | | and that the person seeking to open or set aside such judgment was 226 |
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285 | 285 | | prevented by mistake, accident or other reasonable cause from making 227 |
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286 | 286 | | a valid defense. The Probate Court may not order genetic testing to 228 |
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287 | 287 | | determine paternity unless and until the court determines that the 229 |
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288 | 288 | | person seeking to open or set aside the judgment of paternity pursuant 230 |
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289 | 289 | | to this subdivision has made such a showing of reasonable cause or 231 |
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290 | 290 | | established the existence of a valid defense. 232 |
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291 | 291 | | (2) The Probate Court in the district where a judgment of paternity 233 |
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292 | 292 | | was entered pursuant to this section may consider a motion to open or 234 |
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293 | 293 | | set aside such judgment filed more than four months after such 235 |
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294 | 294 | | judgment was rendered if such court determines that the judgment was 236 |
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295 | 295 | | rendered due to fraud, duress or material mistake of fact, with the 237 Raised Bill No. 317 |
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296 | 296 | | |
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297 | 297 | | |
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298 | 298 | | |
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299 | 299 | | LCO No. 2203 9 of 10 |
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300 | 300 | | |
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301 | 301 | | burden of proof on the person seeking to open or set aside such 238 |
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302 | 302 | | judgment. Such court may not order genetic testing to determine 239 |
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303 | 303 | | paternity unless and until the court determines that the person seeking 240 |
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304 | 304 | | to open or set aside the judgment of paternity under this subdivision 241 |
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305 | 305 | | has met such burden. 242 |
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306 | 306 | | (3) If such court determines that the person seeking to open or set 243 |
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307 | 307 | | aside a judgment of paternity under subdivision (2) of this subsection 244 |
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308 | 308 | | has met his or her burden of demonstrating fraud, duress or material 245 |
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309 | 309 | | mistake of fact, such court shall set aside the judgment only upon 246 |
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310 | 310 | | determining that doing so is in the best interest of the child. In 247 |
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311 | 311 | | evaluating the best interest of the child, the court may consider, but shall 248 |
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312 | 312 | | not be limited to, the following factors: 249 |
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313 | 313 | | (A) Any genetic information available to the court concerning 250 |
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314 | 314 | | paternity; 251 |
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315 | 315 | | (B) The past relationship between the child and (i) the person 252 |
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316 | 316 | | previously adjudged father of the child, and (ii) such person's family; 253 |
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317 | 317 | | (C) The child's future interests in knowing the identity of his or her 254 |
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318 | 318 | | biological father; 255 |
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319 | 319 | | (D) The child's potential emotional and financial support from his or 256 |
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320 | 320 | | her biological father; and 257 |
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321 | 321 | | (E) Any potential harm the child may suffer by disturbing the 258 |
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322 | 322 | | judgment of paternity, including loss of a parental relationship and loss 259 |
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323 | 323 | | of financial support. 260 |
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324 | 324 | | (4) Upon the filing of any motion to open and set aside a judgment of 261 |
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325 | 325 | | paternity filed pursuant to this subsection, the Probate Court shall 262 |
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326 | 326 | | schedule a hearing on the motion and provide notice of the hearing and 263 |
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327 | 327 | | a copy of the motion to all interested parties, including the Attorney 264 |
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328 | 328 | | General. 265 |
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329 | 329 | | (5) During the pendency of any motion to open or set aside a 266 |
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330 | 330 | | judgment of paternity filed pursuant to this subsection, any 267 Raised Bill No. 317 |
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331 | 331 | | |
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332 | 332 | | |
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333 | 333 | | |
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334 | 334 | | LCO No. 2203 10 of 10 |
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335 | 335 | | |
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336 | 336 | | responsibilities arising from such earlier judgment shall continue, 268 |
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337 | 337 | | except for good cause shown. 269 |
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338 | 338 | | This act shall take effect as follows and shall amend the following |
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339 | 339 | | sections: |
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340 | 340 | | |
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341 | 341 | | Section 1 October 1, 2020 46b-171(b) |
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342 | 342 | | Sec. 2 October 1, 2020 46b-172(a) |
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343 | 343 | | Sec. 3 October 1, 2020 46b-172a |
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344 | 344 | | |
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345 | 345 | | Statement of Purpose: |
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346 | 346 | | To clarify court procedures with respect to the opening or setting aside |
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347 | 347 | | of a paternity judgment entered by the Superior Court, a family support |
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348 | 348 | | magistrate or the Probate Court. |
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349 | 349 | | [Proposed deletions are enclosed in brackets. Proposed additions are indicated by underline, except |
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350 | 350 | | that when the entire text of a bill or resolution or a section of a bill or resolution is new, it is not |
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351 | 351 | | underlined.] |
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352 | 352 | | |
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